Monday, April 28, 2008

Drug decriminalisation in Argentina?

It appears that Argentina is on course to join the growing trend in states, in South America and beyond, decriminalising personal possession of drugs. A story on this Mexican news site (El Finaciero) notes that*:

Buenos Aires, April 23 .- A federal court in Buenos Aires decriminalize individual consumption of drugs in the Argentine capital, which would, in the process, anul thousands of cases of persons accused of possessing small amounts of marijuana, according to the judgement published Today the press in Buenos Aires.

The ruling states that the Board of 1 Federal Chamber of appeals declared unconstitutional sections of the law that punishes drug users, enacted in 1989.

The rule punishes consumers questioned on the grounds that are the backbone of a chain that ends in drug trafficker.

But the court ruled that such a presumption only generated "an avalanche of records for consumers without achieving move up the chain of trafficking" in drugs.

The ruling was applied to the case of two youths arrested by police for possession of marijuana cigarettes and pills of ecstasy when attending a celebration of electronic music in Buenos Aires in May 2007.

Although the issue should be settled in the Supreme Court, the court's ruling in Buenos Aires is in line with government policy Cristina Fernandez de Kirchner in favour of reforming the laws to decriminalize drug use.

During the 51 Special Session of the Economic and Social Council of the UN, held last month in Vienna, the Argentine Minister of Justice and Security, Anibal Fernandez, raised the "complete failure" of the policy of punishing drug users.

In this way, and for the first time in 30 years, Argentina abandoned its commitment to the U.S. position of pursuing both the drug trafficker and the consumer.**

So it would appear that in the federal court has done more than establish case law and will apparently have a retrospective impact on previous convictions. Unfortunately I don't have much more information or details at this stage, but this is apparently only one case in one Buenos Aires federal court, although there is another similar case pending in Argentina's supreme court that could have a similar impact but on a national scale (more details from Argentinian readers are welcome).

It is important to make it clear that we are not talking about any form of legally regulated drug supply in this case. 'Decriminalisation' in this context and its usual understanding in drug policy discourse refers only to the actual or de-facto removal of criminal sanctions for personal possession and use, and does not effect the criminal markets that supply users. Moves towards decriminalisation of this kind have already occurred in a number of countries in South America, with other actively discussing it (including Brazil, Colombia, Bolivia, Venuezuela, Honduras and Equador) and elsewhere around the world including Western Australia, The Russian Federation, Portugal, Spain, Italy, some German Lander, Switzerland and the Netherlands. For cannabis only the list is much longer and includes 13 US states.

In practice, such 'decriminalisation' takes a range of administrative forms. In some cases the criminal sanctions remain but are not, or are only rarely enforced (for example, the Netherlands), whilst other states have translated formerly criminal punishments into administrative or civil sanctions that are responded to with a fine (Spain) or other sanction (suspension of drivng license in Italy, following a similar constitutional challenge), or combination of civil sanctions with a potential treatment referral (Portugal). This EMCDDA briefing provides more detail about decriminalisation in Europe.

Such moves can be seen as testing what is allowable within the spirit of the UN conventions (to which almost all states are signatories , and that possession is punishable but does not specify the penalty), but despite the not infrequent protestations of the UN convention's nominal enforcers, the International Narcotics Control Board, the moves do not violate the letter of the convention wording in technical terms.

That South America is, like Europe, providing a pole of reform states moving away from the heavy handed punitive approach to drug users is perhaps unsuprising. The continent has suffered more than most from the - as the Head of the UN would put it - negative 'unintended consequences' of enforcing prohibition. (The most destructive of the continent's prohibition-related problems relate to the production side of the illicit drug phenomenon and this broader debate is also active at a high level, and gaining momentum). For many South American countries, whilst sharing the global consensus in seeking to reduce drug related harms, there is a growing understanding some of the more oppressive and counterproductive elements of drug control reflect an outdated US mindset, and pressure to conform via the US/UN drug agency axis increasingly feels like imperialist imposition. Mexico provided a recent example of how such moves have been dramatically stifled by US pressure.

*as translated by google
** Reuters in credited but I haven't turned up the original report

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