As is the case with a lot of simple, straight forward questions, the answer is extremely complicated. Whether cannabis cultivation is legal or not depends on which region you inhabit in Spain and how loosely you throw around the term “legal”. Public opinion, law enforcement and the penal code are more or less inconsistent with each other in Spain. This leads to a lot of confusion about the law as it stands today and how that affects each individual’s behaviour with respect to the sale, consumption and cultivation of marijuana.
As it stands, growing weed in Spain is illegal if it is going to be sold illegally. With that being said, there’s no specific stipulation about growing marijuana for personal use, and this complicates matters. Social clubs have been able to grow and sell marijuana to their members because of this exact loophole. However, this blind spot in the law also means that each personal case that makes it to the courtroom is decided using case law and with the discretion of the judge.
The short answer to the question is blatantly no. It is not legal to grow weed in Spain. So how do so many people get away with it and why is there such a relaxed attitude about the enforcement of this law in Spain? The fact that authority attitudes differ from region to region doesn’t make things any easier for the everyday consumer either.
Trafficking vs. Personal Use
As far as the Spanish Criminal Code is concerned, Article 368 points out that cultivation and manufacture for the sale of trafficking and/or illegal consumption of narcotics, including marijuana, is illegal. This suggests that cannabis can’t be cultivated if it is going to be trafficked or consumed illegally. Hang on a minute. How does one consume legally and what does it mean to consume illegally?
The answer to this question lies in the fact that the personal use of marijuana is not really punishable. So even though cultivation is illegal, if it is for the purpose of personal use, it is not really punishable. By the way, there is a difference between “legal” and “not punishable”. It is still illegal to grow marijuana for personal use, but there is no real punishment for doing so. Confused yet?
Case law is used as the fundamental basis for ascertaining what amounts of weed constitute personal use and what amounts constitute drug trafficking. The factors are determined by cases which have already been tried in the past and include the amount of drugs seized, the criminal history of the person, the amount that they consume etc. It’s also worth noting that the Spanish government distinguishes between drugs that cause serious damage to health and those that aren’t so bad. So technically, as long as you can prove that you do not intend to traffick or even facilitate the use of marijuana by another person, you are not punishable according to the law.
The Organic Law 4 / 2015
The Organic Law 4, otherwise known as Ley Organica 4, which took place in March 2015 is essentially a citizen protection initiative. In Part 18, it stipulates that only those grow operations which are visible to the public eye (and aren’t for the purpose of trafficking, of course) can be punishable by a fine between 601 and 30,000 Euros, depending on the circumstances of the grow.
So now we’ve ascertained that you can’t grow marijuana to traffick and you definitely can’t grow somewhere that’s visible to the public under any conditions. But technically, so long as your grow is destined to end up in your own lungs and the operation takes place away from the public eye, you won’t be punished by the law.
Again, it’s really important to understand that this does not mean that growing marijuana in your house for personal reasons is legal. If there is any term we can use to define personal marijuana cultivation and use, it is decriminalized.
What Is The Punishment For Illegal Cultivation Of Marijuana?
If you are found guilty of the illegal cultivation of marijuana in Spain (which, remember, means cultivation for the purpose of trafficking), then you can face anywhere between 1 and 3 years in prison. The punishment depends on the number of drugs found as well as the criminal history of the person who is being charged.
It is also illegal to consume marijuana in public, and this too warrants some punishment according to Spanish law enforcement. The consumption of marijuana or any other illegal narcotic in public can sting you anywhere from 100 to 600 Euros. Smoking on the street or near public buildings is a big no no.
Law Enforcement, Catalonia, And The Rest Of Spain
To add a few more complications to this very complicated legal question, Spain’s autonomous Catalonia can make its own regulations and govern its own region. That means that the finer details of the law (and perhaps not so fine details) can be different in Catalonia than in the rest of Spain. As you can imagine, this creates a lot of public confusion and misinformation with respect to cannabis law.
Catalonia enacted its very own statute for the regulation of cannabis social clubs in Barcelona and the area. The act outlined the regulations for obtaining a membership, the production and transport of cannabis, the rights of the members and of the social clubs and more. This was obviously a step towards legalizing cannabis in Catalonia. Unfortunately, the act was considered to be inconsistent with federal law and unconstitutional and Catalonia lost the right to enforce the statute.
It doesn’t help that despite somewhat harsh laws, law enforcement doesn’t always go to the trouble of carrying out punishment. The Spanish police seem to pick and choose who gets punished without always remaining firm on the law. While one person can get fined 450 Euros for consuming cannabis in public, someone with a small growing operation in their basement might get off scot free.
The relaxed attitude of law enforcement is what has lead to the overall accepting attitude of the Spanish with respect to cannabis cultivation. It also contributes to why, for a moment there, the world thought that Spain was going to legalize cannabis.
How Do Barcelona Social Clubs Get Away With It?
Aside from the statute that we mentioned outlining the regulation of cannabis within social clubs, these weed-friendly institutions make their way through a loophole in the law. Remember the differentiation between trafficking and personal use that we talked about before? Well, this is how Barcelona social clubs manage to get away with cultivating and selling weed.
Technically a social club possesses only what is deemed necessary for the personal consumption of the members who go there. Because the clubs are private, restricted and everything takes place within the 4 walls of the venue, clubs avoid bad news from police or law enforcement. However, they have to keep exhaustive records of members and sales and have to be able to produce these records on demand.
The consumption of cannabis within a social club is considered legal because of the private setting and essentially because membership is limited. In order to obtain a membership, you must be invited by at least two current members or you must provide a medical document stating that medical marijuana is recommended.
As we’ve just discovered, the legalities surrounding the cultivation of cannabis are largely dependent on the circumstances. Depending on the reasons for growing and the place in which it is grown, it may or may not be legal to grow weed in Spain. And that makes for a very complicated answer to the question!
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