SPAINH - Magistrate in Spain.

ABSTRACT: The drug prohibition system causes:

1) an extreme lack of law enforcement;

2) the marginalization of many people who normally would not be considered as delinquent;

3) growing unrest in the urban centers;

4) an increased demand for more repression and control. As a whole these factors are not democratic in nature and might lead to police state structures. An alternative legislation is called for, which would acknowledge that private life cannot be regulated.

("THE COST OF PROHIBITION ON DRUGS", Papers of the International

Anti-prohibitionism Forum, Brussels 28th september - 1st october 1988; Ed. Radical Party)

My intention here is to share experiences rather than offer opinions, as I believe we all share a common conviction which is opposed to the principle of prohibition.

What is important is that we share our experiences and reflections on the situations we have encountered in our respective countries, in the interests of finding an alternative.

As our President said, I am a magistrate in Spain, presently in Madrid, and I can assure you that the laws on drugs give rise to very special questions, much more complex ones than any raised in previous discussions.

The prohibitionist approach is not only contrary to human rights, unjust, cruel, and so on, it is also essentially pointless.

I believe that this is the fundamental starting point. In all the discussions we have had with the authorities in my country, their only comment on the present legislation is that things would be much worse with a permissive attitude. Nobody has hazarded pointing out that the present situation is disastrous.

It has been interesting to be able to compare the situation in my own country with those in other countries - in France, for example, or here in Brussels, where the simple possession of drugs - even for private use - is a criminal offence. This is not the case in Spain. As you know, democracy in Spain is a fairly recent development. During the first years, and upon the election of the Socialists Party to government, there was a press campaign which was interpreted to mean that the use and consumption of soft drugs had been liberalized, that there was a greater degree of permissiveness. This was not true; however, it is interesting that a press campaign could succeed in convincing the Spanish public of a non-existent liberalization, and it indicates the extent of the ignorance of that public as regards current legislation and the law in general.

Traditional legislation in the Spanish Penal Code - even under Franco - has always recognized not only the right to suicide but also the right to prostitution and the right to the use of drugs, even though such use might be negative and lead to poisoning, death, etc. In this respect, although there was no fundamental change in legislation, the attitude had changed.

That permissiveness introduced by the new laws of freedom, in a country which had hitherto never had a democracy, led to a new climate of tolerance towards the use of substances which can be grouped roughly under the heading of "drugs".

There is no doubt that the economic situation in Spain made it an easy market for drugs which were harder to trade in other countries.

As a result, heroin spread extensively in working-class areas and in industrial zones, which obviously bore the brunt of the serious economic crisis of the late 1970s and early 1980s. It is important to remember what the situation was at that time. As a magistrate, I know - although statistics are not available - that 90% of those detained for crimes against private property, assault, robbery with violence, etc., were heroin addicts, that is persons in depressed areas who used heroin and whose only way of obtaining it was through the black market or through crime. This situation clearly demonstrates that the drug laws in Spain, as they stand, contribute considerably to the increase in criminality.

It is interesting that whenever or wherever there have been discussions or conferences, in schools, universities, etc., inevitably, the first question asked is, "How is it that, if I have the right to take drugs, those drugs cannot be obtained legally?".

The only possible answer to that question is that the legislation is absolutely stupid, and that its application is absolutely impossible.

What does this mean? It means that we are obliging Spanish citizens - who would prefer not to - to cross the line between legality and illegality, into criminality and social alienation.

I think this point is an extremely important one. The terrible struggle against drugs is putting a crushing strain on many democratic institutions. Above all, it places in doubt the scope and function of the law as an expression of popular sovereignty.

For this reason, I must submit that, as social alienation is spreading progressively more into sectors of the population which ought not to be associated with it, we are obliged to reconsider the entire problem.

A very important fact to keep in mind is the very special role that the large cities (we must not forget that the 20th century is the century of urban development) play in the development of a nation. In these great conglomerations, it will not be possible to effectively apply the law unless citizens are deeply convinced that application is realistically accessible.

I am sure that my Spanish colleagues will agree with me when I say that this problem is not an exclusively Spanish one. It must be clear from the American films that we see constantly on television (not to mention films and novels from many other countries, France, for example, etc.) that there is a constant social demand for more police, more judges, more repression. There exists a deep social insecurity, a deep awareness that the traditional obligations as regards property, life, integrity, etc., are not being respected.

In other words, we are in the presence of a domino effect, towards more judges, more police, more prisons, more control, more repression.

I was horrified this morning to hear my colleague referring to an American President's wife congratulating a citizen for having denounced his father. I believe that the combination of a massive impotence of legislation and the massive demand for repression and control is leading us, step by step, towards a democracy empty of meaning and governed increasingly by the instruments of police and repression. I believe it important to recognize that legislation based on negative social experience and rooted in convenience does not provide an adequate basis for building a democracy.

It is in this context, I believe, that we must develop our concept of what the alternative to prohibition should be. In this respect, it is important to reflect on how the various instruments of the law could be used. Within this framework, I believe we must recognize that in a democratic society, the primary function of the law is to protect the liberty of every private citizen from any form of legislative regulation. The private life of individuals should not be subject to regulation. No one should be told how to regulate his or her morals, sexuality, diet, health, etc. All we have the right to do is establish certain limits which respect the minimum integrity necessary for each individual.

What is fundamental is that all legislation be coherent, logical and applicable.

The essential question here is, "If the law is inapplicable, why does it exist?" In answering that question, I will cite a recent development which might also give some indication of the direction to be taken in the near future.

Last spring in Madrid two modifications were made to the law. The first of these concerned the penalties (which were increased considerably) for the cultivation, trade, storage and so on, of drugs. The second concerned the prohibition of the use of tobacco in all public work-places and public meeting places. In this context, it might be worth pointing out that for the last two or three years, important educational programmes have been conducted on the harm caused by tobacco.

What exactly is the relation between what is on the one hand a further example of repressive legislation and on the other an important educational programme about the harm caused by tobacco? The fact is that many people are giving up smoking, but not because they are threatened by heavy fines. In my own office, for example, girls have not only given up smoking, but have requested that others do the same. It has not been necessary to impose fines of half a million pesetas.

What conclusion can be drawn from this? That legislation in these areas can never be effective, or result in anything more than a continuing increase in legal bureaucracy. Furthermore, any law which is passed, even if it is not observed, is always liable to use at the discretion of some judge and, even if it has fallen into disuse, can be invoked against an individual.

The example is a useful one. Legislation should be fundamentally contrary to prohibition, and above all establish the limits of legislative policy. If this is not the case, there will always be the danger of the law's being used in ways that are not legitimate. The function of the law should never be to impose uniform behaviour on citizens, but rather to safeguard their liberty, providing limitations only in those areas where a collision is possible between those rights and the reciprocal duties of one citizen to an other.

Therefore, it is important that we draft a plan for the future. One of the more important aspects of this would be the comparison of the typical sociological attitudes in the various countries and the relation between those attitudes and the legal traditions so important in pre-determining the sort of solutions we should be seeking.