Article 58 of Law 8204 is not directly applicable in cases of auto-consumption of substances: individual and collective
Under paragraph 2 of this article, auto-consumption of substances in Costa Rica is generally not considered illegal. While the law lacks specific criteria for evaluating infractions under Article 58, jurisprudence consistently holds that auto-consumption is not criminalized, for example: Imagine someone is detained by a police officer and found illegal substances with him, if he acknowledge that the substances are for personal consumption, then no crime while be considered; while if he establishes that these are for a friend, he would be infringing the norm and consider to conduct an offense of "transporting" drugs. Although the law is silent on objective circumstances (purity, market value, quantity) of the substances, the costarican Judges has been taking the task of assessing the socio-economic context of the individuals involved. For example, a homeless person possessing a substance worth over $10,000 challenges the premise of auto-consumption, unlike a wealthy businessman where such an argument carries more weight. Same goes with quantity, it would be considered unreasonable to have 100 kilos of a substance for personal consumption.
Drawing parallels with Spanish case law, Costa Rican courts have acquitted individuals for collective substance consumption (collective auto-consumption) under four conditions:
1. The group is private, akin to a retreat setting;
2. consumption is immediate, prohibiting any form of takeaway;
3. no monetary transaction occurs for substance use, aligning with retreats where charges cover experiences, meals, lodging, and activities, rendering the ceremony a free, voluntary element; and,
4. participants must have prior experience, verifiable through written statements.
The article 58 of Law 8204 sanctions 15 behaviors, which can overlap[1] with the act of consuming drugs, because someone who consumes drugs must possess them, may transport them, and even produce or store them. Therefore, it's important to remember that drug self-consumption (Article 1 of Law 8204) is not prohibited in Costa Rica, and thus, it is not a crime[2]. In the words of recent jurisprudence from the year 2021: "While it is true that the offenses described in Article 58 mentioned are of abstract danger, when the actions described therein (distribute, trade, supply, manufacture, create, refine, transform, extract, prepare, cultivate, produce, transport, store, or sell, or possess with any of these purposes) are carried out solely for the purpose of possessing drugs for self-consumption and not for them to reach the hands of third parties, i.e., not as part of the drug trafficking cycle, they are not constitutive of a crime." (Criminal Sentence Appeals Court of Cartago, ruling 665-2021, dated December 2, 2021.)
But when is something considered auto-consumption? The law does not establish any criteria or parameters to determine if a drug is intended for auto-consumption. Therefore, experiential rules and the characteristics of each substance (size, weight, potency, quality, purity, market value) are crucial factors in determining whether a behavior constitutes a crime.
In summary, it's essential to consider the statement of the person found with the drugs to determine auto-consumption. The outcome can significantly differ based on whether they claim ownership of the drugs or not[3]. In cases where individuals deny ownership or identify themselves as non-users, courts completely rule out auto-consumption and proceed to assess if the person has engaged in any of the behaviors described in Article 58 of Law 8204.
It's important to note that the intent to traffic is not a necessary element for the commission of any conduct detailed in the crime.
The relevance of whether there is an intent to traffic comes into play in arguments regarding the non-existence of a crime due to auto-consumption. In such analyses, both objective[4] (size, purity, market value, concealment of the drug, etc.) and subjective (addiction, economic capacity) conditions of the situation must be considered. This helps to determine whether, from a reasonable viewpoint, it is auto-consumption or intended for trafficking. If the judge concludes that there is an intent to traffic, the defense of auto-consumption is typically dismissed. This was evident in a recent case in 2021, where the quantity of plants (71 plants) [5]possessed by the defendant led to the rejection of the auto-consumption theory:
"…in the objective criminal type involving the cultivation of drugs and possession of seeds capable of germination, it is not required to prove commercial intent. Article 58 of the Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, Related Activities, Money Laundering, and Terrorism Financing stipulates... specifically, the obtaining of the drug in its natural state, which was cultivated and reproduced, as well as processing, because among the seized items, oil, chopped plant material, and flower tops in the drying process were found. It is acknowledged that in certain cases, with the possession of a few plants or small amounts of drugs, it can prima facie be inferred as possession for personal use, which has been considered atypical in repeated jurisprudence. However, this is not the case under examination, where the amount of drugs seized (71 plants, 16 roots of harvested plants, 59.8 grams of buds, all of Cannabis sativa) clearly indicates that the drug exceeded personal consumption needs." (Third Circuit Court of Appeals of Alajuela, Third Section. Vote 1184-2021, at nine forty-five in the morning (09:45 a.m.) on November 19, 2021)
In summary, courts do not accept a defense line based on auto-consumption when large[6] quantities of drugs are seized[7], nor when the portions are excessively large[8], as such circumstances are often associated with drug trafficking. Furthermore, to determine the reasonableness of an appeal to 'auto-consumption' or personal drug use, judges will evaluate the socioeconomic[9] aspects of the defendant. This is because there must be a correlation between the defendant’s economic capacity and the market value of the drugs they intend to consume.
There have even been cases where the Court takes into account stains or damage left by the consumption of a certain substance and even the expiration time of the product to determine whether self-consumption is reasonable or not. Below is the reasoning of the Criminal Sentence Appeal Court II Judicial Circuit of San José in vote 222-2022 of February fifteenth, two thousand twenty-two:
“i) although the defendant stated that he had been consuming marijuana for approximately 20 years, specifically eight cigars a day, in the medical evaluation no signs compatible with that consumption were observed (which do not disappear with the passage of time), therefore For example, sepia stain on the teeth, erythema of the nasal septum or sepia stain on the fingers. Furthermore, given that the teeth have cavities and are in poor condition, it is clear that the absence of the stain, for example, is not a product of adequate oral hygiene; ii) the amount seized (be it the 1650.94 grams, or the 755.71 grams that were in the bag that also contained his documents) is not compatible with the consumption that he invokes, not only because of how complex it may be to preserve it but also because it exceeds the amount of consumption indicated by him; iii) it is unlikely that someone with a family, such as the accused, would take “the last money obtained from the end of his employment relationship” and invest it in the purchase of cannabis sativa. Furthermore, what is striking is the interest that he has shown in distorting the truth regarding his employment situation to try to project that he was a person with economic stability who only likes to consume..."
Which makes it clear how the different socioeconomic and personal factors are valued to determine whether there is self-consumption or not.
1.1 Is shared auto-consumption a crime?
Article 58 of Law 8204 establishes 15 different behaviors that are considered crimes in relation to prohibited drugs or substances; Some of these behaviors can overlap with self-consumption, especially when it is plural or shared. So there is a fine line between shared self-consumption and other prohibited conduct, such as supplying drugs to other people[10]. This situation raises the question: What are the conditions that must be met so that shared drug consumption is not a crime?
To answer that question, we must turn to national jurisprudence, which has taken the principles outlined by the Spanish courts[11] to establish that self-consumption occurs when the following conditions are met:
i. the supply for consumption at the moment,
ii. to an existing user,
iii. in a closed/private place,
iv. in a free transaction by another habitual drug user or person close to him
Confirming that it is not punishable, “the provision for non-onerous self-consumption, of doses limited to consumption at the time, and in a closed place.” (Third Chamber of the Supreme Court of Justice. Vote No. 01019 - 2020 of nine hours and fifty-three minutes on August fourteenth, two thousand and twenty)[12].
This last clarification goes hand in hand with the dominant position at a doctrinal level on the requirements for self-consumption to operate:
“… 1) The consumers who group together must already be addicts, since if they are not, there is a risk of enhancing their addiction and habituation in some of them, an assumption that can be subsumed in the crime, although some subsequent resolutions have modulated this requirement. to include casual weekend consumers;
2) The amount intended for shared consumption must be insignificant;
3) Consumption must take place in a closed place, in order to ensure that the danger of possession does not extend to third parties who did not participate in what was shared; 4) Consumers as a whole must be few and determined, as the only means to be able to gauge the number and personal circumstances;
5) The action of sharing must be sporadic and intimate, that is, without social significance, so those actions repeated over time that are framed around the usual provider will be typical;
and 6) It must be immediate consumption, carried out jointly at the same time of delivery in which the possibility of transmission to third parties is ruled out, in which there is no economic compensation and in which it is consumed immediately after delivery. reception in the designated place for everyone's consumption…” (Zárate Conde, 2018:658).
Now, in any case, it is important to highlight that the thesis of plural shared consumption has been alleged on different occasions, but the courts have been wary of accepting it as a viable defense[13]. This is why the 2020 ruling is of great relevance, as it provides clarity of the requirements that must be met for the defense of shared self-consumption to be accepted.
END NOTES
[1] This position is supported by the decision of the Criminal Sentence Appeals Court of the II Judicial Circuit of San José, which states: "In other words, when it comes to possession and transportation for self-consumption, despite the knowledge and intent of the accused regarding the nature of the object being transported, this is not sufficient to establish the typical adequacy of the conduct. Therefore, it cannot be simply inferred that because they possessed and transported that drug, it was intended for trafficking, but rather the verification of that purpose is required." (Criminal Sentence Appeals Court of the II Judicial Circuit of San José, ruling 704-2021, dated May 12, 2021.)
[2] The reasoning used by the judges has been as follows: “The judges are correct in considering that in the first paragraph of Article 58 of Law number 8204, the legislator did not establish as an element of the criminal type a ulterior purpose, for example, that of trafficking. However, in the legal analysis of the proven conduct, the Court forgot that in Costa Rica, drug consumption is not punishable because Law 8204 itself, in its third article, establishes the obligation of the State to carry out activities, not only for the prevention of the consumption of substances prohibited by the law but also for the identification of drug consumers in order to provide them with physical and mental rehabilitation treatments that allow their reintegration into society. This is complemented by a series of norms in the law in which a clear distinction is made between consumption and other behaviors related to the drug trafficking cycle.
For example, paragraph 99 states: "The Costa Rican Institute on Drugs shall be responsible for coordinating, designing, and implementing policies, plans, and strategies for the prevention of drug consumption, treatment, rehabilitation, and reintegration of drug dependents, as well as policies, plans, and strategies against the illicit trafficking of drugs and related activities, money laundering, and financing of terrorism." From its reading, it emerges that, with respect to drug consumers, the legislator's position is clear in that the State must provide them with treatment for their rehabilitation and reintegration, clearly distinguishing between the activity of consumption and the illicit trafficking and its related activities. This makes sense in light of Article 28 of the Political Constitution, which incorporates the principle of harm. Therefore, while it is true that the offenses described in the aforementioned Article 58 are of abstract danger, when the actions described there (distribute, trade, supply, manufacture, create, refine, transform, extract, prepare, cultivate, produce, transport, store, or sell, or possess with any of these purposes) are carried out solely for the purpose of possessing drugs exclusively for self-consumption and not for them to reach the hands of third parties, i.e., not as part of the drug trafficking cycle, they are not constitutive of a crime.
This is even more evident when analyzing what Article 100 provides: "The Costa Rican Institute on Drugs shall design the national plan on drugs, money laundering, and financing of terrorism, and shall coordinate policies for the prevention of drug consumption, treatment, rehabilitation, and reintegration of drug dependents, as well as policies for the prevention of crime: use, possession, commercialization, and illicit trafficking of drugs, narcotics, psychotropic substances, inhalable substances, drugs, and medications susceptible to physical or psychological dependence, precursors and controlled substances, according to the international conventions signed and ratified by Costa Rica and in accordance with any other legal instrument approved on this matter and those included in the official lists, published periodically in La Gaceta" (emphasis added); the interpretation of this paragraph allows us to affirm that drug consumption is not a crime, as the State is obliged to design different policies in each case, from which it follows that the actions that a person carries out to consume drugs cannot be sanctioned as a crime since the law does not establish that only end consumers, i.e., those who acquire the drug at the end of the drug trafficking cycle, can be subject to rehabilitation, but it must be interpreted that any consumer who participates at any stage of the cycle does not engage in criminal conduct.
It is also reasonable to note that from the perspective of protecting the legal interest of public health, there is no possibility that it will be endangered if the individual cultivates the drug exclusively for self-consumption, which reaffirms the idea that such conduct could not be considered a crime, although prohibited substances may still be seized and destroyed since there is no authorization in our legal system for their production under any circumstances." (Criminal Sentence Appeals Court of Cartago, Second Section. Ruling 665-2021, at eleven hours and ten minutes on December 2, 2021.)
[3] "For instance, there have been cases where the defendant's confession, combined with the quantity of the drug, is used to dismiss the notion of auto-consumption. Given the fine line between auto-consumption and other punishable behaviors, such denial opens the door for the commission of a crime. As stated by the Third Chamber: 'It was proven with the mere legal seizure of the drug at the defendant's residence, which could be ruled out for consumption, given that the accused himself denied any addiction to such substances and the fact that it was a significant quantity... As has been established, there are multiple behaviors outlined in Article 58 of the Law on Psychotropics, where the intent of distribution or trafficking is not necessary. Thus, if hypothetically this Chamber disregards the aforementioned contradiction, the proven facts still include the storage and possession of the seized drug, which was found at the defendant's residence.' (Third Chamber of the Supreme Court of Justice. Vote 140-2020 at eleven forty-five hours on February 7, 2020.)"
[4] As explained in the jurisprudence: 'As the prosecutor argues (see page 168 of the main file), the intent of trafficking in the possession and transportation of drugs can be established through a joint and harmonious analysis of other essential factual and evidentiary circumstances. These include the quantity of drugs seized from the defendant, the number of cigarettes that can be made from the marijuana seized, whether the accused is a drug addict, the market value of the seized drugs in relation to the income or salary reported by the accused and their family situation, the specific location of the drug in the vehicle, whether it was hidden or not, how the drug was packaged, and whether it was separated into doses, among many others. All these aspects were not evaluated based on a joint and harmonious appreciation by the Trial Court, which contravenes what is established in Article 184 of the Penal Procedure Code. This law indeed requires the court to assign the corresponding value to each piece of evidence, applying the rules of sound criticism strictly, and to adequately justify and substantiate the reasons why certain value is given to them, based on the joint and harmonious assessment of all the essential evidence.' (Appeal Court of Sentence, Second Section, vote No. 2013-00070 at 15:30 hours on February 8, 2013)
[5] Affirming the importance of analyzing whether the quantity of drugs carried by a person is reasonable for arguing auto-consumption, the Cartago Penal Sentencing Appeal Court acquitted an individual, concluding that the drugs in their possession were indeed for personal use. For reference, the judgment recounts the following: '...a green plastic bag containing a forty-centimeter long Cannabis sativa plant, as per the expert opinion DCF: 2019-04652-QUI; additionally, in the area known as the utility room, on a table, three plastic containers with their respective lids, a transparent plastic bag, a glass container without a lid, and three plastic bottles were found, containing inside 25.98 grams, 1.28 grams, 16.49 grams, and 8.69 grams of chopped Cannabis sativa plant respectively...' (Cartago Penal Sentencing Appeal Court, Second Section. Vote 665-2021 at eleven hours ten minutes on December 2, 2021.)
[6] For instance, appellate jurisprudence ruled that an individual possessing 1.8 kilograms of marijuana, sufficient to roll over 9,000 cigarettes, is excessive and cannot be considered auto-consumption. This led to the reversal of an acquittal and the conviction of the defendant to prison. (Third Circuit Court of Appeals of Alajuela, Second Section. Vote 00136-2016 at eleven fifty-five in the morning on March 8, 2013.)
[7] The decision by the Court of Appeals in Cartago, in verdict 019-2022 dated January 13, 2022, acquitted a defendant who had been found in possession of 6.48 grams of cannabis sativa, a plastic bag containing 6.44 grams of chopped cannabis, and another transparent plastic bag tied up containing 10.06 grams of cocaine fragments. The court ruled that the amount of drugs found was not significant and was consistent with what the defendant would typically consume. Furthermore, the presence of similar psychotropic substance residues in the defendant's body and their financial ability to purchase such quantities were considered. The key factor was the inability to prove the intent of trafficking, which is necessary to establish the charged crime. Personal drug use is not penalized under the law. Therefore, these factors led the court to doubt the existence of the alleged offense.
[8] The jurisprudence from the Third Chamber of the Supreme Court of Justice in Costa Rica has shown varying interpretations of what constitutes an amount of drugs for personal use (auto-consumption). Here's a summary of different cases:
· 161 grams of Cocaine for Personal Use (1997): In a 1997 ruling (Voto 630-1997, June 27), the Third Chamber determined that 161 grams of cocaine was a reasonable amount for personal use.
· 487 grams of Marijuana for Personal Use (2022): In 2022, the Penal Sentencing Appeals Court of Guanacaste (Voto 098-2022, March 9) accepted that 487 grams of marijuana could be for personal use.
· Confusion over 82 grams of Marijuana (2021): However, in 2021, there was a case where 82 grams of marijuana, enough to make 412 cigarettes according to expert testimony, was considered excessive for personal use. The defense was not accepted initially. The Third Chamber did accept an appeal, not due to the arguments about personal use, but because of contradictory evidence regarding the weight of the seized drugs (82 grams vs 60 grams). This led to a new trial (Voto 312-2021, November 5). The defense was criticized for failing to prove that the amount was reasonable, equating it to two "TenPacks" of cigarettes that could easily be consumed in a month.
· 185 grams of Marijuana in a Higher-Income Household (2021): Another ruling (Voto 1854-2021, December 1, 2021) from the Third Chamber considered the household income in determining what constituted personal use. In this case, for a household earning 850,000 colones per month, spending 120,000 colones to buy 185 grams of marijuana was deemed reasonable for personal use.
· 853 grams of Cocaine Case (2021): In contrast, a case involving the seizure of 853 grams of cocaine did not result in a successful defense of personal use (Penal Sentencing Appeals Court, III Judicial Circuit of Alajuela San Ramón, Voto 615-2021).
These cases reflect the complexity and variability in legal interpretations of what constitutes a reasonable amount for personal consumption of drugs in Costa Rica.
[9] The Third Chamber has had cases where even the family income of a couple comes to light where one of them resorts to self-consumption of drugs (marijuana), going so far as to evaluate the monthly economic consumption they make of a certain drug: “since it earns ¢ 370,000 per month and his wife ¢510,000 and that the family expenses are divided between them. To acquire the drug, the accused spent ¢ 120,000, a sum that was not determined to be disproportionate or difficult to obtain... "in addition to other evidentiary elements such as the fact that he had an addiction control at the IAFA. In this case, the accused was absolved of all punishment because it was considered that 185 grams of marijuana, given its particular conditions, were completely suitable for self-consumption. (Third Chamber of the Supreme Court of Justice, vote 1854-2021, December 1, two thousand twenty-one.)
[10] In these terms it was explained by a ruling that ruled on the appeal of an acquittal: “In this regard, it should be noted that certainly only self-consumption would be unpunished, because otherwise and as Giclis himself recognizes, we could be facing a activity of “supply” of drugs to third parties that would also be included within the activities reproached in article 58 of the law on psychotropics, drugs for unauthorized use and related activities, money laundering and financing of terrorism..." Court of Appeal of Criminal Sentence of the III Judicial Circuit of Alajuela, San Ramón. Vote No. 2019-00031, at 1:00 p.m., on January 23, 2019
[11] These conditions have been taken from the following ruling: Third Chamber of the Supreme Court of Justice. Vote No. 01019 - 2020 of nine hours and fifty-three minutes on the fourteenth of August, two thousand and twenty. This resolution cites a summary of Spanish jurisprudence that has informed the criteria of the highest criminal court in Costa Rica: “in comparative jurisprudence, the impunity of the free supply of drugs among consumers has been recognized, in cases such as purchases with common fund, reciprocal invitations between addicts and the so-called “compassionate supply”, which consists of delivering a dose without requiring any compensation, to a habitual drug user, so that they do not suffer the effects of withdrawal syndrome. In Spain, taking into account the definition of the legal good “public health” as affecting the collective, and not individual health, the Supreme Court has pointed out the atypicality of shared drug consumption between addicts, as well as the supply out of compassion for a consumer. to another, in cases in which certain conditions are verified that allow it to be determined that there was no impact on the protected legal good (public health, understood as "collective public health"). In this sense, the Spanish Supreme Court has ruled, in the rulings No. 210/2009, of March 6, 2009; No. 225/2006, of March 2, 2006; No. 1312/2005 of November 7, 2005; No. 1194/2003 of September 18, 2003 and No. 1441/2000 of September 22, 2000. Both the Spanish Supreme Court.”
[12] In 2020, it was not the first time that shared self-consumption of drugs was mentioned, we also found it in a 1995 case in which the Third Chamber heard such an allegation, but it is worth remembering that the legal framework applicable at that time is completely different from that of 2020. In this regard, see Resolution number 661-1995 of the Third Chamber of the Supreme Court of Justice, in which it argues that the behavioral manifestation of shared drug consumption is coupled with the free and mutual exchange and supply of doses. of drugs of a different nature, where the impact on legal rights is not even remote.
[13] Other cases at the national level where the defense of shared consumption was heard are found in:
• In this case the argument was heard, although it was rejected, it suggests that this thesis of shared consumption could be accepted: "The defense tries to redirect the matter as if it had been a case of shared consumption or an altruistic donation, despite that the evidentiary elements (including those of defense) indicate that it was a pure and simple sale, where there was an exchange of thing and price. It is not true that the accused has "saved a friend" as the defense refers to it. , because the witness Cristoper Abarca Mora himself stated in his deposition at trial that he did not know the accused, but rather it was the accused himself who approached him and “…told me that he was a little busy, that he could help me, I told him that It was a thousand colones, he told me to give him the thousand colones, I gave him a bill, I went into Chovis to smoke a cigar...", making it clear that the appellant gives the test a very different content than what it really has..." (Carthage Criminal Sentence Appeal Court. Vote No. 181 – 2018 of April 20, two thousand and eighteen.
• Although in the case the position of self-consumption is rejected, it gives explanations why the thesis did not prosper, so that contrary sensu it can be interpreted that it is viable, possible and feasible to allege this circumstance to make some behaviors in relation to self-consumption atypical. : “C.4. Regarding the shared consumption of psychotropic substances as a defensive thesis:...The challenger loses sight of the fact that the court did not consider it proven that in the specific case there was shared consumption of drugs between addicted people, much less that said supply was free , or that the possession of the substance is due to an agreement of wills between addicted people, so that the defendant would be the person who obtained the cocaine due to the difficulties in acquiring it...". In any case, it is highlighted that this ruling highlights the elements that the court took into account to analyze the argument of shared consumption, including the role of each of the participants: “despite the fact that they tried to maintain a version similar to that of the defendant, they also entered into contradictions about the amount of substances that the defendant would acquire, how much substance would correspond to each of the participants in the supposed event of recreational consumption, or even whether or not they had already paid the money to the defendant. for the activity. These aspects, it is insisted, were those considered to reject the thesis of the existence of shared consumption of substances between addicted people…” (Court of Appeal for Criminal Sentence II Judicial Circuit of San José. Vote 752-2017 of the fourteen hours and forty-five minutes of June twentieth, two thousand and seventeen)
• In this case there is talk of plural self-consumption, but the thesis was also rejected. (Court of Appeal for Criminal Sentence II Judicial Circuit of San José. Vote No.167-2014 of nine hours and thirty minutes on January 30, two thousand and fourteen.)