International Juridical Recognition of Ayahuasca, Sacrament of the Santo Daime Churches

Meeting on  23 September 2005 in Amsterdam

Present: Alex Polari, Liesbeth van Dorsten, Irene Hadjidakis, Adèle van der Plas and translator Norberto Jurasec.

Subject of discussion: the problems the Santo Daime Churches are faced with in the different European countries in respect of the use of their holy sacrament ayahuasca. What are the possibilities to realize the international legalization of the use of the sacrament? What would be the best strategy to reach this purpose?

Preceding remarks: It will be useful to draw up a precise inventory of the legal situation in the different European countries in respect to the sacramental use of ayahuasca and in other countries like Brazil, Canada and the United States. Then per country and legal situation can be decided what will be the best strategy to go on. I would strongly recommend to appoint in every country a coordinating lawyer and to stimulate the cooperation and international exchange of information between the juridical advisers. Till now there was a lack of cooperation between the different European lawyers of the Churches. The cooperation between the Dutch lawyer and the lawyers in the United States for instance turned out to be very fruitful in the past. Of course it could also be very useful, if the churches could find interested students to support the work of the lawyers in the different procedures, like for example the students from the Law Clinic of the Vrije Universiteit Amsterdam.

International Legal framework: the UN Convention on Psychotropic Substances

Three international conventions are of importance for the legal debate on the sacramental use of ayahuasca. The first is the United Nations Convention on Psychtropic Substances of 21 February 1971. The other two are the European Convention for the protection of human rights and fundamental freedoms (November 4, 1950) and the United Nations International Covenant on Civil and Political Rights (of December 19, 1966).

Ayahuasca contains the psycho-active substance DMT which in itself is controlled under the 1971 Convention on Psychotropic Substances. It is the reason that many of the member states of the treaty criminalize the use, possession, transport, import and export of ayahuasca despite the fact that the plants from which Ayahuasca is brewed, are in itself not controlled by this UN treaty. In the Netherlands for example The Supreme Court decided in 2002 that plants containing some psychotropic substances are not controlled by the Drug Law. Any processing however of these plants containing psychotropic substances like DMT, like drying them or preparing tea of them, will turn them into a substance which is forbidden by law. France for instance put ayahuasca itself on their national list of forbidden drugs containing psychoactive substances. The United Kingdom did recently the same with the not in itself by the international UN Convention controlled psychoactive mushroom containing psilocine and psilocybine, which in itself are psychotropic substances controlled by the UN treaty.

This policy of the member states is as far as I know not really appreciated by the United Nations International Narcotics Control Board, the highest UN organ that controls worldwide national drugs policies. In the criminal procedure against the Santo Daime Churches in the Netherlands the district attorney presented a letter from this INCB. The letter answered some questions from the Dutch Ministry of Public Health about the use of 'ayahuasca'. The letter says:

The above-mentioned issue was consulted by the INCB Secretariat with the Scientific Section and the Legal Advisory Section of the United National International Drug Control Programme (UNDCP). It is our understanding that 'ayahuasca' is the common name for a liquid preparation (decoction) for oral use prepared from plants indigenous to the Amazon basin of South  America, essentially the stern bank of different species of a jungle vine (Banisteriopsis sp.) and the tryptamine-rich plant Psychotria viridis. According to the scientific literature, ayahuasca commonly contains a number of psychoactive alkaloids, including DMT which is a substance included in Schedule I of the 1971 Convention on Psychotropic Substances.

            No plants (natural materials) containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.

In fact, the letter makes clear that preparations of plants, containing by nature some psychotropic substances, like ayahuasca, are in the opinion of the INCB not controlled by the US Convention on Psychotropic Substances. Till now the INCB did not change this point of view.

The problem however is that the member states of the treaty are free to take a tougher line in their national drugs policies than the treaty asks for, if in their opinion, such measures are desirable of necessary for the protection of the public health and welfare (article 23 of The UN Convention of 1971). The question presents itself if France had enough reason, legally spoken, to prohibit the use of sacramental use of ayahuasca on the base of  this condition of ‘protection of public health and welfare’. This has to be discussed with the French lawyers and advisers.

The importation and exportation of ayahuasca

In November 2005 there will be a new meeting of the Church with the Brazilian government to prepare the official legalization of the export of ayahuasca to other countries. In my opinion there will not be any international treaty prohibiting such a formal legalization. The same applies for Canada that seems to prepare similar legislation for the import, possession and use of ayahuasca according to Alex Polari. I recommend the Church to ask the Brazilian government and maybe also the Canadian government to request for an official approval for their policy in respect of ayahuasca from the UN International Control Board. Because of the Boards view on the problem, the INCB will probably react positively on such a request. An official international INCB confirmation of the legal export of ayahuasca from Brazil will certainly facilitate the procedures in different European countries as the Netherlands and Spain to legalize the importation of the sacrament. As known, in these countries the sacramental use of ayahuasca is legalized, but the import of ayahuasca is still criminalized.

The European Convention for the protection of human rights and fundamental freedoms (1950) and the United Nations International Covenant on Civil and Political Rights (1966).

Art. 9 of the European Convention reads as follows:

1.         Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief in freedom, either alone or in community with others and in public or private, to manifest his religion of belief in worship, teaching practice and observance.

            2.         Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety for the protection of public order, health or morals or for the protection of the rights and freedoms of others.

Article 9 of the European Convention is basically similar to Art 18 of the United Nations Treaty on Civil and Political rights.

In the Netherlands the Santo Daime churches relied on the protection of the freedom of religion:  art. 9 of the European Convention and art. 18 of the United Nations Treaty on Civil and Political rights. In its decision of May 21, 2001, the district Court of Amsterdam recognized the fundamental rights of the Dutch churches, protected by Art. 9 of the European Convention, to celebrate their religious ceremonies with the holy sacrament ayahuasca. The prosecutor’s office did not appeal against this decision of the Amsterdam District Court. So, the churches succeeded, in this way, to legalize their holy sacrament ayahuasca in the Netherlands. In the United States the Uniao do Vegetal choose the same path to get their use of ayahuasca in their religious ceremonies legalized. This case is not finally decided yet.

The protection of the freedom of religion is in my opinion the strongest argument for the churches to legalize their sacramental use of ayahuasca worldwide. First of all, the churches can prove that they belong to a serious religious organization. They have to officially register themselves as churches in the different countries. They form part of the officially recognized Brazilian Santo Daime church CEFLURIS, which, from the 90's, has had several international branches in European countries, Japan and the US. Furthermore, a large number of experts, from anthropologists to pharmacologists and psychiatrists, can inform the courts in eventual legal procedures as to the historical background of the churches, their ritual use of ayahuasca and the interaction between the use of psycho-active substances in general and in religious conscience. A lot of knowledge in this field is gathered yet.

Once the religious character of the organization has been admitted, the protection under Art. 9 extends to all the acts or ceremonies with which belief is expressed. The government is not allowed to intervene in the means of expressing one's belief. The European Court of Human Rights defined this rather strictly in 1996 (in the judgment Manoussakis versus Greece, § 47).

The government will then only be able to intervene in someone's freedom to manifest one's religion if the limitations are prescribed by law and if they are necessary in a democratic society in the interest of public safety or the protection of public order, health or morals or the rights and freedom of others.

In the Dutch procedure, the prosecutor could prove that the use of ayahuasca was prohibited by Dutch drug law, but he was not able to prove that the sacramental use of ayahuasca by the Santo Daime churches implied a danger to public health, order or morals.

The experts introduced in the Dutch were unanimous in their conclusions that the ritual use of ayahuasca during the worship of the Santo Daime churches didn't cause any danger to public health. The Amsterdam District Court adopted the opinion of those experts in their final decision on the case. The drinking of ayahuasca within the religious and ritual setting of the Santo Daime churches did not involve any considerable risk for public health, was the opinion of that court. Although ayahuasca consumption might involve certain health risks in individual cases, the information provided by the church to participants of the rituals and the regulated conditions surrounding the consumption within the religious community formed, in the opinion of the court, a sufficient safeguard against unacceptable health risks in those cases that the use of the tea had to be advised against.

International constitutional rights, like freedom of belief, have to be respected by national courts, legislation and jurisprudence. The International Convention on Psychotropic Substances itself, even admits that it cannot intervene with national or international constitutional rights (Art. 22a sub 1 of this Convention). If the national courts don’t respects someone’s fundamental rights as described by international treaties like the European Convention on human rights and the International Covenant on Civil and Political Rights there exists a right of appeal to The European Court of Human Rights in Strasbourg or the European Rights Committee in Geneva. Such an appeal however is only allowed if all national legal remedies in a member state have been exhausted. It is my advice to prepare an eventual appeal against a negative judgment in one of the European countries or member states of the United Nations very carefully and very profoundly, using all the expertise possible. If such an appeal is not successful it will have an immense negative effect on all the national proceedings which realized legalization of sacramental use of ayahuasca before.

In this light it could be useful to explore the possibilities to discuss beforehand eventual proceedings before the European Rights Committee in Geneva with the Secretariat of Committee in Geneva.

Adele van der Plas,

Amsterdam, 2 October 2005