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- Dutch Freedom of Religion on Pause for Santo Daime - March 15, 2018
- Religious Use of Ayahuasca in the Netherlands Under Threat - February 6, 2018
Judgment of the Amsterdam Court of Appeal in the criminal case public prosecutor/ members of the Santo Daime church Amsterdam.
It is with great sadness that we have received the judgment of the Amsterdam Court of Appeal. After almost 20 years of legal battles against criminal courts that, without exception, were won; this time, we met a court that judged differently. The main decision from this court is that the import, possession, and use of ayahuasca leads to an unacceptable danger to public health. This means that, from 28-2-2018, Santo Daime works in the Netherlands are illegal.
More about the court case of January 31, 2018: here
The Court used several arguments to come to a final judgment:
First of all, they used the argument that “ayahuasca contains DMT, and DMT is prohibited in Article 2 under A of the Opium Act List 1; Violation of this prohibition is punishable in Article 10 of the Opium Act.”
So, because DMT is prohibited, ayahuasca is prohibited. They didn’t make any differentiation between DMT and ayahuasca.
Next, they considered that the public health risk should be judged in abstracto (in the setting of Dutch society in general) and not in concreto (in the setting of the church) and that the public health risk is a given with the placement of DMT on list I of the Opium Act.
Concluding, they considered that the church must prove that it has taken enough precautions to ban the risk in abstracto, and that the church hasn’t proven that.
This argument, of course, is in total contradiction to the jurisprudence of the European Court of Human Rights
Now: some good news
There are many points that leave room for appeal in this judgment. The Court completely ignores the fact that ayahuasca is not the same as DMT, and that, until now, ayahuasca is not “listed” itself. The confiscated ayahuasca contained just 0.02 % of DMT.
Another point is that, according to the jurisprudence of the European Court, the risk for public health has to be judged in concreto. Although this is grist for juridical specialists, this is a very significant point, and a point where the Dutch Supreme Court in 2007 also made a crucial mistake.
The churches have appealed to the Dutch Supreme Court in The Hague. The question is if the judges of the Supreme Court will nullify the decision of the Amsterdam Court of Appeal. If they will not, the church can go to the European Court of Human Rights in Strasbourg for the final check.
Other arguments that the Netherlands Court brought up:
The Trimbos Institute, a well respected Dutch research center for mental health and addiction, mentioned on their website that there are a lot of risks related to the use of ayahuasca.
The intakes before ceremonies are not “waterproof,” and they are not done by medical personnel.
Too many people are involved with the import and storage of the Daime, so it is not controllable and depends fully on the reliability of the involved persons.
In recent years, there has been a sharp increase in interest in the use of ayahuasca, especially outside of religious settings. This means it is not a minor group anymore.
Altogether, this led the Amsterdam Court of Appeal to the conclusion that the import, possession, and use of ayahuasca is an unacceptable danger to public health.
The council destroys the judgment of which appeal and does right again:
Nullifies the judgment of the court of first instance (the court in Haarlem).
Declares that the accused has committed the fact.
Declares the fact and the accused persons punishable.
Determines that no penalty or measure is imposed in respect of the proven facts.
Published verdict (in Dutch):
What does this all mean…?
First of all, almost 20 years ago, the Santo Daime church got legal permission to use the Santo Daime tea in their rituals. The Santo Daime churches in Holland have been legal ever since the verdict of the Amsterdam Court in 2001. Therapist-led groups and other ayahuasca initiatives were in a grey area. They assumed or pretended to be legal. Now, with this “game changing” judgment, everybody is on the same page; exactly what the prosecutor’s office wanted.
Santo Daime churches all over Europe feel beheaded of their Amsterdam mother church, with exception of Spain and Italy, where the churches can practice their religion in relative freedom.
Does this mean that the Prosecutors Office (OM) will actively chase ayahuasca providers or step into churches? All is possible; but, in my opinion, not likely. I think they have, or at least should have, other priorities. But you never know. At least for the customs, it is clear now that all ayahuasca will be confiscated, “religious tea” or not. Import is, in all cases, illegal and punishable, and people who carry the tea will be penalized.
Supreme Court Appeal
Of course, the churches appealed to the Dutch Supreme Court. This cassation can take at least one year, but, more likely, will be decided two years from now. Luckily, this judgment of the Amsterdam Court of Appeal has some serious flaws, so we are certainly not out of hope.
At the same time, an interdisciplinary team of experts has formed to collect all the relevant juridical, medical, scientific, and social data against this court’s decision, and will publish this in a solid scientific paper.
The case can be won or lost in the Supreme Court. In either case, it is likely that there will be another court case at the European Court of Human Rights (ECHR).
So, we still have some options to get our spiritual & celestial rights.
In the meantime, Be Wise, Drink Wise, and Be Safe
Vida, Saúde, Felicidade
To read the verdict in English, click here