This is part one of a series of blog posts that will be published this week by EPSD Nicaragua chapter leader Elvin Rodríguez Fabilena that will describe Nicaraguan policies on cannabis in terms of how they are written and how they are enforced. The blog posts encompass a research paper titled Cannabis Policy in Nicaragua: De Facto Decriminalization.The materials used were the Penal Code of Nicaragua (Law No. 641), the Penal Procedure Code of the Republic of Nicaragua (Law No. 406), the Law for the Prevention, Investigation and Prosecution of Organized Crime (Law No. 735), the Law of General Health (Law No. 423), the Law of Medicines and Pharmacies (Law No. 292), the Regulation of the Law No. 292 (Decree No. 6-99), and the Bachelor of Laws’ thesis entitled “Proposal of regulation of cannabis plant, as an alternative against drug trafficking and organized crime” by Jimmy Chang Antón and Elvin Rodríguez Fabilena. Such thesis contains an interview with the former Criminal Local Judge of León, Nicaragua, Mrs. Nardis Núñez, who provided an insight on how the authorities manage the cases of misdemeanors such as minor possession of narcotics, psychotropics and other controlled substances, specifically cannabis.
The Penal Code
Title XIV of the Penal Code of Nicaragua, called “Crimes related to narcotics, psychotropics and other controlled substances”, lists 12 crimes which involve cannabis. Article 348 bans the illicit financing of narcotics and psychotropics, particularly the sowing, cultivation, harvesting, storing, traffic, fabrication, manufacturing, transportation or commercialization of narcotics and psychotropics, or the seeds or plants from which they are extracted. The punishment is imprisonment of between ten to twenty-five years, and a proportional fine from five to ten times the value of the activity funded. In addition, this article states that the same penalty will be imposed upon anyone who provides funds to rent, to build or to buy mobile or immobile goods for the same purpose.
Moreover, Article 349 prohibits the production of narcotics and psychotropics. Anyone who illicitly sows, cultivates, reaps plants or seeds from which can be obtained such substances will be sentenced to prison for five to ten years, and assessed one hundred to one thousand “day fines”. A day fine is equal to one-third of the daily income of the accused. Additionally, Article 351 bans the industrialization or illegal processing of narcotics and psychotropics, specifically by anyone who illicitly extracts, processes, transforms or modifies the raw material to obtain narcotics and psychotropics. The penalty is prison for five to twenty years and from one hundred to one thousand day fines.
Next, Article 352 prohibits the illegal transportation of narcotics and psychotropics, with a prison sentence of five to fifteen years, and from three hundred to one thousand day fines. Also, this article adds that it will impose the penalty of four to eight years in prison to anyone who prepares, hides, guides, keeps or maintains the means necessary to commit this crime. When the transport is international, the penalty imposed will be from ten to twenty years of prison, and from five hundred to one thousand day fines. Article 353 bans the transfer of narcotics and psychotropics. Whoever transfers narcotics or psychotropics on their body or hidden in their will incur a penalty of prison of between two to eight years.
Article 354 prohibits the construction or facilitation of landing strips to be used in the traffic, transportation or transfer of narcotics and psychotropics with a penalty of between ten to twenty years of prison, and from three hundred to eight hundred day fines.
Article 355 bans the storing of narcotics and psychotropics with the penalty of a prison sentence of between five and fifteen years, and from one hundred to one thousand day fines.
Article 356 prohibits the promotion or encouragement of narcotics and psychotropics consumption by anyone who, through any means, advertise, incites, or induces others to consume narcotics and psychotropics. The penalty will be from five to ten years of prison and from one hundred to five hundred day fines. Article 358 bans the possession or holding of narcotics and psychotropics in quantities above five grams and below twenty grams if it is marijuana. The penalty will be imprisonment of between six months and three years and from fifty day fines. If the seized substances exceed the limit of twenty grams of marijuana, the penalty to be imposed will be from three to eight years in prison, and from one hundred to three hundred day fines.
Article 359 prohibits the traffic of narcotics and psychotropics by anyone who illicitly distributes, sells, barters, passes, or offers for sale in any other way narcotics and psychotropics, with prison of between five and fifteen years, and from three hundred to eight hundred day fines. The same penalty will be imposed on the owners, administrators, or any employee who delivers services to the establishment whether they did so knowingly or not, and in a direct or indirect way facilitates the aforementioned behavior in their respective locales. When the traffic of these substances is at the international level, a penalty will be imposed of ten to twenty years in prison and from five hundred to one thousand day fines. Article 360 punishes the provocation, proposition or conspiracy, and states that “the proposition, provocation or conspiracy expressed by any means, to commit any of the crimes stated in this chapter, will be penalized with a penalty equivalent to the third part of the penalty stated for the crime which is proposed, provoked or conspired”. Additionally, Article 561 punishes the minor possession of narcotics and psychotropics in quantities below five grams of marijuana with seventy to one hundred day fines and community service of from thirty to sixty days of two hours every day.
Law for the Prevention, Investigation, and Prosecution of Organized Crime.
According to Article 3 of Law 735 for the Prevention, Investigation, and Prosecution of Organized Crime, all of the crimes stated from Article 358 to Article 360 of the Penal Code are organized crime, with the exception of the transfer of narcotics. Article 15 states that the State, through the Minister of the Health, should organize the health system programs and opportunities for treatment and rehabilitation.
The Ministry of Health should authorize and control all the opportunities, private or public, dedicated to the management, treatment, rehabilitation and social reintegration of the addicted person. Also, according to this article, the Ministry of Health will send periodic reports on the rehab centers operating in the country to the National Council. In addition, Article 16 states that the National Penitentiary System will develop programs to prevent the consumption and trafficking of drugs within penal centers in order to facilitate to the addicted persons deprived of liberty rehabilitation treatment in coordination with the Ministry of Health and the specialized rehabilitation centers. Article 18 prohibits the utilization of plants of forbidden cultivation. Unless authorization expressed by the Ministry of Health in coordination with the Ministry of Agriculture and Forests, the sowing, cultivation, production, harvesting, exploitation, and trade of Cannabis Sativa L (marijuana in all its varieties) is prohibited. Also prohibited is the possession, holding, storing and commerce of seeds with the germinating capacity of cannabis, unless by authorization of the Ministry of Health.
Tomorrow’s post will be on de facto decriminalization of cannabis in Nicaragua and how the penal code allows for some leniency in sentencing.