ICEERS | 30 October 2023
The legal status of ayahuasca in various national jurisdictions experiences changes and nuances over time. Ayahuasca is considered a sacred medicine and is legal in its countries of origin, such as Peru, Colombia, and Brazil. However, people who work with this plant medicine can face criminal charges in many other parts of the world. This highlights the challenges of ayahuasca’s globalization, affecting both countries with long-standing plant medicine traditions and those where it has been introduced more recently.
ICEERS has been closely monitoring the legal status of ayahuasca over the years. Our organization has initiated a series of legal reports that center on input from experts in different countries to provide an overview of the ayahuasca legal situation. These reports have multiple objectives. Firstly, we aim to provide legal clarity to the ayahuasca community in order to avoid incidents with the authorities and foster legal risk reduction. Likewise, these reports also inform both the authorities and the media about the legal status of this medicine to avoid disproportionate charges and sensationalist coverage. Finally, these reports are intended to be useful tools for legal incidents that go to trial to contribute to a more supportive defense and to offer an analysis of the various court positions in different countries.
ICEERS has just released a full-length report on the legal status of ayahuasca in the Netherlands. The report was written by Adèle van der Plas, a lawyer who has been advocating for the rights of religious groups to work with ayahuasca in the Netherlands since 1994. It explores the legality of ayahuasca in the Netherlands by focusing on ayahuasca in the communities of the Santo Daime (ICEFLU) church. The author examines the fundamental right to religious freedom as outlined in the European Convention on Human Rights. The report outlines the criminal prosecutions the Santo Daime churches face and the classification of DMT, a component of ayahuasca, as a banned substance in the Netherlands.
The fact that the Netherlands has moved towards more restrictive interpretations of the law makes it necessary to understand how this situation has come about. We explore the consequences that this may have on practices that have been established for decades in this country — which have not been found to be problematic for public health or public order. We offer this information to explore how these trends can be reversed or serve as a lesson for other countries and contexts.
General Overview of Ayahuasca in the Netherlands
Ayahuasca was first introduced in the Netherlands in the early 1990s, primarily via the Brazilian Santo Daime church. Ayahuasca ceremonies have been held in the Netherlands since 1994, and local churches were established in Amsterdam and The Hague in 1995. Ayahuasca practices in these churches blend the Indigenous framework with Christianity. Since 1999, leaders and members of Dutch Santo Daime churches have faced criminal prosecutions due to the presence of DMT in ayahuasca, which is classified as a banned substance in the Netherlands. However, the ayahuasca brew itself is not controlled by international treaties.
While the Santo Daime churches were able to claim religious freedom for their ritual use of ayahuasca, this right was denied to them in 2018. This is because the Dutch Supreme Court ruled that ayahuasca falls under the prohibition defined in the Opium Act. While the Santo Daime churches were initially exempt due to religious freedom, this exemption ended after seventeen years of legality with this decision by the Dutch Supreme Court.
Providing Context for this Court Decision
DMT is a prohibited substance listed in the Psychotropic Substances Convention. However, the convention does not control the plants that are part of ayahuasca brews that naturally contain DMT, such as Psychotria viridis and Mimosa hostilis. Preparations made from these plants, including ayahuasca, are not subject to international control. The distinction lies in the extracted DMT as a substance, which is prohibited except for medical and scientific purposes. This information was presented in criminal proceedings in the Netherlands against Santo Daime church leaders in 2001. The Dutch Supreme Court decision of 2018 has ruled that ayahuasca falls under the prohibition of the Opium Act.
The Opium Act dates back to 1919 and serves as the main drug law in the Netherlands. The act was initially established to align with international obligations and restrict drug use to medical, veterinary, and scientific purposes. In 1976, a distinction was made between “hard drugs” (heroin, cocaine, DMT, LSD) which entail stricter penalties, and “soft drugs” (cannabis, etc). The Opium Act introduced the principle of “separating the markets,” with cannabis being sold in coffeeshops in the Netherlands under specific conditions. Possession of small quantities of drugs for personal use is generally not targeted for prosecution, although possession for commercial purposes is treated as a more serious offense. The Dutch Ministry of Health has the authority to add prohibited substances to the Opium Act list.
The legal status of ayahuasca in the Netherlands was previously influenced by the “paddo” jurisprudence that focused on psychoactive mushrooms. The Dutch Supreme Court decided in 1998 and 2002 that natural organisms containing psychoactive substances, such as mushrooms and truffles, are not illegal under the Opium Act unless specifically listed. Natural products that are not listed in the Opium Act but do contain naturally occurring prohibited psychoactive substances are not prohibited under the Convention. However, the court clarified that any processing of these natural products, even minimal, would render them prohibited under the Convention, including grinding, mixing, or active drying. This basis was initially part of the legal protections of ayahuasca in the Netherlands but has since changed. This decision has been the subject of an ongoing legal debate within the country.
Religious Freedom and Human Rights
Santo Daime churches in the Netherlands have maintained that the criminalization of ayahuasca violates their right to religious freedom, as guaranteed by Article 9 of the European Convention on Human Rights (ECHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). This decision was based on the understanding that ayahuasca is a sacrament in their worship services, and does not pose significant risks to public health. The church submitted expert reports supporting this position, and several court rulings affirmed their rights to religious freedom with ayahuasca. Dutch courts initially upheld the church’s appeal.
The Dutch Supreme Court ruled in October 2019 that the prohibition of ayahuasca importation under the Opium Act takes precedence over the right to religious freedom. This ruling deviated from previous court decisions that recognized the church’s right to work with ayahuasca as a sacrament within the context of their religious practices. The Santo Daime church filed a complaint with the European Court of Human Rights, asserting that their right to religious freedom was being violated by the Netherlands’ interpretation of the Opium Act. The church argued that the necessity of the infringement should be evaluated on a case-by-case basis, considering the specific circumstances and negligible risk that ayahuasca posed to public health.
The Dutch Santo Daime churches argue that the international treaties and conventions signed by the Netherlands oblige the country to protect religious minorities who traditionally use natural medicines, including ayahuasca. They point out that there is no international obligation for the Netherlands to criminalize ayahuasca, and that the prohibition should be seen as unnecessary and disproportionate. The Santo Daime churches are considering taking their case to the United Nations Human Rights Committee to seek redress for the violation of their religious freedom.
What is Next?
In conclusion, the legal status of ayahuasca in the Netherlands has undergone significant changes over the years. Initially, the courts recognized the Santo Daime church’s right to work with ayahuasca as an essential part of their religious practice, based on expert reports attesting to its therapeutic potential and minimal health risks. However, the Dutch Supreme Court ultimately prohibited the importation of ayahuasca, citing the Opium Act as a legitimate restriction necessary to protect public health. This decision was upheld by the European Court of Human Rights.
This situation highlights the tension between religious freedom and drug control laws. The Santo Daime churches are considering further action to challenge the infringement of their right to religious freedom. The full report can be found below.
Photo by PICRYL.
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