General situation
Ayahuasca (containing DMT) is illegal in the Netherlands under the Opium Act because DMT is a controlled substance, regulated under Schedule I of this law. While ayahuasca is not explicitly listed in Schedule I, Dutch courts regularly find that ayahuasca is illegal because it contains the Schedule I substance DMT.
Despite the illegality of ayahuasca in the Netherlands, there are many groups using the brew throughout the country, including Santo Daime churches, a small new group from the União do Vegetal (UDV), and a myriad of therapeutic groups, shamanic and neo-shamanic practitioners. In fact, the Netherlands is one of the main ayahuasca hubs in Europe, perhaps due to its liberal drug laws.
The Santo Daime church of Amsterdam is the largest in Europe. Its services often involve not only use of ayahuasca as a sacrament but also the use of cannabis, which the church refers to as “Santa Maria.” While the Amsterdam Santo Daime church has won a few court cases protecting its sacramental use of ayahuasca (in 2001 and 2009), which it calls “Daime”—on the grounds that religious freedom rights enshrined in Article 9 of the ECHR give them an exemption from prosecution—and its original victories were celebrated internationally, church members are increasingly suffering prosecution as a result of customs controls.
Santo Daime church members in the Netherlands have periodically been stopped at customs, had their Daime seized, and received criminal charges. Until 2014, church members won the return of their seized Daime after having the criminal charges dismissed on the grounds of religious freedom after filing their complaints with the court, though they have had to file complaints with the court every time a shipment was confiscated. However, recent reports from our sources close to Santo Daime in the Netherlands indicate that the situation is increasingly precarious. Daime is now being seized regularly in the Schiphol airport and the Dutch Public Prosecution Service (OM) has begun employing a proactive approach towards the import of ayahuasca. In a recent case, the Amsterdam church applied for a civil injunction to prohibit the prosecution and customs to confiscate Daime for the churches. However, on Feb 7, 2017, the civil judge ruled that a prohibition would limit the free policy of the prosecution too much. The church didn’t appeal, considering that it was preferable to await the decision in a criminal case. In an injunction, the judge tests marginally, in a criminal case in full.
Anyone bringing ayahuasca containing DMT into the Netherlands should be aware that they may be violating the Opium Act, as well as international drug control conventions. Their ayahuasca will likely be seized, they will likely not be successful in getting it returned, and they may suffer incarceration. Paradoxically, limiting religious freedom by prohibiting churches from using ayahuasca as a sacrament is at odds with the historic precedent of Dutch courts. In major cases Fijneman (2001) and Valousek (2009), discussed below, the ritualized consumption of ayahuasca did not pose a significant enough danger to public health and safety to warrant restriction of religious freedoms.
International law
The Convention on Psychotropic Substances (1971) subjects several psychoactive compounds contained in plant species to international control. DMT (N,N-dimetyltryptamine, a tryptamine alkaloid contained in Psychotria viridis and other plants generally used in the preparation of ayahuasca) is a Schedule I controlled substance in the Convention. However, according to the International Narcotic Control Board (INCB) Report for 2010 (par. 284) ‘no plants are currently controlled under that Convention […]. Preparations (e.g. decoctions for oral use) made from plants containing those active ingredients are also not under international control’.
There is no general consensus among judges and law enforcement officials on whether ayahuasca is illegal because it contains DMT, or not. It is up to national governments to make the final decision in their own jurisdictions on whether to impose controls on these plants and preparations, including ayahuasca.
National drug legislation
Ayahuasca contains DMT, which is listed in Schedule I, subsection C of the Opium Act, the section of Dutch law which covers nearly all psychotropic drugs. Under article 2 of the Opium Act, DMT is illegal to possess, import, export, administer, and prepare. While ayahuasca is not specifically listed in the Opium Act (unlike other ethnobotanicals such as coca leaves) it is treated like a controlled substance because it contains a controlled substance, like a drink containing opium.
It is important to note that like DMT, psilocybin is listed in Schedule I, Subsection C of the Opium Act. But because the truffle form of psilocybin mushrooms is not specifically outlawed, it is available for purchase in Dutch “smartshops.” However promising this might seem for ayahuasca, recent reports from our sources in the Netherlands suggest that truffles, too, are under threat in the courts.
Interpretation of the Opium Act in Dutch courts increasingly weighs against ayahuasca users. Though the import and use of ayahuasca for religious purposes has been successfully defended under Article 9 of the ECHR in the past, the strength of the religious freedom defense has recently been challenged at the ECHR and in domestic courts in the cases discussed below.
Cases
There have been many lawsuits brought both against ayahuasca church members by prosecutors and against the government by ayahuasca church members in the Netherlands
Although three cases brought against the Santo Daime church in Amsterdam have resulted in acquittals, a recent case brought against the government by the Santo Daime church Céu da Santa Maria—proactively seeking an order to prohibit seizure of their Daime—resulted a decision against the church on February 7, 2017. Moreover, as discussed above, a member of a Santo Daime church lost a case that went all the way to the European Court of Human Rights in 2014. Recent reports from sources in the Netherlands suggest that the Dutch prosecutors’ office, in response to increasing numbers of people using ayahuasca as a sacrament and new ayahuasca churches forming, is taking a proactive approach towards the seizure of ayahuasca and is willing to start a criminal procedure with nation-wide impact. This in turn, might result in another case before the European Court of Human Rights.
Fijneman (2001)
In 2001, a Santo Daime member was arrested in a church during a ceremony with 17.5 liters of ayahuasca containing 3-4 grams of DMT. The court found that ayahuasca posed no risk to public health and the religious freedom to drink ayahuasca was protected under Article 9, ECHR. Charges against the church member were dismissed.
Valousek (2009)
In 2009, a Santo Daime member was stopped in Amsterdam Schiphol Airport with 5 bags of ayahuasca in his luggage intended for church services. The court held that religious freedom protected under Article 9 of the ECHR outweighed the prohibition of DMT under the Opium Act. Charges against the church member were dismissed.
Franklin-Beentjes (2014)
In 2014, a case was decided by the European Court of Human Rights with serious ramifications for ayahuasca use in the Netherlands and abroad. The case started in 1999, when authorities seized 120 liters of ayahuasca from the wife of a Santo Daime church leader at her home in the Dutch countryside. Over the next fifteen years, she repeatedly sued the state to get the 120 liters of ayahuasca back and her case made it all the way to the European Court of Human Rights. In 2014, the European Court published its decision not to admit this case, and held that the Dutch ban on ayahuasca was not in violation of her religious freedom as enshrined in Article 9 of the European Convention on Human Rights because it was “necessary in a democratic society for the protection of public health.”
The High Court of the Netherlands ruling on the appeal, denying the return of the ayahuasca
Ceu da Santa Maria (2017)
In January 2017, members of the Amsterdam-based Daime church Céu da Santa Maria filed a preemptive lawsuit seeking a court order preventing authorities from seizing their Daime after suffering from repeated seizures of their Daime by Dutch customs. The court ruled against them on February 7, holding that the ban on ayahuasca and seizure of Daime not unreasonable. The court argued that, in this case, it is not up to a civil court to preemptively exclude the presumption of guilt and limit the prerogatives of the Public Ministry to seize ayahuasca, as enshrined in national criminal law. The church didn’t appeal, considering that it was preferable to await the decision in a criminal case. In an injunction, the judge tests marginally, in a criminal case in full.
Updated: May 2017
Relevant documents
- Fax INCB 2001 Netherlands
- INCB letter ICEERS
- Hoasca 1971 Convention Legal Brief
- INCB Annual Report 2010
- INCB Annual Report 2012
- UN Declaration on the Rights of Indigenous Peoples
- TNI/ICEERS Ayahuasca Policy Report
- ICEERS Technical Report on Ayahuasca
- Plantaforma Ayahuasca Report Spain (Spanish)
- Declaration of Principles of the Religious Groups who consume the Tea Hoasca
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