Freedom of Religion versus the Psychotropic Substance Treaty

Court Case in Holland against the use of ayahuasca by the Dutch Santo Daime Church.

By Arno Adelaars ©

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Amsterdam - On Friday 23 March 2001, two churchleaders of the Dutch Santo Daime church appeared in court here in Amsterdam on charges of possessing and transporting a Schedule 1 drug. The two church leaders, Geraldine Fijneman, leader of the Amsterdam branch of the Brasilian based Santo Daime church, and Hans Bogers, head of the The Hague branch were arrested on 6 October 1999 in a chapel in the city of Amsterdam during a church service. Mrs Fijneman was arrested in the church while a service was on its way. Mr Bogers, who tried to make a complaint against the intrusion of the police during a church service, went to the police station and was arrested in the police station before he could file a complaint.

The ayahuasca seized by the police was tested in a forensic lab. 0,02 % of the tested liquid contained DMT. DMT is considered a Schedule 1 drug according to the Dutch Opium Law, a drug in the same class as heroin, cocaine and other so called 'hard drugs'.

A line of experts gave scientific explanations on different aspects of the case. Toxicologist professor De Wolff wrote a report for the examining magistrate in which he stated there was no public health risk in regard to the use of DMT. He cited the research on UDV in Manaus done by Callaway, McKenna and Grob in 1996. He also made a comparison with the ritual use of psilocybin containing mushrooms by the Mazatec Indians and said as a side note that the famous mushroom curandera Maria Sabina died at the age of 93, implying the lack of public health risks.

De Wolff did not see an abuse potential in the use of ayahuasca. He said the church had services about two times a month, and that it might be possible that some experienced ayahuasca users felt cravings for their next service, but it would only be a mild kind of craving comparable with the craving for liquorice or pickled herring (This is Holland, remember!)

The toxicologist said there were no scientific grounds for DMT to be considered a hard drug according to the Dutch Opium Law. The substance is scheduled because it is mentioned in the Psychotropic Substance Treaty. It means there were no publich health consideration involved in the scheduling, only international political reasons.

Asked by the defense laywer whether he thought it remarkable that UDV members were more healthy than a control group, the toxicologist answered he was not surprised, since drinking two glasses of wine or beer a day was much healthier than total abstinence of alcohol.

The public prosecutor Mr. P.C. Velleman asked what the toxicologist thought of the use of ayahuasca by children. De Wolff commented that he thought childhood use of ayahuasca was unwise. He expressed concerns that children could become very frightened and they engage in extremely risky behaviour. He mentioned as an example a child that jumped of a bridge after eating psylocybin containing mushrooms.

The defense laywer, the eminent Mr. Adele G. van der Plas, had asked a wide range of experts to give their opinion on the public health aspects of drinking ayahuasca, on the reasons to use psychedelics in a spiritual context, and on the sincerity of the Santo Daime church as a bona fide religion.

Neurophysiologist Dr. Eric Fromberg, speaking with a 30 year experience in Dutch drug help institutions, talked about the very controlled setting of the Santo Daime rituals. He himself had participated in a ritual in which a man fell on the ground and couldn't stop moving his legs for a while. The way in which the church members helped this man was very good. "I couldn't have done it better myself ", he said. He talked to the man after the service, who stated how helpful the service had been to his personal growth.

Apart from the safe setting, Fromberg (an atheist himself) was in favour of the framework the Santo Daime church provided in which visionary experiences could be integrated. He had also noticed that people with certain psychiatric problems received special attention.

Dr. Fromberg, a known supporter of legalisation was vehemetly opposed to the scheduling of DMT.

Professor Charles D. Kaplan, working at the medical faculty of the Univerity of Maastricht stated in his testimony that being part of a spiritual and/or religious community is beneficial for public mental health, although this statement might be hard to accept in our secular society. He even called the ritual use of ayahuasca in the interest of public mental health. He was also opposed to the scheduling of DMT and said there was no scientific ground for it.

Theologist and religious expert dr. R. Kranenborg from the Free University in Amsterdam stated that ayahuasca is the sacrament for the Daime members and that ayahuasca is essential for the Santo Daime religion. "Without ayahuasca the Santo Daime would not be the Santo Daime."

Public prosecutor Velleman accused Geraldine Fijneman of transporting and possessing DMT. He accused Hans Bogers of being present in the chapel and knowing what was going on.

He said the preparation of ayahauasca was meant to take the active ingredients out of the plants. In that respect it is a preparation as described in the Psychotropic Substance Treaty. He said all the experts in the court room might agree about DMT being placed unjustly in the Opium Law. It would mean Dutch lawmakers should change the law but that the substance was right now still in the law, that Holland had signed the Psychotropic Substance Treaty and had to obey the Treaty.

Mr. Velleman listed the what he called 'serious side effects' of drinking ayahuasca, like amongst others a rise in body temperature, a fast heartbeat, and walking unsteadily. He said the long list of contra-indications that has to be taken into account showed the public health risks of the use of ayahuasca.

He tried to make clear that the Dutch Santo Daime church gave ayahuasca to children.

He demanded a sentence of one month suspended imprisonment with a two year probationary period for the two suspects.

Judge Marcus reacted to the public prosecutor's argumentation. The judge said the contra indications were due to the MAO inhibiting effect of the Banisteriopsis caapi liana, and not of the DMT containing Psychotria virides leafs. (!) The active ingredients of the liana are not scheduled.

The judge asked whether the public prosecutor had looked well into the United Nations Bureau report from Vienna, Austria that the public prosecutor himself had given to the court. The UN report from Vienna stated that DMT containing plants and infusions of these plants were not controlled.

It took the public prosecutor more than a minute to find his speech. He finally said he didn't agree with that interpretation.

In her 90 minutes plea defense laywer Adéle van der Plas answered the question whether the Santo Daime church was a serious religious movement. She described the history of the church, starting around 1910 in the Brasilian part of the Amazon by Raimundo Irineu Serra, who combined centuries old Indian traditions with catholicism. After his death in 1974 his movement split up in several Santo Daime churches. One of them, headed by Sebastiao Mota de Melo founded the Cefluris church (Centro Ecléctico da Fluente Luz Universal Raimundo Irineu Serra). The spiritual center of this church is Céu do Mapia, a community deep in the Amazonian forest. The current leader of the church is Sebastiao's son Alfredo Mota de Melo.

According to a research by Brasilian anthropologist Edward J. Baptista das Neves MacRae, who made an extensive description of the Santo Daime rituals, it is very clear the Santo Daime church is a bona fide and serious religious movement.

Both theologist dr. Kranenborg of the Free University in Amsterdam and Mr. Dr. Labuschagne laywer and philosoper of law at the University of Leiden fully agreed with this conclusion. Labuschagne, whose PhD thesis was titled 'Freedom of religion and not-established religions', labeled the Santo Daime churches as a serious and bona fide religion.

Adéle van der Plas concluded that the members of the Santo Daime church should be protected by the European Treaty of Human Rights (article 9) and by the International Treaty of Civil and Political Rights signed in New York (article 18). She also listed some cases of the European Court of Human Rights in which European Nation states were explicitly warned to be very reserved in freedom of religion-cases. In one case of a Greek Jehova witness against Greece, a laywer noted that Santo Daime members should in the near future be treated with great reservedness by European nation states. <P> It was quite clear the defense laywer warned the court not to make a decision that will be overruled by the European Court of Human Rights.

Defining the Santo Daime church as a legitimate and bona fide religion, Adéle van der Plas wondered whether the use of ayahuasca was legitimate in the church services. She approached this by citing a resolution of the CCPR of the UN accompanying article 18 of the International of Civil and Political Rights: "The freedom to manifest religion or belief in worship ( ) encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief as well as various practices integral to such acts ( ) (it) may include not only ceremonial acts but also such customs as the observants of dietary regulations (( etc. etc.)."

And also:

"The Committee observes that the concept of morals derives from many social philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving from a single tradition."

This meant, according to the defense laywer, that a judgement solely based on the dominant western religious tradition should be avoided. As historian Dr. Snelder of the Free University in Amsterdam wrote in a report for the defense, the use of psychoactive substances like ayahuasca, peyote or psilocybin containing mushrooms is as old as our knowledge of human history. Theologist Dr. Kranenborg explained how important the use of psychoactive substances was in different religions, religions less well known to us than Judaism, Christianity and Islam.

According to Kranenborg the use of ayahuasca as a holy sacrament is absolutely essential for the Santo Daime religion.

Neurophysiologist Fromberg and psychologist Dr. Hans C. Ossebaard gave in their reports further evidence of the neccesity of the use of ayahuasca in the Santo Daime services. Ossebaard wrote that depending on set and setting drugs could trigger a mystical experience to the 'Unio Mystica', the spontaneous and conventional mystical experience without drugs as we know it from medieval Christian literature.

Adele van der Plas than continued with the limitations of the right to freedom of religion. Citing again some recent cases of individuals against European nation states by the European Court of Human Rights, she came to the conclusion that the nation state had to prove how severe and dangerous a certain situation was. Was DMT such a threat to public health that it gave the state of Holland the right to violate one of the constitutional rights of its citizens?

All experts came to the conclusion that DMT was not a threat to public health. Some experts are convinced of the medicinal and value of ayahuasca. Professor Kaplan concluded for example : "( )that the use of 'Daime' in a ritual context motivated by a search for spiritual and (mental) health provides an acceptable and minimal risk to public health and, in fact, is likely to provide an unseen benefit for our health system."

In Brasil the use of ayahuasca was legalised in 1992 after an intensive research about the public health aspects. In 1997 the Brasilian government made the recommendation not to serve ayahuasca to people younger than 18 years.

The defense laywer stressed ayahuasca was never served to minors in the Dutch Santo Daime church.

DMT is no threat to public health and, according to Van der Plas, therefore the action of the Dutch authorities against the Santo Daime church was a violation of the constitutional right to freedom of religion.

DMT is a controlled substance in Holland because it is mentioned in the Psychtropic Substance Treaty . But the Psychotropic Substance Treaty is subsidiary to the constitutional right to freedom of religion, as is stated in article 22 of the Treaty.

Adele van der Plas concluded that the way the Dutch authorities handled this case is incomprehensible and unjust. She asked the court to drop the charges. She told the court not to be hesitant in taking a bold decision because this court won't be the first to legalise the use of ayahuasca as a religious sacrament. Not only Brasil legalised ayahuasca, Peru did so as well and also legalised the medicinal use of the brew.

A court in Spain's capital Madrid dismissed on 20 october 2000 a charge against the import of ayahuasca on grounds of the insignificant amount of controlled substances found in the brew and that it would be privately used by a select group of people.

The state of Oregon in the United States granted the Santo Daime church the use of its sacrament. The Oregon Board of Pharmacy wrote on 8 november 2000:"( ) it seems apparent to the board that the sacramental use of the Santo Daime tea in the context of a bona fide religious ceremony by practioners of the Santo Daime religion as described does not constitute abuse of a controlled substance."

Mr. Van der Plas finally also demanded acquittal for her clients.

The court will give a verdict on 6 april 2001.

Arno Adelaars, Amsterdam - The Netherlands.
Email: nota@xs4all.nl

Update - 3 April 2001

The court ruled today that Hans Bogers, head of the The Hague branch of the Santo Daime church was acquited on technical legal grounds. He was accused of posession of a Schedule I drug, but the court ruled he was a guest of the Amsterdam branch of the church during the raid of the Amsterdam police on 6 October 1999.

The verdict of the court in the case against Geraldine Fijneman, head of the Amsterdam Branch of the Santo Daime Church is unfortunately suspended.

The court needs more time in her case. She confirmed to the police she was the one in posession of ayahuasca, she was the person who transported the DMT-containing liquis, and she was the one in charge of the church service in which the ayahuasca was going to be served. In her case the principal question of Freedom of Religion versus the Psychotropic Substance Treaty will be answered.

Arno Adelaars

 

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