FRÄNKLIN-BEENTJES AND CEFLU-LUZ DA FLORESTA v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The first applicant, Ms Alida Maria Fränklin-Beentjes, is a Netherlands national who was born in 1957 and lives in Zutphen. The second applicant, CEFLU-Luz da Floresta, is a religious association (kerkgenootschap) with legal personality under Netherlands law and its statutory seat in Alkmaar. They were represented before the Court by Mr T. van Kooten, a lawyer practising in Utrecht. The respondent Government were represented by their Agent, Mr R.A.A. Böcker of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties and apparent from documents available to the public, may be summarised as follows. 3. The first applicant is an office-holder of the second applicant. The second applicant is a religious association. 4. The applicant association claims affiliation to the Centro Eclético da Fluente Luz Universal Raimundo Irineu Serra (Eclectic Center of the Universal Flowing Light Raimundo Irineu Serra, “CEFLURIS”), an organisation based in Brazil. The aim of the applicant association as set forth in its statutes is to “research, study and practise the teachings of the Holy Daime and to incite with its works and rituals its godly spark with a view to its integration with the divine”. Its teachings are stated to be based on revelations by the Virgin Mary to the religion’s founder, Raimundo Ireneu Serra (1892-1971, referred to by his followers as Mestre (“Master”) Ireneu). CEFLURIS was founded after the death of Mestre Ireneu by Sebastião Mota de Melo (1920-1990, alias Padrinho (“Godfather”) Sebastião). 5. An essential part of the applicant association’s rites is the drinking of a particular hallucinogenic decoction, or brew, during the services. This decoction is stated to be produced in accordance with prescribed religious rituals; its ingredients are taken from plants and vines unique to the Amazon region. It is described as the “Holy Sacrament” of the applicant association and is referred to by believers as “Santo Daime” (from the Portuguese dai me, “give me”). In other circles it is more commonly referred to as ayahuasca (from the Quechua aya, spirit, and waska, liana or vine). 6. The plants that are used for the production of ayahuasca, and hence the decoction itself, contain, inter alia, N,N-Dimethyltryptamine, also described chemically as 3-[2-(dimethylamino)ethyl]indol (hereafter “DMT”). 7. DMT is a substance that can cause hallucinations if taken internally. When it is consumed in the form of ayahuasca, other possible effects include gastrointestinal reactions, such as nausea and vomiting. There is a possibility of more serious symptoms of acute toxicity, such as hypertension and increased body temperature, a rapid pulse rate and hyperventilation, sensory impairment in the limbs and difficulty walking. 8. On 2 March 1999 police officers searched the first applicant’s house. During this search the police found and confiscated, among other things, ten jerrycans each containing twelve liters of an unknown liquid. Chemical analysis performed by the Forensic Laboratory (Gerechtelijk Laboratorium) showed that the confiscated liquid contained DMT, which is one of a number of banned substances featuring on List 1 annexed to the Opium Act (Opiumwet, see below). The liquid was identified as ayahuasca. 9. On 29 August 2000 the Alkmaar Regional Court (rechtbank) found the first applicant guilty of, inter alia, the offence set out in section 2 (1)(C) of the Opium Act, namely the possession of a substance featuring on List 1 annexed to that Act. 10. On 7 September 2000 the first applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof), sitting in Leeuwarden. 11. On 22 August 2005 the Court of Appeal discontinued the criminal proceedings against the first applicant as it found that the length of the appeal proceedings had exceeded a reasonable time within the meaning of Article 6 of the Convention. 12. On 14 September 2005 the first applicant lodged a notice of complaint (klaagschrift) with the Amsterdam Court of Appeal, sitting in Leeuwarden, requesting the return of the ten jerrycans that had initially been confiscated. She stated that she was a member of the “Santo Daime church”, within which ayahuasca is the most important sacrament. She further argued that the continued confiscation of the ayahuasca violated her rights under Article 9 of the Convention as this interference with her right was not necessary in a democratic society: in her submission, scientific expert reports showed that there were virtually no health and safety risks related to the drinking of ayahuasca. 13. On 14 December 2005 the Court of Appeal held a hearing on the first applicant’s case in the course of which she restated her arguments, claiming that, in her case, the protection of freedom of religion should outweigh the interests protected by the Opium Act. According to the official record of the hearing the first applicant stated, in reply to a question from the court, that she could also practise her religion without the use of ayahuasca. The public prosecutor submitted that since the ayahuasca brew contained DMT, a substance featuring on List 1 annexed to the Opium Act, the jerrycans could not be returned to the first applicant. 14. On 25 January 2006 the Court of Appeal dismissed the first applicant’s complaint. It considered that her religion, as practised by the applicant association, was protected by Article 9 of the Convention. However, since expert reports indicated that the use of ayahuasca did constitute a threat to public health, the court found that the interference with the first applicant’s rights had not been unreasonable as it was necessary in a democratic society. The Court of Appeal further noted that it had also taken into consideration the first applicant’s statement that the use of ayahuasca was not indispensable for the practice of her religion. 15. On 24 April 2006 the first applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). She submitted that the Court of Appeal had drawn the wrong conclusions from the expert report since, after listing the effects of drinking ayahuasca, the report continued by stating that ayahuasca was used in the Santo Daime church’s services on such a small scale, and its consumption took place in such a controlled environment, that there existed virtually no risk to public health. According to the first applicant the Court of Appeal had failed to explain why it had not included that part of the report in its reasoning. The first applicant further submitted that the comment she had made at the hearing before the Court of Appeal had been taken out of context, since she had only meant to say that she would still adhere to her religious denomination even if she could not use ayahuasca. Accordingly, the confiscation of the ayahuasca did indeed interfere with her freedom to practise her religion following the church’s own rules and rituals. 16. In his advisory opinion, the Procurator General (ProcureurGeneraal) at the Supreme Court expressed the view that the appeal on points of law should be dismissed. He considered that the judiciary was not empowered to set aside a general prohibition of the possession of the substance solely because of the particular circumstances in which it was used, i.e. the specific situation being judged not to constitute a threat to public health. 17. On 9 January 2007 the Supreme Court dismissed the first applicant’s appeal on points of law. It considered that the Court of Appeal had established that ayahuasca contained DMT which was included amongst the banned substances appearing on List 1 annexed to the Opium Act. The Supreme Court further noted that it appeared from the parliamentary history (wetsgeschiedenis) of the Opium Act that the substances included on List 1 were banned, among other reasons, in order to comply with international treaty obligations concerning psychotropic substances that could cause damage to health. The fact that section 2 of the Opium Act banned the possession of substances included on List 1 therefore constituted a measure for the protection of public health. The Supreme Court concluded that the Court of Appeal had not made any errors of law in finding that the ban on the possession of ayahuasca was prescribed by law and necessary in a democratic society for the protection of public health. It further noted that this conclusion was not altered by the first applicant’s arguments that ayahuasca, in the manner in which it was used during church services, caused virtually no danger to (public) health, nor by the suggestion that the Court of Appeal had drawn the wrong conclusions from the scientific report. In relation to the first applicant’s comments made at the hearing before the Court of Appeal, the Supreme Court held that it had not been unreasonable for the Court of Appeal to consider them in relation to its finding that the interference with the first applicant’s freedom of religion was proportionate to the legitimate aim pursued. 18. On 22 February 2010 the applicants brought proceedings seeking a declaratory judgment which was to hold that, firstly, the applicant association was a religious denomination under section 2:2 of the Netherlands Civil Code (Burgerlijk Wetboek), secondly, that the members of the applicant association were excluded from section 2 of the Opium Act for the possession and the use during services of the “Santo Daime” (ayahuasca), and, thirdly, that the State was prohibited from prosecuting the members of the applicant association for the possession and use during services of the “Santo Daime” for as long as the State had not brought its policy into line with the rights protected by Article 9 of the Convention. 19. On 9 February 2011 the Regional Court of The Hague dismissed the first request (National Jurisprudence Number (Landelijk Jurisprudentie Nummer), “LJN” BP4424), holding that, although it was of the opinion that the applicant association was indeed a religious denomination within the meaning of section 2:2 of the Civil Code, the applicant association had not substantiated its interest in such a declaration. The Regional Court also dismissed the second and third claims, referring to the Supreme Court’s judgment of 9 January 2007 (see paragraph 17 above). 20. The relevant sections of the Opium Act read as follows: “It is prohibited to A. import to or export from the territory of the Netherlands; B. cultivate, prepare, modify, process, sell, deliver, supply or transport; C. possess; D. manufacture the substances featuring on List I annexed to this Act ...” “1. The Minister [of Health, Well-being and Sports (Volksgezondheid, Welzijn en Sport)] can ... grant an exemption from a prohibition as referred to in section 2 ...” “1. An exemption can be granted only if the person requesting it has satisfied the Minister: a. that it serves the interest of public or animal health; b. it is needed for carrying out scientific or analytical-chemical research or for educational purposes, in so far as the interest of public health is not harmed thereby, or c. it is needed for carrying out an act as referred to in section 2 ... pursuant to an agreement with: 1. another person to whom an exemption has been granted under section 6; 2. a pharmacist, or a physician who keeps a pharmacy; 3. a veterinary surgeon; 4. an institution or person indicated under section 5(2) or (3) [i.e. specifically authorised medical, dental or veterinary institutions or practitioners, and their patients]; 5. a person holding a license or exemption granted in another country for the import of the substances in issue into that country, in so far as the interest of public health is not harmed thereby. ...” 21. DMT appears on List I annexed to the Opium Act under the appellations N,N-dimethyltryptamine and 3-[2-(dimethylamino)ethyl]indol. 22. On 21 May 2001 (LJN: AB1739) the Amsterdam Regional Court held, in a case similar to the present one, that expert reports indicated that the Santo Daime church should be considered a legitimate religious association and that its teachings constituted a religious conviction (geloofsovertuiging) in themselves. It held that the prohibition contained in the Opium Act should not be applied in view of the fact that the ritual use of ayahuasca in church services entailed virtually no risks to public health. The Regional Court therefore considered that, since the drinking of the ayahuasca tea was such an essential part of the believers’ religious practice, freedom of religion as guaranteed by Article 9 of the Convention should attract greater weight than the prohibition contained in the Opium Act. Subsequently, the accused was discharged from further prosecution of the criminal offence under the Opium Act. 23. On 26 March 2009 (LJN: BH9844) – i.e. after the decision of the Supreme Court in the present case – the Haarlem Regional Court ruled on a case involving a person who had been apprehended at Amsterdam Schiphol Airport with a number of bags containing ayahuasca in his luggage, intended for use during church services as described above. The Regional Court found that there were virtually no risks to public health involved in the consumption of the brew in the setting of the church services. The Regional Court further considered that the import of ayahuasca was regulated by specific rules and regulations issued by the church. It concluded that in these circumstances the protection of freedom of religion guaranteed by Article 9 of the Convention outweighed the prohibitions contained in the Opium Act. 24. On 24 February 2012 (LJN: BV6888) the Amsterdam Court of Appeal upheld the Regional Court’s judgment of March 2009, against which the Public Prosecution Service (Openbaar Ministerie) had appealed. The Court of Appeal considered that there was a certain difference between the case before it and the case decided by the Supreme Court on 9 January 2007 – i.e. the first applicant’s case (see paragraph 17 above). In this case, the accused had established that the drinking of ayahuasca was indeed an essential part of the practice of his religion. The Court of Appeal held that this conclusion warranted an examination of the merits of the case and its specific circumstances, whereas the Supreme Court in January 2007 had only carried out an abstract examination of the merits of the case. Restating the judgment of the Haarlem Regional Court, it held that in this case the application of the Opium Act was not “necessary” within the meaning of Article 9 of the Convention. 25. On 17 September 2012 the Government informed the Court that an appeal on points of law had been lodged by the Public Prosecution Service against the Amsterdam Court of Appeal’s judgment of 24 February 2012. As far as the Court is aware, the proceedings are still pending. 26. The Convention on Psychotropic Substances (United Nations Treaty Series, “UNTS”, volume 1019, pages 175 and following) was adopted in Vienna on 21 February 1971. It entered into force on 16 August 1976. The Netherlands acceded to it on 8 September 1993. Attached to that Convention are four Schedules listing various categories of psychotropic substances. 27. As relevant to the case before the Court, the Convention on Psychotropic Substances provides as follows: