Since a recent judgement from the Court of Amsterdam ayahuasca is considered illegal in the Netherlands. For a long time, the brew from the Amazon resided in a juridical grey area. This situation now seems to change.
What was the legal situation again?
Ayahuasca contains dimethyltryptamine (DMT) and DMT is scheduled under the Dutch Opium Law. In 1999 the first court case against Dutch Santo Daime members took place. The Prosecutor’s Office (OM) accused them of violating the Opium Law by drinking ayahuasca – or Daime, as it is named in the Santo Daime church.
Daime contains the same ingredients as ayahuasca, but it is prepared by members of the Santo Daime, following a specific ritual. The church members consider Daime to be their sacrament.
In 2001 the court of Amsterdam considered Santo Daime to be a recognised religion. Therefore, the consumption of Daime as a sacrament fell under the protection of the European Convention on Human Rights (article 9). According to the court, the controlled setting in which the ritual takes place offered enough protection to prevent possible risks to public health.
What happened now?
The current court case is about Daime as well. In 2016 a member of the Amsterdam church Céu da Santa Maria was arrested when she tried to import 29 kilos of Daime from Brazil. Following the 2001 verdict and later similar cases, the court of Haarlem acquitted her.
The Prosecutors Office went to the Amsterdam Court, who honoured the appeal. In the verdict of 28 February, 2018 ayahuasca is equated to DMT. The judges argue that DMT is illegal and that it forms a threat to public health and society in general. They consider its former protection – based on freedom of religion – no longer applicable. This verdict makes ayahuasca illegal following the Opium Law.
It is interesting to note that this time the Court of Appeal did not look at the risks for public health within the controlled ritual setting of the Santo Daime church (in concreto). Instead, they focused on the risks for society in general (in
To be continued?
As expected, the accused will appeal to the Dutch Supreme Court in The Hague. There will be evaluated whether the juridical procedure was followed correctly and whether the argumentation of the judges is formally correct. Finally, the case could be brought to the European Court of Human Rights in Strasbourg.
It is expected that it will take 1.5 to 2 years before the Supreme Court will pronounce their verdict. Until that time the Prosecutors Office most likely won’t maintain the new rules. So - for the time being - probably nothing much will change.
However, if the Supreme Court will confirm the current verdict, things will be different. Then the import, preparation, transport, possession and distribution of ayahuasca will be punishable, just like organising or participating in ayahuasca ceremonies.
DMT or ayahuasca?
DMT is considered a threat to public health because it is listed in the Opium Law. However, it’s never proven to be seriously dangerous to human beings. Moreover: DMT is an endogenous substance in the human body and it is found in many organisms all over the world.
Furthermore, DMT is not the same as ayahuasca (or Daime). In the international Convention on Psychotropic Substances from 1971, only DMT as an isolated substance is prohibited. ‘No plants (natural materials) containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g. decoctions) made of these plants, including ayahuasca are not under international control,’ could be read in an explanation.
According to Rini Hartman, who attended the current court case, this is one of the aspects that need to be investigated by the Supreme Court. He further points at a possible mistake of the Court of Appeal, who judged the risk for public health in
Hartman further announces that ‘an interdisciplinary team of experts’ will be formed, ‘to collect all the relevant juridical, medical, scientific, and social data against this court’s decision’. These will be published in a scientific paper.
Ayahuasca is nearly always consumed in a ritual setting. Furthermore, it is not addictive. Scientific research into the effects of ayahuasca actually point to the opposite. The brew has proven to have antidepressant effects and makes people more creative. Another study shows the therapeutic effects of ayahuasca are comparable to that of a course in mindfulness.
Experts do stress the importance of good education about ayahuasca and of consumption in a structured setting with experienced guides, because the tea may have intense effects. People with psychotic tendencies are discouraged to partake in the rituals. Because of its MAO inhibiting effect, the brew should not be combined with certain medications, like antidepressants.
Not prohibition but legalisation of ayahuasca will stimulate good education. Furthermore, accessibility of safe and well-structured ritual settings will be improved. Like various professional ayahuasca providers, the Santo Daime church offers such a safe and stable setting. A juridical verdict that prohibits ayahuasca will therefore be a step in the wrong direction.
Read more about this court case.