see
also: Geraldine
Fijnemann - The Story (by a Brazilian national newspaper)
Legal Considerations for
the Acquittal
The Court considers the following:
According to article 9, paragraph 2
of the European Convention on Human Rights and Fundamental
Liberties, freedom of religion cannot have limits other
than those described in the law, which are necessary in
the interest of public safety, the protection of public
order, health and morals, or the protection of the rights
and freedoms of others.
The accused was detained in a place
that, according to the police report, was apparently a church.
In that place the police observed an altar where two people
were serving glasses of a brown liquid in small cups to
people waiting in a line.
According to the report of the police
expert R. Jellema of October 15, 1999, 17.5 liters of this
liquid contained 3-4 grams of DMT, also known as dimethyltryptamine,
a substance mentioned in schedule 1, section C of the Dutch
Drug Law (Opium Act).
In the already-mentioned report of the
anthropologist Macrae it is stated that the religion of
Santo Daime originated around 1920 in Brazil, composed of
indigenous and African influences combined with Christian
concepts and values. New rituals were added to the old custom
of Ayahuasca ingestion.
Accroding to the charter of the Ceflu
Cristi-Céu da Santa Maria church, the Church has
as its purpose the practice of and reflection on the doctrine
of Santo Daime. The Church is affiliated with the Raimundo
Irineu Serra Eclectic Center of the Universal Flowing Light
[Centro Eclético da Fluente Luz Universal Raimundo
Irineu Serra] – CEFLURIS, which is based in the Vila Céu
do Mapiá - Amazonas, Brasil. The purpose of the Dutch
Church is based on the purpose of Cefluris, which may be
described as "the study, research and practice of the
doctrine of Santo Daime, quickening the divine spark in
human beings through its rituals, with the aim of integration
with the divine."
The expert historian Snelders concluded
in his already-mentioned report that the use of psychoactive
substances, particularly hallucinogens, is an essential
element of many pre-industrial cultures. This custom also
exists in syncretic religions that have originated since
the 19th century, and which combine the traditional
use with Christian belief systems. The Church of Santo Daime
can be situated in this same context of the use of psychoactive
substances.
The religious specialist Kranengorg
declared in his already-cited report that, from the point
of view of religious phenomenology, the combination of consciousness-expanding
substances with rituals is important for many religions.
The use of entheogens always happens in ritual contexts.
Ayahuasca is one of the most used entheogens, and the fact
of the Church of Santo Daime having opted to use this substance
as a method of religious experience makes it essential for
contacting the sacred and for the specific practice of adoration
of this cult, enabling one to affirm that the Church of
Santo Daime cannot exist without this substance.
Based on these expert reports, the court
reaches the conclusion that the Amsterdam center (Ceflu
Cristi - Céu da Santa Maria) must effectively be
considered a Church. The doctrine must be considered a religious
creed, and the use of the tea Ayahuasca, also called Daime,
being the most important sacrament within the Church of
Santo Daime, must be considered an essential part of the
religious experience of its members. The accused declared
in court that the Church of Santo Daime gave her support
and strength, and that Ayahuasca is used as a sacrament
together with dancing and the singing of hymns. The conviction
of the accused must, based on this, be considered religious.
This conviction, and also the religious
practice through which this conviction is expressed, is
under the protection of article 9 of the European Convention
on Human Rights and Fundamental Liberties.
According to the Convention on Psychotropic
Substances, and article 2 of the Dutch Drug Law (Opium Act),
DMT is a prohibited substance. The public prosecutor argued
that the limitation of rights of religious liberty of the
accused would be justified by reason of public health. The
prosecutor did not mention the violation of other items
cited in article 9, such as public order, public safety,
morals and customs, or the protection of the rights and
freedoms of others. Despite having in this case a prohibition
by law, in the interest of a legitimate objective, mentioned
in article 9 of the Convention (public health), the court
cannot declare that the Drug Law serves this legitimate
objective, but it must, according to the jurisprudence of
the European Court of Human Rights and Fundamental Liberties,
rule concretely whether in this case reasons of public health
justify the limitation of religious liberty.
The specialist Prof. De Wolff describes
in his report (written at the behest of the Judge of Instruction)
undesirable effects of a mild nature, such as nausea, and
also more serious symptoms of intoxication may be observed,
for example in the form of high blood pressure or increase
of the cardiac load. Also cited is the inadvisability of
interaction between Ayahuasca and certain types of medicines
or foods. His opinion is that the list of questions furnished
to participants of the rituals, investigating the health
conditions of individual participants, and the information
about contraindications of the use of Ayahuasca, offer a
complete, reliable presentation of the possible risks. The
religious context implies, according to the specialist,
that the production of Ayahuasca and its use during rituals
is strictly controlled. Furthermore, the consumption
is directly related to the rituals, and always takes place
in the presence of individuals who have familiarity with
its effects.
Based on these reports, the experts
conclude that the use of Ayahuasca may be dangerous to health
in individual cases. But the information supplied by the
Church of Santo Daime is, in general, correct and sufficient.
The limited availability of Ayahuasca, and the strictly
regulated circumstances in which it is utilized, form a
protection against any type of abuse. In view of this, and
of the limited number of adepts, the conclusion of the report
is that, according to the current scientific knowledge,
it is unlikely that the use of Ayahuasca constitutes a danger
to public health.
De Wolff testified to the court regarding
the combination of Ayahuasca / Cannabis that the absence
of scientific studies on the combined effects of these two
substances does not give him reason to change his positive
conclusion about the Church of Santo Daime.
In accordance with the report of De
Wolff, the court concludes that ingesting Ayahuasca within
the religious context of the Church of Santo Daime does
not represent a significant risk to public health. Although,
in certain cases, the DMT and the Daime tea may pose risks
to health, the information furnished and the controlled
use within the context of the religious community represent,
in the opinion of the court, a sufficient guarantee against
unacceptable health risks, and in these cases the use of
the tea should be discouraged.
The safeguards provided by the religious
context against abuse of the substance, mentioned by De
Wolff, were also confirmed in the reports of Kranenborg
and Snelders.
In addition, the public prosecutor failed
to provide any concrete fact or circumstance that could
serve as a basis for demonstrating any risk that the use
of Ayahuasca could pose for public health.
In view of all this, the court reaches
the conclusion that in the case of the accused, the prohibition
determined by the Convention and by the Law against the
possession and distribution of DMT, by function of which
she could not receive, during the rituals, the most important
sacrament of her religious conviction, presents itself as
a real interference with her freedom of religion. This interference
cannot be seen as necessary in a democratic society.
In this case, a balance must be sought
between the interest of the accused that there be no interference
with her right to religious freedom guaranteed by the European
Convention on Human Rights, and the interest of the state
to fulfill its obligations relative to the Treaty on Psychotropic
Substances to prohibit DMT. By virtue of the great importance
placed on religious liberty, and of the circumstances that
permit that the ritual use of Ayahuasca not result in a
significant risk to public health, the court considers that,
in this case, the protection of religious liberty must have
the greater weight. This means that, in this case, article
2 of the Drug Law (Opium Act) loses its force.
In view of this, it is determined that
there has been no crime committed under the law.
