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  The
long awaited trial of Geraldine and Hans was finally held
last friday, march 23 2001 in the District Court of Amsterdam.
Before three judges the prosecuter fliled the complaints and
the defense lawyers could bring in their arguments, which
were mainly focussed on the freedom of religion and the absence
of harmfull consequences when the ayahuasca-tea was served
in a religious service with proper preparations of the participants.
Arno
Adelaars, a journalist with a longtime interest in entheogenic
substances sent me an excellent overview of the court proceedings
and with his kind permission I am passing the detailed information
on to interested reader. During the presentation of his complaints
the Prosecutor caused a big surprise by bringing in new documents
from the Dutch government and the United Nations which completely
supported our claims. In a letter to the Coordinating Board
of Prosecutors the National Health inspection of Holland responded
to a request of the Prosecutors to start a "risk-analyzing
process about DMT use in religious groups in the Netherlands."
This request was denied by the inspection because "ayahuasca
use does not constitute a public healthrisk, neither is there
any danger for public order or criminal connections in Holland."
The
letter continues that the Dutch authorities have consulted
about this case the United Nations International Narcotics
Control Board in Vienna. The
U.N. concluding remarks are very significant for all
ayahuasca using groups:
"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 and, therefore, not subject to any
of the articles of the 1971 Convention."
We
have to keep in mind that this is the secretary of the United
Nations Control Board himself giving an interpretation of
the Conventions jurisdiction! His opinion is not agreed by
with many lawers, like the Amsterdam prosecutor.
Nevertheless
the Dutch health authorities considered this United Nations
declaration as one more argument to support their claims that
ayahuasca use in religious services is no danger to public
health and should therefore not be researched any further.
All
this is bringing in new information in the court case; just
today we heard that the court made an advancement of their
ruling. Instead of april 6th the court will now give a ruling
on april 3rd!
Most
likely the court will rule about some general legal arguments
and ask for more time to contact the responsabible government
officials (and likely their ministers) to receive a confirmation
about their viewpoints. Again we do not yet know for sure,
but this promises to be very good news to the prospects of
a legalisation of the Santo Daime use in religious services
in Holland.
Also
there was a lot of media attention, ranging from television,
popular magazines and newspapers. The information for the
readers was generally very fair and sofar never any sensationalism
was publised. All this adding to the growing conviction that
the Santo Daime from the forest is receiving a legitimate
place in the religious groups who are protected by law to
practice their religious services in Holland. Soon we will
know more and enter again the internet to provide you with
the latest information,
best wishes,
Hans
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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 © Amsterdam
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 surpirised, 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. Adéle 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 University
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.
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.
Adéle
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.
Adéle
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.
E-mail: nota@xs4all.nl
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