Colombia: the Constitutional Court invalidates the prohibition on the consumption of alcohol and substances on public thoroughfares

The Colombian Constitutional Court has just declared inapplicable two norms of the Police Code (articles 33 and 140) which prohibit the consumption of alcohol and psychoactive substances on the public highway and in parks. The Court's Social Chamber ruled by six votes to one that these regulations violated the right to free development of personality.

La Corte Constitucional declaró inexequibles las expresiones 'alcohólicas, psicoactivas o' contenidas en el Artículo 33 (lit. c, num. 2); y las expresiones 'bebidas alcohólicas' y 'psicoactivas o' del Artículo 140 (num. 7) del Código de Policía (Ley 1801 de 2016). 1/3 pic.twitter.com/XwBKmc0OlV

- Corte Constitucional (@CConstitucional) June 6, 2019

A question of proportion

The Police Code specifies that the prohibition of the consumption of substances on the public highway is intended to protect «the tranquillity and conviviality of relations in the public space» as well as «the integrity» of the latter. However, according to the Supreme Court judges, the consumption of alcohol and other substances is not in itself a problem, but rather its abuse. They therefore consider that it is not legitimate to ban all consumption, and imply that there are forms of responsible consumption which contribute to the conviviality of the public space.

In practice, this means that the police will no longer be able to seize and destroy the substances in question, nor oblige citizens to follow a prevention or rehabilitation program. “There are other police means in this same Code to achieve the same ends without sacrificing individual freedom,» explains magistrate Diana Fajardo. The police can, for example, intervene in cases of aggression linked to substance abuse. Responsible« citizens will no longer be hassled simply for drinking a beer or smoking a joint in a park, for example - before, the police could fine and disperse the group.

According to the court's judges, a total ban on public consumption is a form of state interference in the lives of citizens: «The free development of personality is linked to the general clause of freedom», explains the magistrate Gloria Stella Ortiz. «It's the state that guarantees that, as a free and autonomous being, everyone makes their own decisions. The state does not define a life plan. People have the freedom to make the decisions that suit them.

This constitutional freedom has been applied to drug consumption in Colombia since 1994, when the Supreme Court established a decriminalized personal consumption dose (set at 20 grams of cannabis and 1 gram of cocaine) known as the «minimum dose». This historic measure had has recently been called into question by presidential decree. Under the pretext of combating micro-trafficking, the current president, Ivan Duque, last October authorized the police to seize any quantity of drugs from consumers, thereby cancelling out the principle of minimum dosage.

Justice versus government

The Supreme Court's verdict stems from a complaint lodged by two citizens against Ivan Duque's amendments to the Police Code. The two plaintiffs denounced prohibitive measures that run counter to the right to free development of personality, the right to free use of public space and freedom of expression. They were successful, as the ruling invalidates the decree by modifying the norm on which it was based: «once this ruling takes effect, all legal content derived from the annulled norm will automatically be null and void», explains constitutional lawyer Johann Patiño.