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Director of the OIJ on cannabis: “It will be transcendent that the cultivation action is preordered to trafficking to be a crime”

A book written in 2009, the current director of the OIJ, Walter Espinoza proposes that cannabis cultivation is not necessarily a crime


In a book published in 2009, entitled “DrugTrafficking Offences: Related Activities and its Investigation”, Walter Espinoza, the current director of the Judicial Investigation Agency (OIJ), maintains the thesis that for a cannabis crop to enter the category of crime there must previously be a typicity that could show the illicit activity.

The director of the OIJ proposes in his book that the cultivation of cannabis that is not designed to be trafficked is not considered as an activity that necessarily holds a crime.

“For purposes of typicity, the method of cultivation (traditional systems, hydroponics etc.), the place where the planting is carried out (soil, pots, outdoor or indoor garden) or the extent of the crop are indifferent. What will always be transcendent is that the growing action is foreordained to traffic, or is aimed at meeting consumer demand, regardless of whether the sown product requires further refining or processing in order to be placed in the hands of third parties,” he says in the chapter in the section on typical behaviors.

This fact is fundamental to the discussion of the legal situation of home cultivation. The case of cannabis cultivation in recent years has grown due to the fact that its use is commonly associated with health-accompaniment therapies, food purposes for its nutritional richness or for spiritual purposes.

This statement may explain why the Third Chamber in its resolution No. 481-2018 of 29 June 2019 releases the accused Mario Cerdas for a cultivation action for self-consumption.

For Espinoza, many of these crops are intended for trafficking purposes.

“Experience indicates that these actions are usually permeated by the mood to intervene in the commercial shift of drugs.” he says.

However, this is not all cases. Just as the resolution proves.  The truth is that at the legal level, the action to grow does not necessarily encompass the marketing action, which is undoubtedly a new territory for the authorities.

“The legislator’s strategy, with the prohibition of the initial phases of trafficking, was to structure a wide-restricted punishable spectrum that begins at times prior to the existence of the drug “consumable”, which is the phase when production, cultivation or extraction activities are implemented. However, it requires the demonstration that the actions executed are determined by the aim of intervening in the commercial turn of drug trafficking”, emphasizes Espinoza.

The national reality is different from that which the thesis of espinoza’s book rests very professionally. In order to improve the judicial system, respect for the principle of cultivation for self-consumption would put a stop on the abuses that have been being committed on the rise against the most vulnerable people in society and thus restore peace.

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