Nicaragua: Part II -The Nicaraguan Cannabis Policy: A de Facto Decriminalization for Personal Use.

Author: Elvin Rodriguez Fabilena

Refresh your memory with Part I 

According to Article 325 of the Penal Procedure Code of the Republic of Nicaragua (Law No. 406), the victim of a crime, the administrative authority, or the National Police (depending on the case) is authorized to present a verbal or written accusation before the local judge.

So, in the case of a misdemeanor, the prosecutor is not competent to make the accusation. This is the reason why in this section of the abstract I included an interview with the competent local judge of León, Nicaragua, Mrs. Nardis Núñez. The interview is contained in the Thesis “Proposal of Regulation of Cannabis Plant in Nicaragua, as an alternative to drug trafficking and organized crime”, of which I am a co-author.

First, I asked the judge who presses the charges in the case of a misdemeanor related to narcotics, specifically minor possession of marijuana. The judge answered that in such cases, the National Police would press charges. The prosecutor is an official of the National Police in misdemeanor cases, but it is necessary to clarify that the law states that first, the National Police should try mediation.

However, the National Police do not want to mediate in cases related to drugs, even when the case is minor possession of narcotics, which is by definition a misdemeanor and not a felony. I asked the judge what the penalties are for people who commit misdemeanors related with minor possession of marijuana. The judge answered that it is in public interest for the consumer to get rid of the vice, so the penalties are community service and days’ fine. This service could be, for instance, caring for the plants at City Hall and the Health Centers, or according to the specific skills or occupation of each accused. The judge also said that in the previous Penal Code of 1974, the penalty established was prison, but she asked herself how the society benefits by imprisoning people. With the new Penal Code, which came into effect in 2008, the purpose was to re-educate the consumer, according to article 561.

She also said that the accused can negotiate & mediate with the police to achieve a compromise in a reasonable time. For this kind of compromise, it is essential that the accused is interested in changing his or her behavior. Therefore, the accused can negotiate that he or she will commit to going to a rehab center. It is also possible to offer other measures. The accused can plead guilty and negotiate to receive a minor punishment. I asked the judge that, taking into account that there are misdemeanors related to minor possession of marijuana in the private homes of the detainees, whether she thinks the National Police behave properly in these cases. The judge answered that the National Police commonly violate a person’s right to privacy & other constitutional rights such as the right to intimacy. She also mentioned that there are complaints before human rights organizations in case of raids without judicial orders and raids with judicial authorization occur when the police are aware that the person makes a practice of selling drugs. Police usually detain drug users when they have been found consuming drugs on the streets.

In addition, I asked the judge what is the biggest obstacle to tackle in cases of minor possession. Her answer was that it is necessary to close the court case if the charge is not prosecuted. She also said that some cases are closed because no charges are pressed within three months, or it could be that at the trial the witnesses do not come and it is necessary to absolve the accused of the charges. For instance, the court called the victim, that in these cases is the National Police on behalf of the society, and they do not come, so the default it is declared. This is special in cases of misdemeanor related to narcotics, psychotropics and other controlled substances. Such cases are a waste of time. Even though the National Police detain the consumers because they to obtain information about where the consumers buy the drugs, they are breaking the law.

I also asked the judge if those accused of marijuana possession are consumers or dealers. The judge answered that they are always consumers and that they are usually people with the economic capability to purchase or store marijuana for a longer time. The judge also said that trafficking could not be proven in those cases. She added that sometimes people are found possessing more than five grams of marijuana, but maybe it is because it is their reserve for consumption and not because they are drug dealers. However, it is necessary to clarify that the drug dealers have diversified their ways of operation, in relation to the drug amount seized; as a consequence, the National Police cannot prove that they are drug dealers because they carry small quantities. The quantity itself is not enough proof of trafficking. I also asked the judge what she thought about the efficiency of the drug policy. She answered that when a person is processed for possession of marijuana it is a waste of time and resources. So, she said that is not worthwhile to imprison the person who is detained for minor possession of narcotics. She also said that this person should not be jailed before coming to trial. Misdemeanor charges involve more documents and are more tedious than charges of felonies. She said that it means more waste of paper and time. Misdemeanors are not penalized by time in prison. However, the National Police bring people arrested for misdemeanor offenses to prison pending trial, even though if convicted they would not face prison time. It is a State Policy directed by the National Police because of its preventive approach, in coordination with the interinstitutional of penal justice.

Furthermore, I asked the judge if the misdemeanors related to minor possession of narcotics are committed violently. She answered that generally there is not violence in the commission of these misdemeanors. I also asked the judged if some of the accused have claimed to need the marijuana for medical purposes. The judge answered that nobody has made that claim, and also that medical use is not authorized by medical prescription or by the law. In addition, I asked the judge what are the measures for recidivism in cases of misdemeanors related to narcotics. The judge answered that for consumers who are detained two or three times for the same misdemeanor, who are sent to health centers, but do not finish the treatment and leave before its completion, it is necessary to have the cooperation of their family, and especially that the consumer is interested in overcoming dependence on drugs.

Moreover, I asked the judge what the arguments are from Prosecutors in cases of serious crimes and from the National Police in cases of misdemeanors, at the moment of arrest in these causes. The judge answered that those authorities claim Article 166 of the Criminal Procedure Code, which states the request of preventative prison for the accused. They also claim that the policy of drug prosecution is not about seizing the kilos, but about seizing the small drug dealers, because they promote the addiction. About the caution, the judge mentioned Article 173 of the Criminal Procedure Code, which states the requirements to impose preventive prison in case of crimes which maximum penalties are less than five years of prison. In such cases, the judge has the ability to impose pre-trial prison or not. The prosecutor usually accuses of drug trafficking those people detained with five up to 20 grams of marijuana, according to the police investigations, which follow up their actions during a specified time and accumulate evidence against the accused, but what really matters is what can be proved in trial. In relation to the misdemeanors, at the moment of arrest in these cases, the Police claim that it is State Policy and Police policy not to mediate, even though the Penal Code allows mediation and Article 563 commands mediation in cases of Misdemeanors.

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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild