One aspect that is emphasized in the ruling issued this week by the Constitutional Court on the consumption of psychoactive substances, where it maintains the restriction, even of the minimum dose, in parks and public spaces, is the need to also protect the right to non-consumer citizens, especially in the case of children and minors.
The Colombian State in the fight against illicit drugs initially penalized consumption, on the one hand because it generates a market and, therefore, drug trafficking; and on the other, to face a public health problem, taking into account the damage generated by these substances.
However, the way in which the State can deal with the problem of illicit drug consumption was changed by Ruling C-221 of 1994 of the Constitutional Court, in which it decriminalized the minimum dose.
The High Court came to consider in that sentence that if the right to the free development of personality has any meaning within our system, it must be concluded that the rules that make drug use a crime are clearly unconstitutional.
On the contrary, the Court determined that it is a duty of the State to promote the treatment of people so that they can overcome their addiction.
Although with the decriminalization of the minimum dose, the Court protected the consumer’s right to develop his free personality and that only he, not the State, is responsible for deciding whether or not to use narcotic drugs, despite the fact that this affects his health; From that moment on, a problem arose for non-consumer citizens, because in public places such as parks, theaters, sports venues, they had to live with people who take drugs.
This situation, which in itself can be hateful for many citizens, became more problematic when the parks, where their children are, most of them boys, became one of the favorite places for users of marijuana, cocaine and synthetic drugs among others.
In Law 1801 of 2016, by which the National Code of Citizen Security and Coexistence is issued, it was sought to regulate this matter in order to protect the right of citizens.
For this purpose, the norm in article 140 states: “The following behaviors are contrary to the care and integrity of the public space and, therefore, should not be carried out: consume, carry, distribute, offer or commercialize psychoactive substances, including the personal dose, in the perimeter of educational centers; also inside sports centers, and in parks”.
In the same way, this law indicates that it will correspond to the assembly or board of directors to regulate the prohibition of the consumption of psychoactive substances in certain areas of the common areas in residential complexes.
Likewise, it is prohibited to consume, carry, distribute, offer or commercialize psychoactive substances, including personal doses, in areas or zones of public space, such as historical zones or zones declared of cultural interest, or others established for reasons of public interest, which defined by the mayor of the municipality.
The Law establishes pecuniary sanctions for citizens who are unaware of this prohibition.
The demand
Three citizens sued before the Court this prohibition established by the National Code of Security and Coexistence, arguing according to them its unconstitutionality for violation of the principle of human dignity; ignorance of the right to free development of personality; and the violation of the right to health.
Among others, the plaintiffs defend that the decision to consume and carry psychoactive substances may not be shared by the State, but must be respected as an expression of living autonomously and freely. They added that these behaviors do not affect the care and integrity of the public space.
The Court declared the defendant norm enforceable, while in the judgment it ordered the national Government to issue a protocol for the application of the studied norms within 3 months from the notification of this decision.
He added that the protocol should emphasize, among other things, the guarantee of the rights of children and adolescents; respect for the fundamental rights of consumers; the reasonableness and proportionality of the police action to penalize the carrying and own consumption and for medical purposes of psychoactive substances in parks or zones or areas of public space determined by the district and municipal councils in the plans or schemes of territorial ordering; respect for territorial autonomy and self-government.
The Court highlighted the constitutional relevance of observing the principle of territoriality, so that through local regulations the conditions for the reasonable and proportionate application of the studied norms are specified, according to the specificities of the territories and communities.
The High Court noted in the ruling the police power that the Congress of the Republic has to regulate the exercise of freedom, rights and constitutional duties, for coexistence and establish the means and corrective measures in case of non-compliance .
Likewise, the subsidiary and residual power of the police that the departmental assemblies and the District Council of Bogotá have, as well as the other district and municipal councils, respectively, to dictate norms that do not have legal reserve and do not imply limitations, restrictions or norms. additional to the rights and duties of individuals, which have not been provided for by the Legislator.
consumption grows
In the last two decades, the consumption of narcotic drugs has grown, according to the Drug Observatory of the Ministry of Justice, the Ministry of Health and DANE.
Precisely, a survey carried out by DANE in 2020 indicates that the average age of initiation of consumption of illegal psychoactive substances is 18.8 years. 50% of people between the ages of 12 and 65 who used them at some time did so at age 18, 25% at age 15 and 75% at age 20.
When analyzing consumption by substance, it was found that the highest prevalence is found in marijuana with 8.30% of people aged 12 to 65 who reported having used it at some time in their lives, 2.68% in the last 12 months ( year) and 1.78% in the last 30 days (month). It is followed to a lesser extent by the consumption of cocaine and inhalable substances such as glue, sacol, paint, thinner, dick (ladys, fragrance), popper, among others.
While in recent years the consumption of synthetic drugs has grown in the country, according to the Ministry of Health.