General situation
While ayahuasca is not specifically forbidden in Germany, DMT is illegal under the Betäubungsmittelgesetz (“BtMG”), the German narcotics act. DMT is in Schedule I of the BtMG, which means supplying, cultivating, or manufacturing it carries criminal penalties of up to 5 years’ imprisonment, or 15 years when large quantities are at issue. Thus, possession, sale, production, or consumption of ayahuasca containing DMT in Germany can carry criminal penalties. As in most other countries, in Germany the plant ingredients of ayahuasca, Banisteriopsis caapi and Psychotria viridis, are not explicitly controlled. However, we have received numerous reports of German customs agents seizing parcels of a different DMT-containing plant, Mimosa hostilis, which resulted in arrest warrants and criminal charges. This has been happening since at least 2012
The Brazilian Ayahuasca religions, especially the Santo Daime branch, began attracting interest in Germany in the early 1990s. Their legal troubles began soon afterwards. An extreme raid on a campsite of Santo Daime members from Brazil near a castle in Thuringia, involving nearly 100 heavily armed police officers, resulted in widespread media attention and demonization of ayahuasca. Moreover, during the raid German police seized papers and documents which led to an international investigation of Santo Daime that resulted in a raid of a Santo Daime church in Amsterdam and arrests of members of Santo Daime in France (thus making it evident that since long ago authorities seem to work in a cooperative manner across countries). More than fifteen years after the Thuringia castle raid, criminal charges against the Santo Daime members in Germany were ultimately dropped.
Current reports from our sources in Germany indicate that the import of ayahuasca is strictly controlled, though the international branch of the Santo Daime seems to operate with a degree of freedom in several German cities. However, we have received notice of a new and ongoing criminal investigation involving ayahuasca, discussed below.
International law
The Convention on Psychotropic Substances (1971) subjects several psychoactive compounds contained in plant species to international control. DMT (N,N-dimetyltryptamine, a tryptamine alkaloid contained in Psychotria viridis and other plants generally used in the preparation of ayahuasca) is a Schedule I controlled substance in the Convention. However, according to the International Narcotic Control Board (INCB) Report for 2010 (par. 284) ‘no plants are currently controlled under that Convention […]. Preparations (e.g. decoctions for oral use) made from plants containing those active ingredients are also not under international control’.
There is no general consensus among judges and law enforcement officials on whether ayahuasca is illegal because it contains DMT, or not. It is up to national governments to make the final decision in their own jurisdictions on whether to impose controls on these plants and preparations, including ayahuasca.
National drug legislation
Ayahuasca (containing DMT) is illegal under German federal law. DMT is listed in Schedule I of the Betäubungsmittelgesetz. (“BtMG”), Germany’s narcotics law, which means ayahuasca (containing DMT) is illegal to possess, import and export, prepare, and trade in Germany. Under the BtMG, Possession of ayahuasca containing a “not small amount” of DMT can carry criminal penalties of up to 5 years’ imprisonment, and 15 years’ imprisonment if aggravating circumstances, such as very high quantities, exist. What qualifies as a “not small amount” of DMT was established for the first time by German courts in 2012, in the case of LG Frankenthal, at 3.6 grams (120 doses) of DMT.
The plant ingredients of ayahuasca, B. caapi and P. viridis, are not controlled and can be bought online in Germany. However, we have received reports of several cases involving seizure of M. hostilis, another DMT-containing plant, by German customs. It appears that under the logic of German law enforcement, possession of plants containing DMT is illegal when the plants are intended for consumption. Thus, while the plant ingredients of ayahuasca are not explicitly controlled in Germany, possession of them when they are intended for consumption may result in criminal charges.
Ayahuasca religions operate openly in several German cities, though consuming ayahuasca is neither permitted nor encouraged by German law enforcement. For people with other modes of ayahuasca use, such as shamanic or therapeutic uses, the risk of prosecution is high. We have received reports of a number of criminal cases involving practitioners using various psychotropic plants, including a search, seizure, and arrest related to an international group with local ramifications in early 2017. Facilitators of ceremonies may face charges and possible jail time, while participants may be questioned and have to participate as witnesses in criminal cases.
On the other hand, the medical use of cannabis in Germany is legal and paid for by health insurance as of January, 2017 (see here and here). This indicates that other plants with significant medical benefits, such as ayahuasca, may soon be recognized for their medical potential.
Cases
Our sources in Germany have reported numerous cases involving various psychoactive ethnobotanicals, including several involving the seizure of Mimosa hostilis by German customs. However, information about cases specifically involving ayahuasca is quite limited. See some cases below.
Frank Natale Ceremonies (1994)
In the 1990s, after a series of ayahuasca ceremonies led by the New Age leader Frank Natale and loosely based on Santo Daime, a ceremony attendee gave a urine sample to a drug laboratory for testing, which resulted in the detection of trace amounts of amphetamines. A criminal investigation ensued. Whether the amphetamines were from sources outside of the ayahuasca ceremonies was unclear, but their presence was sufficient to result in a public prosecutor opening an investigation into the ceremony organizers. The investigation was ultimately closed due to a lack of information.
The Thuringia Castle Raid (1999-2007)
After the summer of 1999, when the famous raid of the União do Vegetal in New Mexico in the United States (ultimately resulting in UDV successfully defending its right to use ayahuasca (hoasca) in its religious ceremonies before the United States Supreme Court in 2006), Santo Daime congregations around the world were on high alert.
German Santo Daime churches, aware that their own legality was in question, decided to push forward with the legalization process with a coordinated event in 1999. More than 100 armed police officers, including a special federal taskforce with black masks and machine guns, interrupted the event, raiding the campsite by a castle in Thuringia where the Santo Daime delegation from Brazil was staying, putting everyone under arrest, interrogating them, seizing papers and documents, and confiscating 62 liters of ayahuasca (Daime).
The German Santo Daime community that was raided went into exile in the Netherlands. Negative media attention and Catholic cultural stigma soured their presence at home in Germany. Meanwhile, the Santo Daime community-in-exile informed the German prosecutors that they were willing to go to trial to protect their rights to use ayahuasca (Daime), and defend their religious freedom.
After more than seven years of sparse contact from German prosecutors, charges against the Santo Daime community-in-exile were dropped in 2007. In conclusion, the public prosecutor argued that they had acted without knowing they committed a crime—a defense that may be used only once.
Source
Silvio A. Rohd e and Hajo Sander, “The Development of the Legal Situation of Santo Daime in Germany” The Internationalization of Ayahuasca (Beatriz and Henrik Jungarberle Eds.) pp. 339-251 (2011)
LG Frankenthal (7 December 2012)
This is not the only case of German customs seizing Mimosa hostilis. However, in this case, a German court for the first time in a published decision established what a “not insignificant amount” of DMT contained within plant matter might be. Though the plant matter in question was M. hostilis, the legal rule that came out of the case can be applied to ayahuasca.
LG Frankenthal ordered approximately 1.6 kilograms of M. hostilis containing approximately 24.2 grams of DMT from an online retailer based in the Netherlands, to be delivered to his summer residence in Thailand. However, the package was sent to Germany, where customs officers seized it and began criminal proceedings.
The court’s expert set the limit for a “not small amount” of DMT at 3.6 grams, calculated by multiplying the amount for one unit of freebase DMT—30 mg—by 120. At 120 doses of DMT, 3.6 grams is a “not small amount” and amounts less than 3.6 grams may be considered “insignificant amounts.”
Though the amount of DMT contained within plants and within the ayahuasca brew itself can vary widely, it is worth keeping in mind that possession of any plant or preparation containing DMT in Germany can carry criminal penalties when the plant or preparation is intended for consumption.
European Court Decision (10 July 2014)
Here, the European Court ruled that that substances and preparations which are not classified as “narcotic drugs used for the purposes of intoxication” cannot be prohibited under the German Medical Products Act. Although the case pertained to synthetic cannabanoids, it applies to ayahuasca in the following way: brews containing only B. caapi (which contains harmala alkaloids but does not contain DMT) cannot be forbidden in Germany because harmala alkaloids are not classified as “narcotic drugs used for the purposes of intoxication.” This decision appears to allow the use of the ayahuasca vine, B. caapi, in Germany. However, it is important to note that this decision does not allow the use of the ayahuasca preparation containing P. viridis or any other DMT-containing plant).
Updated: June 2017
Relevant documents
- Fax INCB 2001 Netherlands
- INCB letter ICEERS
- Hoasca 1971 Convention Legal Brief
- INCB Annual Report 2010
- INCB Annual Report 2012
- UN Declaration on the Rights of Indigenous Peoples
- TNI/ICEERS Ayahuasca Policy Report
- ICEERS Technical Report on Ayahuasca
- Plantaforma Ayahuasca Report Spain (Spanish)
- Declaration of Principles of the Religious Groups who consume the Tea Hoasca
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