General situation
In Italy, ayahuasca use has some presence, with a Santo Daime church founded in the early nineties, a recently emerging UDV group, and a few shamanic, therapeutic, and New Age circles around the country. As is the case with the majority of the European countries, the legal status of ayahuasca in Italy is a controversial subject. There is no law or decree stating that ayahuasca is forbidden; however, the presence of DMT, scheduled in national legislation, makes the matter open to divergent interpretations.
Some Italian Santo Daime members were involved in an important legal case that marked a watershed in the Italian legal landscape. The case, which lasted from 2004 to 2006, ended up with a plain acquittal, and, due to the fact that some judgments were issued by the Italian Supreme Court, those sentences are now being taken as “orientation” by the judges called to evaluate similar matters. However, sentences imposed by the Supreme Court are not meant to represent “factual law”; they only serve as precedents, and judges will likely use them as a guide. Due to this, there is currently a relaxed feeling about offering ayahuasca ceremonies. However, people continue to have their ayahuasca seized and new cases are being initiated, showing that the situation is far from being entirely safe and certain.
International law
The Convention on Psychotropic Substances (1971) subjects several psychoactive ingredients 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 1 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.”
Italy has ratified several international conventions regarding psychotropic substances, with the agreement to elaborate national laws in accordance with the general principles expressed there. Those conventions are: a) the Single Convention on Narcotic Drugs of 1961, implemented through law L. n. 412, June 5, 1974; b) the Convention on Psychotropic Substances of 1971 implemented by law L. n. 385, May 25, 1981; c) the Narcotic Drugs and Psychotropic Substances Convention implemented through law L. 329.
At the European level, on May 6, 2014, the European Court of Human Rights rejected the application to review a case from the Netherlands in which a Santo Daime member (who had 120 liters of ayahuasca seized from her house then sued to get it back) stating that Dutch prohibitions on the possession of ayahuasca were not in violation of the right to religious freedom enshrined in article 9 of the European Convention on Human Rights.
National drug legislation
Italy is signatory of the Convention on Psychotropic Substances (1971). Inspired by this Convention, it demurred from defining an operative concept of “psychotropic drug,” choosing instead a system based on schedules. Those schedules are updated constantly, following the general criteria enunciated by articles 13 and 14 of the law D.P.R. 9 n. 309, October 1990. Through this law, it was also established that the schedules must be compiled by the Ministry of Health, the Ministry of Justice, and several other Advisory Bodies.
The Schedule 1 designation was intended to contain the most dangerous and, therefore, the most punishable drugs. According to this law, DMT is classified as Schedule 1, but no plant traditionally used to prepare ayahuasca, such as Psychotria viridis or Banisteriopsis caapi are scheduled. This principle has also been reaffirmed by the Ministry of Health in a document published on December 30, 2010.
In article 14, comma 1.7.a, of the before mentioned Decree n. 309, 1990, it is written that Schedule 1 must include “any other plant which active principles [that] can induce hallucinations or serious sensorial distortions, and any substance obtained through extraction or chemical synthesis that can induce the same typology of effects, in damage to the central nervous system.” Depending on the interpretation, this statement makes it possible to include ayahuasca in Schedule 1: It is left to the general international orientation and to the local competent authorities to decide if and when to make this step.
Cases
There have been a few lawsuits brought against ayahuasca drinkers in Italy since 2004. The situation seemed to have reached a stable point after the pronunciations of the Supreme Court, but recent cases signal a turn that concern around ayahuasca seems to have been reignited.
Santo Daime Church (2004–2006)
The principle and most famous of legal cases in Italy happened in March 2005, involving representatives of the Italian Santo Daime Church. In 2004, 27 liters of Daime/ayahuasca sent from Brazil were confiscated in the Perugia airport. After finding DMT in the material apprehended, the legal case began, with the main accusation being international drug trafficking. As a first step, the lawyer of the Santo Daime church pled to the Supreme Court of Rome that the confiscated brew was not scheduled under Italian law, and that the accusations should therefore be considered invalid.
The Supreme Court of Rome answered that in order for it to be established if the brew was an illegal or not, the prosecutor needed to answer some detailed scientific questions. On October 6, 2015, the Supreme Court stated that the prosecutor couldn’t adequately respond to these issues. This led to the filing of the case by the Tribunal of Perugia on April 4, 2006, and to the release of all those involved on January 13, 2006.
A Ramification of the Santo Daime Church Trial (2009)
One year later, another prosecutor managed to reopen the case in another tribunal, with only one among the original 21 of the previous people charged involved. The new case took place in Reggio Emilia, and had as a central focus answering the questions of the Supreme Court of Rome. In this case, the toxicologist nominated by the prosecutor also failed to demonstrate the evidence of the illegality of ayahuasca, and the Tribunal of Reggio Emilia followed the defense statements. It is important to underline that the justification of the rejection of the prosecutor’s toxicologist’s thesis was that “he didn’t present enough scientific documentation in support of it,” as stated on April 27 2009. As a result, the charges were dropped.
Santo Daime: Another Administrative Case (2009)
In the same year, other members of the Santo Daime Church were involved in an administrative legal case about ayahuasca; but, thanks to the previous attainment (the Supreme Court’s statements), they were all acquitted. On December 30, 2010, the Ministry of Health stated that in spite of the fact that DMT is a controlled substance, harmine, harmaline, Psychotria viridis, and Banisteriopsis caapi would not be listed in the Schedule 1 of the D.P.R. 309/1990.
An Arrest Due to German Customs (2012)
On November 19, 2012, the Italian police seized two packages containing ayahuasca, after being informed by the German customs. The defense sent the results of the Supreme Court to the Crown Prosecution Service and the Crown Prosecution Service decided not to open the case.
A New Arrest for Receiving Ayahuasca Through Mail (2016)
In October 2016, a 30-year-old man was arrested for receiving a package containing 4.5 kg of ayahuasca from Peru. He was released after three weeks and he is now waiting for the next judicial hearing. The ayahuasca confiscated has been analyzed, and the legal report of the prosecution stated that it couldn’t be considered a decoction because it contains traces of “hydrocarbon organic solvent, that allows a significant enrichment of substances in the final preparation, compared with an extraction with boiling water.” Therefore, it should be considered as “chemical preparation containing a narcotic substance.”
The report also analyzed the amount of DMT (360mg) and calculated that is 1.3 times the maximum amount allowed for personal use (270mg), according to article 1 of the Decree 11.05.2006 of the Ministry of Health. The next judicial hearing will take place in May 2018.
Santo Daime: A New Arrest at Airport Customs (2016)
In December 2016, another member of the Italian Santo Daime church was arrested by the customs police of Bologna airport for possessing 15 liters of Daime/ayahuasca. The young man is still waiting to see if the process will be formally opened or filed by the Crown Prosecution Service.
Another Arrest at Airport Customs (2017)
On November 20, 2017, a Lithuanian man was arrested for having been found in possession of 2 liters of ayahuasca while transiting through Bari airport to reach his country. There is no more information available about this case.
Updated: March 2018
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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