MODEL OF APPEAL OF FINE FOR POSSESSION OF HASHISH/MARIJUANA

TO THE ATTENTION OF THE SUBDELEGATE OF THE GOVERNMENT

EN .................................................
EXP number ------------------

---------------of legal age, residing at -----------------------------with D.N.I. no.

-------------------Appears before this Administration and, in the best legal
proceeding, SAYS:

Having been notified of the agreement of initiation of the sanctioning procedure

in the above-mentioned file, and within the term legally conferred for this purpose,
I appear in the same and formulate the following:

ALLEGATIONS

FIRST.- I must totally disagree with the qualification given by the

administration to the alleged facts when referring in the agreement of initiation of
the sanctioning procedure to the commission of the following fact: "illicit
possession of toxic or narcotic drug on the day of -----".

Such imputation is arbitrary since there is no element that allows to state that
the possession of such substance (hashish/marijuana) was unlawful, however,
this party provides evidence of the lawfulness of the possession since it is
motivated by its therapeutic use, as stated by the Supreme Court when, in its
decision of February 4, 1987, it states that the legal right protected in the abstract
by the crime against public health is precisely public health endangered by the
consumption of drugs.The Supreme Court, in its decision of February 4, 1987,
states that the legal right protected in the abstract by the crime against public
health is precisely the public health endangered by the consumption of narcotic
drugs for non-scientific or medical purposes.

In spite of the fact that said sentence is prior to the entry into force of the Law
on Citizen Security, which is intended to provide the state security forces and
corps with the necessary means to protect and prevent the general interest, it is
evident that it cannot go unnoticed that precisely in said Law the illicit possession
is sanctioned, thus admitting the existence of a licit possession, as it had already
been made clear by the existing criminal jurisprudence, being said licit
possession intended for medical or scientific purposes.The existence of lawful
possession is therefore admitted, as had already been made clear by the existing
criminal jurisprudence, being such lawful possession the one intended for medical
or scientific purposes.

It cannot be overlooked that the general interest whose protection is sought

through the Public Safety Law has two aspects:

1º.- Public peace. The sanctioning of conduct such as "consumption in public

places, roads, establishments or transport" is intended to protect the public peace
that could be disturbed by the exhibition or ostentation of the consumption of
substances in public places, thus avoiding the inference of a citizen's action on
the conduct of other citizens who are in public places (and in no case can such
sanction be intended to avoid favoring the consumption of substances by third
parties, since such action is already in place in public places).The purpose of this
sanction is to protect the public peace that could be disturbed by the exhibition or
ostentation of the consumption of substances in public places, thus avoiding the
inference of the action of a citizen in the conduct of other citizens who are in
public places (and in no case can it be pretended that such sanction is intended
to avoid favoring consumption by third parties, since such action is already duly
sanctioned in the criminal sphere).

2º.- Public health. The sanction of "illicit possession, even if not intended for
trafficking, of toxic drugs, narcotic drugs or psychotropic substances", being a
conduct only known by the possessor himself and which does not imply exhibition
or ostentation of the possession of such substances (since if there is exhibition,
the sanction will be determined by having consumed or flaunted such substance
in public places), comes to protect public health, but in this case the public health
of the possessor.(inasmuch as if there is exhibition the sanction will be
determined by having consumed or made ostentation of such substance in public
places), it comes to protect public health, but in this case the public health of the
possessor himself in an act of what is known as "state of the art".(it is evident that
only the public health of the consumer himself can be protected, since in the case
of seeking the protection of the public health of third parties we would again be
faced with an inference in the field of criminal protection), losing all its
meaning.The alleged protection of the public health of the possessor himself
loses all meaning when the possession is intended precisely for scientific,
medical or therapeutic use aimed at improving the health of the possessor, the
unlawfulness of the possession disappearing and becoming then a perfectly
lawful possession.

In the present case we are dealing with a person who neither consumed in
public nor flaunted the toxic substance, possessing it licitly for therapeutic
purposes as evidenced by documents, so that the intervention and seizure of the
substance in the present proceedings has no legal support.Therefore, the
intervention and seizure of the substance carried out in the present proceedings
lacks legal support, and the return of the substance for therapeutic purposes and
for the protection of the health of the undersigned is mandatory.

SECOND. The Supreme Court has recalled (sentences of December 16, 1986
and March 30, 1998) that one of the cardinal principles of contemporary Criminal
Law - substantive and procedural - is that which proclaims the presumption of
innocence of any person accused of an offense until his guilt has been legally
declared, all according to the definition offered by the European Convention for
the Protection of Human Rights and Freedoms.This is according to the definition
offered by the European Convention for the Protection of Human Rights and
Fundamental Freedoms. This principle, incorporated in a preferential place in Art.
24 EC, produces an immediate procedural consequence which consists of
shifting the burden of proof to the accuser and, in the case of the sanctioning
power, to the Administration, since, as the Constitutional Court has repeatedly
pointed out, although Article 24 of the Spanish Constitution, the burden of proof is
shifted to the Administration. does not expressly refer to the exercise of the
sanctioning power of the administration, the procedural guarantees established in
said precept are applicable to administrative sanctioning procedures. This
implies, naturally, that in order to impose a sanction, it will be necessary to prove
the factual situation to which the legal system links the legal consequence that
the Administration intends to impose. The presumption of legality of the
administrative act shifts the burden of action to the administrative party to avoid
the production of the effects of the figure of the consented act, but, once action
has been taken, i.e., once the sanction or sanction agreement is opposed or
appealed, the burden of proof must be submitted to the general rules which, in
sanctioning matters, are previously stated (judgment of April 1989).The burden of
proof must be subjected to the general rules which, in sanctioning matters, are
those previously set forth (judgment of April 21, 1989); and, if the undersigned
opposes the initiation of the sanctioning proceeding, said proceeding is obliged to
comply with the provisions of Art. 24 of the EC in terms of due process and
presumption of innocence.

On the other hand, it is evident that there is a public qualification of the facts
made by persons whose testimony enjoys a presumption of veracity, and a
distinction must be made with respect to the scope of the value of the same
between the testimony offered by the civil guard agents on facts whose fixation is
predominantly assimilated by sensory means and on those whose representation
is reached by means of presumptions or inference judgments (judgments of May
7 and 11, 1992).In this regard, the Court has differentiated with respect to the
scope of the value of the testimonies between the testimony offered by the civil
guard agents on facts whose fixation is predominantly assimilated by sensory
means and those whose representation is reached through presumptions or
inference judgments (sentences of May 7 and 11, 1992), presumptions or
inference judgments that must be submitted, in any case, to the weighed
judgment obtained from the contrast of said testimonies with the other concurrent
elements of knowledge (sentence of October 8, 1990, and sentence 76/1990),
which will imply the presumption of veracity of the aforementioned testimonies
with respect to the presumptions or judgments of inference precisely because of
the existence of concurrent subjective elements.

Thus, although there would be a presumption of veracity in the manifestations

of the agents as to the existence of the substance inside the vehicle -since this
could be directly and sensorially appreciated-, the qualification of such
possession as illicit would be reached by means of presumptions or inference
judgments on which such presumption would no longer be applicable, and the
provisions of Article 24 of the Spanish Constitution would be applicable.The
qualification of such possession as illicit would be reached through presumptions
or judgments of inference on which such presumption would no longer be
applicable, and the provisions of Article 24 of the Spanish Constitution should
prevail at that moment. This is because Article 25.1 of the Law on Citizen
Security sanctions illicit possession, not mere possession, and it will be up to the
accuser to prove the unlawfulness of such possession, without the administration
having carried out any activity aimed at proving such unlawfulness and without it
being possible, precisely by application of Article 25.1 of the Law on Citizen
Security, to prove such unlawfulness. 24 of the Spanish Constitution, the
possibility of granting a presumption of illicit possession to any possession,
especially when, as in the present case, the possession is due to therapeutic
reasons.

It is a fundamental right of all persons to have access to all those treatments

that are within their reach to alleviate physical or psychological conditions, without
it being understood in any case that it is in the general interest to limit such
access, as would occur in the case of understanding as illicit the possession of a
substance whose therapeutic use is recognized and accepted.

THIRD. Article 25.1 of the Law on Citizen Security states that the consumption
in places, roads, establishments or public transport, as well as the illicit
possession, even if not intended for trafficking, of toxic drugs, narcotics or
psychotropic substances, as long as they do not constitute a criminal offense, as
well as the abandonment in the mentioned places, roads, establishments or
public transport, as well as the illicit possession, even if not intended for
trafficking, of toxic drugs, narcotics or psychotropic substances.Article 25.1 of the
Public Safety Law states that consumption in places, roads, establishments or
public transport, as well as the illicit possession, even if not intended for
trafficking, of toxic drugs, narcotics or psychotropic substances, provided that
they do not constitute a criminal offense, as well as the abandonment in the
aforementioned places of tools or instruments used for their consumption,
constitute serious offenses. For its part, Article 20 of the aforementioned Law
provides in its point 1 that "the Agents of the Security Forces and Corps may
require, in the exercise of their functions of investigation or prevention, the
identification of persons and carry out the pertinent verifications in the public
thoroughfare or in the place where the request has been made, provided that the
knowledge of the identity of the persons required is necessary for the exercise of
the functions of security protection entrusted to the agents by this Law.In the
public highway or in the place where the request has been made, provided that
knowledge of the identity of the persons requested is necessary for the exercise
of the security protection functions entrusted to the agents by the present Law
and the Organic Law of Security Forces and Corps".

However, in the case in question, it has gone beyond the provisions of the
aforementioned precept since, according to the complaint filed by the Civil Guard,
the accused was not using drugs, nor was he even carrying the small amount of
the substance that was seized, let alone flaunting it; on the contrary, the agents
should have searched the occupants of the vehicle and searched it in order to
find it.On the contrary, the agents should have searched the occupants of the
vehicle and searched it to find the said substance in the front glove compartment
of the car.

Even the Supreme Court, in its ruling of 24-2-97, has considered the legitimacy
of a body search to be debatable, as subjection to police rules of surveillance and
investigation, in defense of legality, order and public safety, adding that it is an
act "in which arbitrariness and proportionality will be the defining factors of the
question...". And in this specific case there is a total arbitrariness in that the arrest
of the vehicle was carried out just because, without any indication or reason to
believe that an illegal act of any kind was being committed, not even a traffic
infraction, there being a total lack of proportionality between the service carried
out by the couple of the Civil Guard and the "search" made of the vehicle
occupied as a passenger by the undersigned and the occupants
themselves.There was a total lack of proportionality between the service carried
out by the Civil Guard couple and the "search" of the vehicle occupied by the
undersigned as a passenger and the occupants themselves without any apparent
cause to justify it.

FOURTH.- That on the date and place of the facts, the local Patron Saint's
Festival was being held, where more than 200 people were present, most of them
young people who, like him, were attending a musical concert with the same
"suspicious" attitude. That there was no evidence whatsoever to justify the search
-or frisk- carried out by the police officers, which had no other motive or
justification than the suspicions aroused by the clothing and appearance of the
person sanctioned, reasons which by their very discriminatory nature
demonstrate in themselves the unconstitutionality and illegality of such searches
(in the absence of a "criminal act, causing serious social alarm", it is not intended
to "discover and arrest" the perpetrators).The discriminatory nature of these
reasons in itself demonstrates the unconstitutionality and illegality of these
searches (in the absence of a "criminal act, causing serious social alarm", there is
no intention to "discover and arrest" the perpetrators). (Explain the actual
circumstances if necessary and favorable to the case).

FIFTH.- I want to emphasize that at no time I resisted the requirements of the

Police and that I was carrying the substance because I considered that I was not
committing any infraction because I was going to my home where I intended to
consume it since I am a regular consumer of this substance. Knowing that the
consumption of drugs that do not cause serious damage to health is not a crime, I
understood that I could circulate with it on the street, since I had just bought it and
was on my way home when I was stopped by the police for identification. Since I
understand that, according to reiterated Jurisprudence of our Supreme Court, the
acts that are part of self-consumption (among which is taking it to my home) are
atypical and, therefore, unpunished, and since such impunity persists even after
the enactment of Organic Law 1/92 of February 21, 1992 on the protection of
public safety, I cannot understand the existence of this sanctioning procedure,
since I do not understand that self-consumption is licit but possession for self-
consumption is not.I cannot understand the existence of this sanctioning
procedure, since I do not understand that self-consumption is licit but possession
for said self-consumption is not, and in the present case the principle of " in dubio
pro libertate" and, since the mere possession does not affect a specific legal right,
the incrimination of my conduct is not justified, since it is not possible to produce
a limitation to my individual freedom. In other words, in the freedom-health
dialectic, the legislator sacrifices the first right or legal good in favor of the
second. Therefore, the possible damage to health caused by the drug must be
significant. In those cases in which it has not been scientifically proven that the
consumption of a substance causes harm, the principle of "in dubio pro libertate"
and that of the weighing of goods requires the non-incrimination of conduct such
as this.

This party intends to make use of the following MEANS OF PROOF that it
proposes in this act:

- Witness with examination of the following witnesses:

- D. -----------------domiciled at ----------------------------------------who was driving

the vehicle in which the substance was found and who was also subjected to
searches and frisks.

- D. -----------------psychologist who has been treating the undersigned for the

purpose of
The therapeutic use of the substance must be proven.

- Documentary evidence consisting of reproducing the documents attached to

this letter and that prove the therapeutic use of the substance involved, consisting
of the report issued by the psychologist Mr. -------------------------------------------- y
various published research articles, expressly challenging the document
containing the challenged expert opinion that gave rise to the present disciplinary
proceedings.

In view of the foregoing to V.I. I REQUEST you to admit this document and the
accompanying documents and copies, and to consider that the process has been
completed in due time and form and that the allegations contained in the same
have been made, as well as the means of evidence detailed in the same, and
after the pertinent formalities, to issue a decision in the appropriate date by which
it is agreed that no sanction should be imposed, and to return the same to the
Company. and as the means of evidence detailed therein have been proposed,
agreeing to their practice and, after the pertinent proceedings, issue a resolution
whereby it is agreed not to impose any sanction whatsoever and return to the
undersigned the substance improperly seized.

All this being of Justice that I ask in -------------------------, a fro

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