STF: Actions question military personnel punished for marijuana use – 06/08/2023 – Power

The smell of marijuana coming from an Army barracks mobilized a barracks in São Leopoldo (RS), after 11 pm, to the point that superiors examined the soldiers’ hands to find out who was secretly smoking.

The episode, which took place in December 2021, led to two soldiers being accused by the Military Public Prosecutor’s Office of a sentence that could reach five years in prison, which was questioned by the Public Defender’s Office of the Union to the STF (Federal Supreme Court) in April this year.

Every year, dozens of similar requests from the Ombudsman’s Office come to the Supreme Court in favor of soldiers and former soldiers who possessed or consumed some type of drug in a military area and ended up accused or severely punished.

From February to April of this year alone, eight requests for habeas corpus related to the subject were presented in court.

In the Military Penal Code of 1944, the use and possession of narcotics or substances with a similar effect are in the same article that defines trafficking.

Although the Supreme Court intends to return later this month to analyze the decriminalization of drugs for personal consumption, the issue of the military should not be addressed; and the judgment of consumer actions in barracks must continue to be treated in the same way.

In the case of São Leopoldo, for example, after the soldiers’ hands were smelled, the superiors became suspicious of two of them, who ended up admitting that they had smoked marijuana.

There was then a magazine in the barracks. They didn’t find anything in their closet, but they did find marijuana in a pen tube under a bed that didn’t belong to anyone.

In the first instance, the judge in the case considered that there was no proof that the substance found was theirs and rejected the complaint.

However, the Military Public Prosecutor’s Office appealed to the STM (Superior Military Court), which, contrary to civil ministers, decided that the complaint should be accepted and that the case against the two soldiers would continue to be processed.

Three civil ministers voted against continuity, pointing out that there was no materiality (proof of existence) of the crime, due to the lack of a link between the seized drug and its use. But they were defeated.

At the STF, the request for habeas corpus also ended up not being accepted, in a decision by Minister Luiz Fux. He justified that he should grant habeas corpus only if the decision of the STM was teratological (absurd) or if there was flagrant illegality or abuse of power.

Then, the minister quoted an excerpt from the STM’s reasoning, which he considered correct: “It is clear that the conduct of both military personnel –who are confessed criminals–, that is, of using a narcotic substance inside the barracks, during service, contrary to what the judge of first instance understood, is a crime”.

“Even if article 290 of the CPM [Código Penal Militar] did not incriminate the use, as maintained by the magistrate a quo —which, permissive venia, is not true—, even so, the conduct of these soldiers could be framed in the modalities of having in deposit, transporting, bringing with them [a substância]”, continues the decision.

“There is no way for both military personnel to consume or make use of said drug in the vicinity of the unit where they were stationed, for example, without first entering the site under the domain of the Military Administration carrying the banned substance.”

Court ministers did not always have the same understanding in relation to these cases. Federal public defender Gustavo de Almeida Ribeiro, designated to act before the STF, says that only recently did the court unify the current understanding.

A few years ago, he says, some ministers recognized the principle of insignificance in these cases and granted habeas corpus.

He claims that one of the arguments for prohibiting drug use in military spaces, even if not in barracks, is the use of weapons by the military.

“But if that were the criterion, it should be applied in the military code to civil police and federal police, but that is not the criterion”, says Ribeiro.

In 2020, the STF even applied a one-year sentence in an open regime to a civilian for having smoked marijuana in the area of ​​​​the School of Aeronautics Specialists, in Guaratinguetá (SP).

According to the complaint by the Military Public Prosecutor’s Office, marijuana, a bottle of oil with the inscription “Pure CDB Cil” and silk to roll tobacco were found in his vehicle.

He was there for his nephew’s graduation and, while waiting to leave, he decided to light up a joint.

The trial of civilians by the Military Justice is the subject of questions from the PGR (Attorney General of the Republic) to the Supreme Court since 2013, and is under the report of Minister Gilmar Mendes. The case was never tried.

The PGR asks that it be defined that the Military Justice should not judge civilians in peacetime and that any crimes should be submitted to common, federal or state Justice.

The competence for military courts to judge civilians was expanded during the military dictatorship. Previously, they could only prosecute civilians in cases such as attacks on external security or military institutions. The PGR agrees that civilians should be tried only in cases that reach the military institution.

The process related to the decriminalization of drugs that will be judged in the Supreme Court is the Public Defender of São Paulo. He questions the Drug Law, which makes it a crime to acquire, store and transport narcotics for consumption.

The case has been stalled since 2015 in court. So far, three ministers have voted in favor of decriminalization. Rapporteur Gilmar Mendes was in favor of decriminalizing the possession of all drugs, while Luís Roberto Barroso and Edson Fachin restricted their votes to marijuana.

Barroso was the only one who defended the creation of quantitative parameters to characterize the user. In his vote, the minister suggested a limit of 25 grams of marijuana or the cultivation of up to six female plants for personal use.