STF resumes judgment on decriminalization of drug possession

The Federal Supreme Court (STF) has on its agenda this Wednesday (6) the resumption of the trial that could result in the decriminalization of drug possession for personal consumption. With voting started in 2015 and a score of 5 to 1 in favor of some type of flexibility, the issue has been waiting for 9 years for an outcome.

In this specific case, the ministers are judging an appeal against a decision by the São Paulo Court, which upheld the conviction of a man caught with 3 grams of marijuana. It was included in Article 28 of the Drug Law (Law 13,343/06), according to which anyone who “acquires, stores, stores, transports or brings with them” an illicit drug for personal consumption is guilty of a crime.

The penalties are mild and include warning about the effects of drugs, provision of community services and other educational measures. In the Supreme Court, however, the controversy involves whether the user actually causes some type of harm to society when consuming an illicit substance, so that such an act can be classified as a crime.

Another point under debate is knowing to what extent the State can interfere in someone’s choice to consume a substance, whether legal or illicit, without violating the principles of intimacy and the right to a private life. Preliminarily, the ministers also answer the question whether it is up to the Supreme Court to deliberate on the matter, or whether this would be the task of Congress alone.

The trial is the first item on the plenary agenda this Wednesday, in the session scheduled for 2 pm. The case will be resumed with the vote of Minister André Mendonça, who requested a review (more time for analysis) in the resumption of the previous trial, in August last year.

The appeal being judged has general repercussions. This means that, in the end, the Supreme Court plenary must establish a thesis that will serve as a parameter for all similar cases in Justice.

Decriminalization

For the case’s rapporteur, Minister Gilmar Mendes, the drug user’s conduct is not a crime. According to his vote, given around 8 years ago, the consumption of any substance is a private decision, and any damage caused falls mainly on the user’s own health. “We are disrespecting the person’s decision to put their own health at risk,” he argues.

Gilmar Mendes maintains that criminalizing the conduct of drug users results in stigmatization, which undermines harm reduction and risk prevention efforts recommended by the National System of Public Policy on Drugs.

When justifying his decision, the rapporteur drew on the German doctrinal tradition, and concluded that it was the Supreme Court’s duty to adjust the proportionality of criminal norms that deal with abstract damages, such as the damage to public health allegedly committed by drug users. In this case, by criminalizing the conduct, the legislator would have been disproportionate, exceeding his powers, said the minister, which would justify the Court’s intervention.

The rapporteur also endeavored to argue the difference between decriminalizing consumption and legalizing illicit drugs. Legalizing, Mendes stressed, is a legislative process that authorizes and regulates consumption, along the lines of what was done in countries like Uruguay and in some states in the United States.

“When we consider, therefore, the displacement of drug policy from the criminal field to that of public health, it is ultimately a question of combining decriminalization processes with harm reduction and prevention policies, and not legalization pure and simple use of certain drugs”, he states.

In the most recent resumption of the case, the rapporteur decided to backtrack a little on his vote, in order to decriminalize possession only in relation to marijuana.

Self-restraint

Minister Edson Fachin also voted in line with Gilmar Mendes, agreeing that drug consumption is part of individual self-determination, which “corresponds to a sphere of privacy, intimacy and freedom immune to State interference”.

Saying that using drugs is a crime would be a moralistic and paternalistic state attitude, Fachin argued.

The minister, however, highlighted that the topic is “hyper complex”, with “an absence of a perfect answer”. Fachin also stressed that the specific case under trial deals with the possession of marijuana, and that, due to the duty of self-restraint, the Supreme Court’s decision to decriminalize the possession of drugs for personal consumption should only be limited to that drug.

Fachin highlighted that, in his opinion, possession of drugs for personal consumption does not, in itself, cause harm to the property of others. “It is only conduct derived from this consumption that results in such damage – such as theft to support the addiction. Such derivative conduct, however, is already considered a crime by other criminal provisions, and it is not necessary to criminalize the possession of drugs for personal consumption”, concluded the minister in his vote.

Minister Luís Roberto Barroso, president of the Court, followed the same line of reasoning, voting for the decriminalization of marijuana consumption exclusively, due to the rights to intimacy and private life guaranteed by the Constitution.

Like Gilmar Mendes, Barroso stressed that the measure means that the State has no power to interfere, or much less to punish, the possession of drugs for personal consumption. “Such a statement, however, does not result in the legalization of the consumption of illicit drugs, not even marijuana”, maintained the minister.

Minister Barroso admitted that it is inconsistent to decriminalize consumption at the same time that the production and distribution of drugs remain crimes. He argued, however, that it will be up to the Legislature, one day, to resolve such inconsistency through eventual legalization. The minister also cited examples, which for him are successful, such as those from Portugal and Uruguay.

“We are dealing with a problem for which there is no legally simple nor morally cheap solution,” he said.

Amount

Going a little further, Barroso also focused his vote on the consequences of the criminalization of possession of small amounts of marijuana for the high rates of incarceration in Brazil, especially for young black people.

Along these lines, Barroso insisted that it was necessary to establish a specific quantity to distinguish the user from the drug dealer, “as leaving this distinction to the discretion of the authorities, whether police or judicial, only exposes the racism present in the institutions”, he argued.

In his vote, Barroso said that he considers it a priority to “prevent jails from becoming clogged with poor, primary school youth, small drug dealers, who enter with low levels of danger and in prison begin to attend the school of crime, joining gangs and factions. “There is a Brazilian genocide of poor and black young people, immersed in the violence of this system,” he warned.

Using the example of Portugal, a pioneering country that legalized the consumption of all drugs in 2011, Barroso suggested a quantity of up to 25 grams as adequate to differentiate possession of marijuana for consumption or for trafficking. In the name of consistency, since buying the drug would continue to be a crime, the minister suggested allowing the cultivation of six female marijuana plants.

This understanding was reinforced in the vote of Minister Alexandre de Moraes, who brought data from the Brazilian Jurimetry Association, according to which 25% of prisoners in the country are responsible for the crime of drug trafficking. He maintained that most of these prisoners could be classified as users, if there were objective criteria. As there is none, young and black people generally go to jail, he said.

“The STF has a duty to demand that the law be applied identically to everyone, regardless of ethnicity, social class, income or age”, argued Moraes. To differentiate personal consumption from marijuana trafficking, the minister suggests carrying a quantity of 25g to 60g.

In August last year, a few days before retiring, minister Rosa Weber voted with the rapporteur to decriminalize marijuana possession.

“I think the STF can help with this solution, without prejudice to Congress’s actions. The person who decriminalized it for the user was Congress, in 2006. If it only maintains criminalization, the Supreme Court would take a step towards decriminalizing when it comes to personal use”, said Weber.

Divergence

The only one to disagree, so far, was minister Cristiano Zanin. The minister argues that decriminalization presents “legal problems” and could worsen the fight against drugs.

“I have no doubt that drug users are victims of trafficking and criminal organizations for the illicit exploitation of these substances. The decriminalization, even if partial, of drugs, could further contribute to this public health problem,” he stated.

Despite speaking out against decriminalization, Zanin voted to set the quantity of 25 grams of marijuana or six female cannabis plants to configure the situation of personal use in police seizures.

Situation in the world

At least 38 countries around the world have promoted some type of permission for the possession and consumption of drugs. In addition to Portugal, Uruguay and some North American states, countries as diverse as Kyrgyzstan, Spain and South Africa also adopted a certain degree of liberalization.

One of the most recent moves towards drug decriminalization occurred in Germany, where parliament approved in February the decriminalization of recreational marijuana use, although the purchase of the drug is subject to strict rules.

In some of these countries – such as Argentina, Colombia and Poland – the flexibility for possession and consumption of drugs occurred by court decision. In others – such as in US states, Portugal and Uruguay – it was the Legislature that acted to legalize and establish rules for the possession and use of illicit drugs.

Countries like the Czech Republic and Switzerland have specific rules for marijuana, while others, like Estonia, make possession of any substance more flexible.

In countries like the Netherlands, the solution was procedural, with it being an official policy of police and prosecutorial authorities not to act against the consumption of small quantities of drugs.

There are places – such as some states in Australia and Italy – where being caught carrying drugs, despite not being a crime, results in administrative sanctions, such as fines and confiscation of the material. In Bolivia and Paraguay, there are no sanctions foreseen.

The origins of the release, as well as the legal minutiae, vary widely around the world. The current state of decriminalization is periodically compiled by the Talking Drugs project, maintained by the British non-governmental organization Release in partnership with the International Drug Policy Consortium, an international consortium formed by 194 entities, in 75 countries, dedicated to the topic of drugs.

read more

Legalization of abortion returns to public debate with judgment in the STF

Research points to a technical tie between those in favor and against the legalization of abortion in Brazil

Sâmia Bomfim asks the Chamber to rescue the commission for the legalization of marijuana