STF resumes judgment that can release possession of drugs for personal use

The Federal Supreme Court (STF) is due to resume this Wednesday (24th), after an interval of almost eight years, a judgment to define whether possession of drugs for personal consumption is a criminal offense. The Court will decide whether the penalties provided for those who possess drugs for personal use, which are already mild, should be considered unconstitutional and cease to apply, which could overturn the last legal constraint on the purchase of illicit substances.

Currently, detention for mere possession of drugs does not exist in Brazil. The penalties for this infraction, typified in Article 28 of the 2006 Anti-Drug Law, are providing services to the community, warning about the effects of drugs and attending an educational course.

The trial of the matter was interrupted in 2015, with a request for a view from the then Minister Teori Zavascki, who died in January 2017. Alexandre de Moraes inherited his vacancy and, in 2019, released the process to be ruled.

Three ministers have already voted in 2015, all in favor of overturning the criminal classification of drug possession. There is, however, a divergence about the types of drugs to be released. Gilmar Mendes, rapporteur for the case, considered that the change should apply to all drugs, while Edson Fachin and Luís Roberto Barroso believed that it should be restricted to the case of marijuana.

For Rodrigo Chemim, doctor in State Law and professor of Criminal Procedural Law, the STF is usurping the functions of the Legislature by trying to decriminalize drug possession, since there is nothing in Article 28 of the Anti-Drug Law that justifies a reading of unconstitutionality. “Personally, I’m in favor of decriminalizing drug possession, but it’s not up to the Supreme Court to decide on that. But, unfortunately, the Supreme Court has been making decisions on all kinds of issues lately.”

The Court extrapolates its functions even further, according to him, by raising a discussion about which types of drugs could be decriminalized. This type of differentiation, highlights Chemim, is not established by the Anti-Drug Law, and Congress would be the only legitimate body to deliberate on it.

On Monday (22), in a statement in the Senate Plenary, Senator Eduardo Girão (Podemos-CE) criticized the judicialization of the case and the lack of reaction from parliamentarians. “It is very sad to see, participating in a Senate that is kneeling before the Federal Supreme Court doing the work that is ours. And there are few voices here that reverberate that it is wrong”, he said.

Article 28 is already little applied; end of legal constraint could increase drug use

The process that led to the judgment of the STF, gaining general repercussions, refers to the case of a prisoner who was caught, in 2009, with marijuana for personal use in a jail in Diadema (SP). He was sentenced to community service for the incident.

In practice, the result of a decision to end the punishments provided for drug possession would be the end of any embarrassment from a legal point of view to the common user. Today, although he is not arrested, anyone who falls under Article 28 no longer has a clean criminal record.

For lawyer Dário Júnior, PhD in Procedural Law from PUC Minas, this new interpretation of the law would be privileged, especially drug users from the upper middle class, who “will no longer be registered, will be embarrassed, and will continue with the registration clean”.

“The effect it will have is not to benefit the poor and oppressed”, he ironizes. “In practice, what will happen is that they will leave more freedom for these upper middle class users. This is the main focus. They will not have a criminal record. The embarrassment they had was this: being taken to a police station, being booked and, because of that filing, losing the possibility, for example, of taking a public tender later on.”

According to the criminal lawyer João Rezende, the cases in which article 28 is currently applied boil down, for the most part, to flagrant purchases by the user with dealers. “The circumstances are almost always very similar: the police know where there is a [de venda de drogas] and they keep bellowing – sometimes they film, sometimes they just watch. When they verify that the transaction is taking place, the seller falls under article 33 [que se refere ao tráfico]and the person who is buying for his own consumption falls under article 28. [artigo] 28 will be forwarded to these sanctions [de prestação de serviços e educação sobre drogas]and that of 33 will face criminal action, with instruction, with proof, testimonials and conviction.”

In most of these cases, the only real target of the police is the drug dealer, but, as the buyer is involved in the same act, he is also penalized. According to Rezende, other common situations in which the possessor of illicit substances is charged are parties where the participants are reviewed and steps taken against major crimes, such as car thefts in which the thief is caught with drugs.

Rezende believes that an eventual decision by the STF overturning the current penalties would encourage drug consumption. “Today [o usuário] there is still a headache, because the person who usually has never had contact with the police station environment is embarrassed to be in this environment. There is also the issue of drawing up the circumstantial term of occurrence, the referral so that the person receives the warning or goes to attend a ‘little lecture’… There is this embarrassment. Having nothing in that direction, having a carte blanche on the part of the State in relation to this conduct, I see it as a stimulus, yes”, he says.

For Dário Júnior, the current law deals with the issue proportionally, giving a light penalty to people who, even if in a small way, harmed the community by promoting the drug market. With the change that the STF can promote, the law would ignore this damage.

“Posting has always been considered harmful, because it implies that the person circulates with the drug, eventually losing that drug, someone finding it, the person delivering that drug to a friend, sharing it… A person who goes, for example, to the mouth of smoking to get the drug is encouraging the existence of a drug den, it is promoting supply. My opinion is that the situation as it is today already addresses this issue well, because it does not provide for simple arrest, detention, or imprisonment”, he comments. .