STJ reverses decisions and grants authorizations for cannabis cultivation

The Superior Court of Justice (STJ) granted injunctions to ensure that two people, with medical needs, can cultivate Cannabis Sativa without the risk of any criminal sanction from the authorities. The approval was presented by the vice-president of the STJ, minister OG Fernandes.

With the decision, the minister disregards the arguments being discussed in Congress about the risks to health and public safety in allowing the cultivation of Cannabis in Brazil. Among them are the lack of scientific evidence on the medicinal benefits of products with marijuana elements (with the exception of some evidence for certain illnesses), the difficulty in monitoring clandestine plantations by the public authorities, among others.

According to the appeals submitted to the STJ, the two people reported that they have health problems treated with substances extracted from Cannabis, such as generalized anxiety disorder, panic disorder, chronic pain and attention disorders. They presented medical reports to prove the reported health conditions, in addition to authorization from the National Health Surveillance Agency (Anvisa) for the exceptional import of medicinal products derived from Cannabis.

Patients using Cannabis still reported difficulties in obtaining treatment, due to the cost of the “medicine” being high and not being available on the market.

All requests for Cannabis cultivation were rejected by the Court of Justice of São Paulo and the Court of Justice of Minas Gerais, which judged the cases, and understood that authorization for planting and cultivation would depend on technical analysis whose competence would not fall to the Court, but rather to Anvisa.

In 2019, Anvisa authorized the import of cannabidiol and THC extracts, removed from cannabis, for the manufacture of products in Brazil. At the time, the agency defined that these compounds would be marked with a black stripe due to the risk of dependence, increased tolerance (need to ingest increasingly larger quantities to have the minimum desired effect) and intoxication.

Precedents

When overturning the court injunctions, Minister Og Fernandes pointed out that interested parties presented documents proving health problems and “evidence that traditional medical treatments did not achieve success similar to objective results such as the use of cannabidiol oil”.

Fernandes also used STJ precedents to defend the conduct of cultivating the plant for medicinal purposes, which is not considered a crime, due to the lack of regulation provided for in article 2, sole paragraph, of Law 11,343/2006 (Drugs Law). With this interpretation, he pointed out, several rulings have already granted safe conduct to allow people with certain health problems to cultivate and manipulate the Cannabis.

As a consequence, the minister recognized the legal viability of the requests and judged it to be more prudent to protect the right to health of those involved until the judgment on the merits of the ordinary appeals by the competent groups at the STJ.

STJ and pro-Cannabis cultivation decisions

The application of precedents granting habeas corpus to patients who need to cultivate cannabis sativa for the treatment of different diseases has become frequent, through monocratic decisions in the STJ.

One of the decisions on which Minister Og Fernandes was based was from March last year, when the STJ assumed the power to decide on the release of cannabis plantations in the country, in an action filed by the company DNA Soluções em Biotecnologia, interested in the commercial use of cannabis. plant.

To assume the power to decide on the matter, the court followed up with a proposal for an Incident of Assumption of Jurisdiction (IAC). An IAC is the declaration that a certain topic, relevant and with social repercussions, would require analysis by the STJ panel to support decisions in other courts in the country.

In June last year, the Third Section of the STJ, by majority vote, granted safe conduct to ensure that patients do not suffer criminal sanctions for the domestic cultivation of cannabis sativa intended for the extraction of oil for medicinal purposes.

When analyzing the STJ’s decision, lawyers and political scientists fear interference by the Judiciary in issues that should be defined and discussed by the National Congress. Instead of respecting the progress of the Legislature, which can maintain the prohibition of Cannabis cultivation based on arguments of reasonableness and public safety, the Judiciary forces the Legislature to decide or itself tries to change the law during trials, without the power to that.