Decriminalization of possession and personal use of cannabis

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By CLAUDIA DE LUCCA MANO*

The discomfort on the part of the ministers when analyzing the issue was evident: they made it clear that no Court decision would deal with the legalization of marijuana, but rather with the decriminalization of the user

This past Tuesday (June 25), the Federal Supreme Court concluded its judgment on the issue of general repercussion that deals with the possession, for use, of small quantities of cannabis. The ministers focused on defining whether the conduct of possession for use should be classified under criminal law, whether article 28 of the Drug Law is truly constitutional, and also dealing with a quantity that indicates that the subject is a user rather than a trafficker.

Since the creation of the drug law in 2006, there has been an increase in arrests and convictions for trafficking, given that the amount of drugs tolerated by police officers, the Public Prosecutor's Office and judges varies from individual to individual due to social status, education , place of residence and skin color. As a result, a white person could be considered a mere user, while a black person with the same amount of drugs is classified as a drug dealer.

In 2023, minister Alexandre de Moraes delivered a controversial but coherent vote, looking at the social injustices that permeate the application of drug law by the Brazilian judiciary. He innovated by suggesting that it was not a crime to have quantities of 60 grams of cannabis, or six female plants, on one's person.

The resumed trial had a score of 5x3 in favor of decriminalization since June 20th. Ministers Cristiano Zanin, André Mendonça and Dias Toffoli voted against the thesis. In the section on the 25th, Dias Toffoli clarified his vote and categorically stated that the conduct is not criminal, because it is not punished with imprisonment, a requirement that characterizes criminal offenses in Brazilian law. At this point he placed himself as the 6th vote in favor, and the press was already reporting the majority.

Luis Fux then voted in the opposite direction, mentioning that scientific disagreement takes away his peace as a magistrate. Luis Fux declares himself deeply uncomfortable and unprepared to define quantities, which reminded me of Gloria Pires' famous phrase when commenting on the Oscars “I'm not capable of giving an opinion”.

In fact, the discomfort on the part of the ministers when analyzing the topic was quite evident, which has a strong echo in public opinion and which provokes reactions from the Legislature (PEC 45, for example). The ministers made it clear that no Court decision would deal with the legalization of marijuana, but rather with the decriminalization of the user, to classify it as an illicit act of an administrative nature, not a criminal one.

Then it was Carmem Lúcia's turn. It is quite common for women to try too hard to prove their points, going further than their male colleagues in work situations. Because Carmem Lúcia shined by doing the opposite, the minister casts her vote in a quick, didactic and surgical way. Without drama, she delimited the limits of the cause, recalling that the general repercussion reaches situations different from that of the original case or paradigm case: someone was found with 3g of marijuana in the prison system. As Luís Fux had repeatedly highlighted in his vote, the guy was in prison, serving an 11-year sentence for robbery.

Carmem Lúcia said: “We are not judging the previous robbery crime, from the paradigm case. We are extrapolating to reach the whole of society. This is the repercussion.” He did not ask for bows, and said that it is not only about the protection of the individual's intimacy and private life, but also about the constitutional principle of equality, since social injustices end up determining the fate of whites and blacks, rich and poor. He only voted for the unconstitutionality of article 28, but without removing the text from the legal system, but rather to give it an interpretation in accordance with the Federal Constitution.

Thus, he voted with Edson Fachin in favor of decriminalization, and with Gilmar Mendes and Alexandre de Moraes and for the definition of paradigm quantities to guide the justice system. Cármem's opera, this time, had a happy ending.

This Wednesday (June 26th) the proclamation of the trial resulted in a majority declaring article 28 of the Drug Law unconstitutional, and the acquittal of the defendant (in the original concrete case, paradigm). With general repercussion, it was decided that carrying and using 'cannabis sativa” is an illegal conduct, but of an administrative nature and not a criminal offense.

When caught with a quantity compatible with personal use, the subject will have the substance seized, a detailed statement of occurrence will be drawn up, and the case will be forwarded to the police authority, and then to the special criminal courts, until jurisdiction is defined by the National Council of Justice, without arrest in the act.

The amount of marijuana to presume that someone is a user was set at 40g, but this is not an absolute criterion. To rule out the presumption, the police authority cannot adopt arbitrary subjective criteria (e.g. suspicious attitude, anonymous report, attempted escape).

You must analyze the set of evidence, such as the presence of precision scales, notes with customer lists, electronic sales messages, the finding of transport with the intention of delivery, the presence of several smaller packages, elements that would indicate the intention of sale, and imposes the prosecution of that subject for trafficking.

The judgment on the issue of general repercussion is a major historic step, in the fight for patients' access to medicinal cannabis, in activism for citizens' individual rights for equality, legal security and fair treatment, the right to decide about their own private life and have respecting their privacy, with social justice.

Despite the progress, Brazil still awaits better regulation of medicinal cannabis by Anvisa. The Agency's position is fundamental in determining the direction on topics such as hemp planting, adoption and other cannabis substances, not only as medicine, but also as food, cosmetics and animal health.

*Claudia de Lucca Mano is a lawyer.

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