The Federal Supreme Court (STF) has on its agenda this Thursday (1st) the resumption of the trial that may result in the decriminalization of drug possession for personal consumption. With voting started in 2015 and three votes in favor of some kind of flexibility, the issue has been waiting for eight years to be discussed again in plenary. In this specific case, the ministers are considering an appeal against a decision by the São Paulo Court, which upheld the conviction of a man caught walking with 3 grams (g) of marijuana. He was framed in Article 28 of the Law on Drugs (Law 13.343/06), according to which it is a crime to “acquire, keep, store, transport or bring with you” an illicit drug for personal consumption. Penalties are mild and include warnings about the effects of drugs, community service and other educational measures. At the Supreme Court, however, the controversy is more related to whether the user actually causes some kind of damage to society by consuming an illicit substance, so that such an act can be classified as a crime. Another point under debate is to know the extent to which the State can interfere in the choice made by someone to consume a substance, whether legal or illegal, without violating the principles of intimacy and the right to have a private life. Preliminarily, ministers must also answer the question whether it is up to the Supreme Court to deliberate on the matter, or whether this would be a task only for Congress. The trial is scheduled to be resumed in today’s plenary session, at 2 pm, with the vote of Justice Alexandre de Moraes. He inherited a view (longer analysis time) of the process when he took over the office of Teori Zavascki, who died in 2017. Decriminalization X legalization For the rapporteur of the case at the Supreme Court, Minister Gilmar Mendes, drug user conduct is not a crime. By his vote, passed about eight years ago, the consumption of any substance is a private decision, and any damage caused falls mainly on the health of the user himself. “You are disrespecting the person’s decision to endanger their own health,” he wrote. Criminalizing the behavior of drug users results in stigmatization, which undermines efforts to reduce damage and prevent risks advocated by the National System of Public Policies on Drugs, maintained Mendes. When basing his decision, the rapporteur drew on the German doctrinal tradition and concluded that it is the duty of the Supreme Court to adjust the proportionality of criminal rules 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 legislature would have been disproportionate, extrapolated its attributions, defended the minister, which would justify the intervention of the Court. 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 of the United States. “When one considers, therefore, the displacement of drug policy from the criminal field to that of public health, it is ultimately a matter of combining decriminalization processes with harm reduction and prevention policies, not legalization. pure and simple of certain drugs.” Self-restraint Minister Edson Fachin also voted in this direction, agreeing that drug consumption is part of individual self-determination, which “corresponds to a sphere of privacy, intimacy and freedom immune to State interference”. To say that using drugs is a crime would be a moralistic and paternalistic state attitude, he argued. The minister, however, noted that the topic is “hypercomplex”, with “no perfect answer”. Fachin also stressed that the concrete case on 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 stick only to this drug. Fachin highlighted that, in his opinion, possession of drugs for personal consumption does not, in itself, cause harm to someone else’s property. It is only behaviors derived from this consumption that result in such harm – such as theft to support the addiction. Such derivative conduct, however, is already foreseen as a crime by other criminal provisions, and it is not necessary to criminalize the possession of drugs for personal consumption, concluded the minister. Minister Luís Roberto Barroso followed the same line of reasoning, voting for the decriminalization of the consumption of marijuana exclusively, due to the rights to privacy and privacy guaranteed by the Constitution. Like Mendes, Barroso stressed that this means saying that the State has no power to interfere, much less sanction, over the possession of drugs for personal consumption. Such an assertion, however, does not result in the legalization of the consumption of illicit drugs, not even marijuana, maintained the minister. Barroso admitted that it is inconsistent to decriminalize consumption while the production and distribution of drugs remain crimes. He defended, however, that it will be up to the Legislature, one day, to equate such inconsistency through eventual legalization. The minister also cited examples he saw as successful, such as Portugal and Uruguay. “We are dealing with a problem for which there is neither a legally simple nor a morally cheap solution.” Quantity Going a little further, Barroso also focused his vote on the consequences of criminalizing the possession of small amounts of marijuana for the high rates of incarceration in Brazil, especially of young black men. Along these lines, Barroso insisted that it was necessary to establish a specific amount to distinguish between consumption and trafficking, as leaving this distinction to the discretion of the authorities, whether police or judicial, only exposes the racism present in institutions, he argued. When voting, Barroso said he considers it a priority “to prevent the jails from becoming clogged with poor and primary youth, small drug dealers, who enter with low danger and in prison begin to attend the school of crime, joining gangs and factions. There is a Brazilian genocide of poor and black youth, immersed in the violence of this system.” Using the example of Portugal, a pioneering country that legalized the use of all drugs in 2011, Barroso suggested an amount of up to 25 grams as adequate to differentiate the possession of marijuana for consumption or for trafficking. In the name of coherence, since buying the drug would continue to be a crime, the minister suggested releasing the cultivation of six female marijuana plants. How it is in other countries At least 30 countries in 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 have also adopted a certain degree of liberalization. In part of these countries – such as Argentina, Colombia and Poland, among others – the flexibility for the 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 such as the Czech Republic and Switzerland have specific rules for marijuana, while others, including Estonia, make the possession of any substance more flexible. There are also countries like the Netherlands, where the solution was informal, with an official policy of the police authorities not to act against the consumption of small amounts of drugs. In others, such as Germany and Mexico, it was the accusing bodies, equivalent to the Brazilian Public Prosecutor’s Office, that decided not to open criminal proceedings related to the consumption of small amounts. There are places – such as in 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 others, such as Bolivia and Paraguay, no sanctions are foreseen. As it turns out, the origins of release, as well as the legal minutiae, vary greatly 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.
Agência Brasil
Folha Nobre - Desde 2013 - ©