The Federal Supreme Court (STF) suspended the judgment that deals with the decriminalization of marijuana possession for personal consumption.
Minister Dias Toffoli asked for a view (more time for analysis) at this Wednesday’s session (6). He can keep the process for up to 90 days. There is still no date for the case to be resumed.
So far, the score is 5 to 3 to decriminalize the possession of marijuana only for personal consumption.
Ministers Gilmar Mendes (rapporteur), Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso and Rosa Weber (already retired) voted for the unconstitutionality of classifying the possession of marijuana for personal use as a crime.
So far, Cristiano Zanin, André Mendonça and Nuens Marques have disagreed, voting to maintain the possession of marijuana for personal use as a crime.
There are still votes from Toffoli himself, and from ministers Luiz Fux and Cármen Lúcia.
Criteria
There is already a majority of votes for the need for the Court to define an objective criterion, such as quantity of drugs, to differentiate users from drug dealers. All eight ministers who spoke were in favor of setting this parameter.
So far, the proposal with the most support (four votes) establishes a criterion of up to 60 grams to presume consumption.
This suggestion was made in the vote of Alexandre de Moraes. Ministers Gilmar Mendes, Roberto Barroso and Rosa Weber joined it.
Cristiano Zanin and Nunes Marques proposed 25 grams of marijuana as a criterion. André Mendonça suggested 10 grams, but that was until Congress deliberated on the differentiation. He voted to give the Legislature a 180-day deadline for this definition.
Edson Fachin voted for the need to objectively establish and differentiate between user and trafficker, but proposed that this measure be taken by Congress.
The trial of the case has been going on in the STF since 2015. The discussion of the topic was resumed by the ministers in 2023, and has caused noise and disagreements with Congress. A proposed amendment to the Constitution (PEC) was presented in the Senate with the aim of criminalizing the possession and possession of any narcotics and drugs.
What is discussed
The discussion in the STF revolves around the constitutionality of article 28 of the 2006 Drug Law. The rule establishes that it is a crime to acquire, store or transport drugs for personal consumption.
By law, punishment for this crime involves alternative penalties, such as educational measures, warning and provision of services, and does not lead to prison.
It turns out that, as there is no clear and objective differentiation in the rules between user and trafficker, police and the justice system end up treating people differently according to skin color, social class or place of residence.
The case analyzed by the STF has general repercussions, that is, the understanding that the Court takes must be adopted in similar processes throughout the Court.
Today’s votes
This Wednesday’s session (6) had the votes of André Mendonça and Nunes Marques.
The first to vote was Mendonça, who had requested a hearing when the Court judged the case in 2023.
In his vote, Mendonça described information obtained from professors and researchers about the health harms of marijuana consumption.
The judge associated the act of smoking marijuana with a “first step towards the precipice”.
“There is talk about recreational use of marijuana. [Mas] It causes harm, and serious and greater harm than cigarettes. At the same time, I understand that this is extremely important to better define the quantity and the gradation of health risks,” he said.
In summary, I understand that the issue of decriminalization, which is what we are dealing with, is a task for the legislator. What authority are we going to use for an administrative offense? Aren’t you supposed to drive to the police station? Who will apply the penalty, even if it is a restrictive measure? In practice, we are releasing the use
André Mendonça
A similar statement was made by the next person to vote, Minister Nunes Marques. He said that drug use results in “severe harm” to the user and that family members and society “suffer indirect harm.”
He criticized the proposal to decriminalize possession for consumption while maintaining administrative penalties, such as educational measures and provision of services.
“The solution of decriminalizing and maintaining administrative sanctions is contradictory,” he stated. According to Nunes, another contradiction is the fact that trafficking continues to be considered a crime. “Selling drugs constitutes a serious criminal offense, but buying them for personal use is not.”
The minister also understood a decision on decriminalization as possible “disproportionate interference” by the Judiciary. For him, this type of discussion demands “deep reflection and debates” that are typical of the Legislature.
Previous votes
The rapporteur of the process is minister Gilmar Mendes. He cast his vote eight and a half years ago, in August 2015. At the time, he was in favor of decriminalizing possession for personal consumption of all drugs.
In the minister’s assessment at the time, criminalization stigmatizes the user and compromises prevention and harm reduction measures, in addition to generating disproportionate punishment for the user.
When the analysis resumed, in 2023, Gilmar readjusted the vote to restrict decriminalization to the possession of marijuana for consumption and to establish parameters differentiating trafficking from personal consumption.
Also in 2015, Edson Fachin and Roberto Barroso voted. The first voted to decriminalize only the possession of marijuana for personal consumption, since the specific case analyzed in the action deals with this drug.
Fachin explained that he is in favor of a path of “self-restraint” by the Court in criminal matters to justify restricting understanding only to marijuana. The minister understood that it is up to Congress to define the parameters for differentiating between users and traffickers. However, the minister understood that the Judiciary must act until there is a law filling the regulatory vacuum.
While there is no law approved on the subject, the minister proposed that Executive Branch bodies, such as the National Council for Criminal and Penitentiary Policy and the National Secretariat for Drug Policies, establish provisional parameters.
Barroso also voted in favor of decriminalizing the possession of marijuana for personal consumption, and went ahead by proposing the establishment of parameters for differentiating between drug dealers and users.
The proposal established the possession of 25 grams of marijuana or the planting of up to six female seedlings. Above that, in principle, the case would be trafficking. The proposed parameters are also provisional, until Congress decides on the topic.
The trial was suspended after a request from minister Teori Zavascki (who died in January 2017, in a plane crash in Paraty).
Teori’s successor, minister Alexandre de Moraes, presented his vote in August 2023, in favor of the decriminalization of marijuana for personal consumption.
He proposed setting a range between 25 and 60 grams or six female plants to consider consumption, together with other criteria.
According to the minister, police officers can arrest people in person who are carrying a smaller quantity than expected, provided that, in a substantiated manner, they prove the presence of other criteria characterizing trafficking.
These complementary criteria take into account the context of the seizure, such as the way the drug is stored, the variety of narcotics, the seizure of other instruments, such as scales and notebooks.
Minister Rosa Weber, at the time president of the STF, followed Moraes’ vote.
Cristiano Zanin was the first to vote in favor of the constitutionality of the Drug Law. He understood that the rule was made by the Legislature with the aim of decriminalizing (no longer providing for a prison sentence) possession of the drug, and not decriminalizing it.
Therefore, according to the minister, a judicial change in this regard would not be possible.
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