Close to retirement, the president of the STF cast a vote after André Mendonça’s request for a review
the president of stf (Federal Supreme Court), Minister Rosa Weber, voted in favor of the decriminalization of the personal possession of marijuana this Thursday (24.Aug.2023) during a trial at the Court. The minister decided to advance her vote after the request for a review (more time for analysis) by Minister André Mendonça.
With the suspension of the judgment, Mendonça has 90 days to analyze the process. If he used all the available time, he would overrun Weber’s time at Court. The minister compulsorily retires on October 2, when she turns 75.
In his vote, Weber said he would follow the understanding put forward by Gilmar Mendes, rapporteur of the action, in 2015, which determines the decriminalization of drugs for personal use.
However, the minister readjusted his vote so that the judgment was valid only for possession of marijuana. The rapporteur’s new understanding was accompanied by the president of the STF, who said she was “convinced” that it is more appropriate to restrict the judgment to this drug alone.
According to Weber, the update to the Drug Law decriminalized, but did not decriminalize personal use, which increases the stigma for users and hinders the search for treatment.
In addition, the magistrate states that during her visits to prison units across the country as president of the CNJ (National Council of Justice) the reality of Brazilian prisons, where, according to Weber, “if you have a vision of hell”.
“The State, using the most robust and incisive form of its framework, criminal law, by restricting private autonomy, escaped the minimum and indispensable parameters for limiting fundamental rights. This is because the strictly personal consumption of drugs puts the individual health of the user at risk”said the President of the Court.
“In reality, the entire Drug Law legitimately demonstrates that chemical dependency and drug use fall within the scope of public health and social reintegration policies. I consider the use of the state penal apparatus to prevent the consumption of narcotics to be disproportionate”completed.
The minister also followed the parameter set by Minister Alexandre de Moraes, to differentiate user from dealer, of up to 60g of marijuana to be classified as personal possession. Minister Roberto Barroso, who had set the 25g limit, said this Thursday that he could readjust his vote to follow the majority in relation to the defined amount.
By advancing his vote, Weber leaves his position recorded in the judgment and prevents, for example, that his successor changes his understanding. The judgment on personal possession of drugs is one of the minister’s priorities before her retirement.
The action judged by the Court questions article 28 of the Drug Law (Law 11.343/2006), which deals with transportation and storage for personal use. The foreseen penalties are mild: warning about the effects, community services and educational measure of attending a program or course on drug use.
The judgment is 5 votes to 1 for the decriminalization of personal marijuana use.
Here is the previous result:
- 5 votes for the unconstitutionality of article 28 of the Drug Law for possession of marijuana: Gilmar Mendes (rapporteur), Roberto Barroso, Edson Fachin, Alexandre de Moraes and Rosa Weber;
- 1 vote for constitutionality: Cristiano Zanin.
In addition to the decriminalization of personal possession, the Court will discuss the requirements to differentiate personal use from drug trafficking. Currently, the Drugs Act states that the definition is at the discretion of the judge.
Ministers argue that the norm can open loopholes for injustices in the judiciary. In his vote, on August 2, Minister Alexandre de Moraes stated that young black men are considered drug dealers with much smaller amounts of drugs.
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