Experts point out lack of definitions regarding the analysis of the seized substance and CNJ awaits guidance to release prisoners
Brazilian criminal experts are awaiting new guidelines for when they have to examine marijuana seized in small quantities by the police. The demand arose after the STF (Supreme Federal Court) decriminalize the possession of up to 40 grams of cannabis sativa or 6 female plants – which produce flowers rich in THC, the psychoactive compound tetrahydrocannabinol.
“They will certainly have to establish new procedures.”, said the criminal expert of the State of Mato Grosso Marcos Secco, president of Brazilian Association of Criminalisticswhich represents experts, forensic doctors and forensic dentists throughout the national territory.
On June 25, the Supreme Federal Court decided to legalize the possession of marijuana for personal use. In practice, the conduct does not become legal, but it is no longer treated as a crime.
Since June 28, people caught using marijuana will have their drugs confiscated and the user will be taken to the police station. The police officer, however, will not order the arrest or open an investigation. The case will be registered as an administrative infraction and the person will be notified that they must appear in court to be heard and, eventually, receive a non-criminal sanction. The offender will be released.
The seized drug will be examined by laboratory experts, who will identify the substance and measure its volume. According to Marcos Secco, there is still a lack of definitions regarding the obligation to weigh the drug on a certified scale. In addition to specific rules, the expert believes that it will be necessary to prepare the laboratories and technicians for the new routine.In the case of plants [confiscadas pela polícia]twe would need to increase the botany service within the criminalistics institutes”, said the expert.
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Warnings
Anyone who commits an administrative offense for possession of marijuana may be warned about the effects of the drug or have to attend a course on the subject. However, public defender Bruno Shimizu, president of the Brazilian Institute of Criminal Sciences, points out a gap in this approach.
According to him, there is no provision in the Drug Law (law no. 11.343/2006) a specific procedure for investigating administrative infractions.”The STF understood that, as long as there is no regulation of this procedure, the imposition of these sanctions continues to take place in a judicial process.“, he explained. In the decision, the Supreme Court highlighted that the rules defined by the Court are valid until the National Congress creates a new law on the subject.
The STF also ordered the government to create educational programs on the risks of drug use and provide health care for addicts. These initiatives must involve different government agencies. The articulation of many of these public policies will involve Senad (National Secretariat for Drug Policies and Asset Management), of the Ministry of Justice and Public Security.
For lawyer Lívia Casseres, general coordinator of special projects on drugs and racial justice at Senad, the Supreme Court’s decision can reduce the stigma against people who use drugs and make it possible to reach users with policies “preventive, health promotion and care”. According to her, in addition to public bodies, the development of these policies will involve civil society, through Conad (National Council on Drug Policy).
“There are several points of the decision [do STF] that still It is not completely clear, because the decision has not yet been published. There are many complexities that will need to be considered, I think by all branches of government.”, said the coordinator.
Casseres highlighted that some technical definitions are not established and “will need to be discussed and matured based on an understanding of the full content of the ruling“The decision should be sent in August, after the end of the Judiciary’s recess. For now, the STF has sent to Senad and other bodies only the minutes with the summary of the debates and the resolution.
Even the CNJ (National Council of Justice), which is headed by the president of the STF himself, Minister Luís Roberto Barroso, is awaiting the Supreme Court’s ruling to discuss new judicial policies that should be implemented. Among them are the implementation of prison task forces to review the arrest warrants of people caught with less than 40 grams of marijuana.
Relative impact
In addition to gaps in technical procedures and uncertainties regarding the formulation of new public policies, there are doubts and disagreements about the effects of the decision. Lawyer Cristiano Maronna, director of Faira non-governmental research center on Justice, fears that the impact of the STF decision will be very small and that the resolution “change something so that everything stays the same”.
For Maronna, the Supreme Court’s decision maintains the assumption that the case is one of trafficking, and not recreational use, based on the police officer’s testimony, based on evidence such as the volume of drugs seized and, possibly, the possession of packaging, scales or sales records.
“Trafficking cannot be presumed. The commercial purpose must be proven and must be externally corroborated evidence beyond police testimony and evidence.”, said the lawyer. “What could really change is to qualify the criminal investigation, to actually get to the bottom of who is the drug dealer, who makes money from it. After all, if it is a billion-dollar business, it is not possible that only poor black people are arrested.”
Lawyer Gabriel de Carvalho Sampaio, director of litigation and incidence at NGO Conectas Rightsassessed that “we need to advance much further”, but disagreed with Maronna regarding the impact of the measure. According to him, the STF decision has an apparently symbolic effect, but with many consequences in reality, such as the Court’s recognition of the injustices committed by the Judiciary and the police in the application of the Drug Law.
“The Supreme Court’s resolution will become an important tool in everyday life, meaning that simply seizing the quantity, a mere subjective statement by the police, will no longer be enough to classify the drug as trafficking. From now on, users will have a statement from the Supreme Federal Court that they are not committing a crime by consuming the drug, in this case, marijuana.”, he assessed.
With information from Brazil Agency.
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