07/07/2024 – 17:20
Brazilian forensic experts are awaiting the establishment of new guidelines for their work when they have to examine marijuana seized in small quantities by the police. The demand comes after the Supreme Federal Court (STF) ruled that it is not a crime to have up to 40 grams of cannabis sativa or six female plants – which produce flowers rich in the psychoactive compound tetrahydrocannabinol (THC).
“They will certainly have to establish new procedures, even to clearly characterize the situation that will be caused by the decision,” points out Marcos Secco, criminal expert from the state of Mato Grosso, president of the Brazilian Association of Criminalistics, which represents experts, forensic doctors and forensic dentists throughout the country.
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In the sessions that judged an extraordinary appeal regarding the possession of small amounts of marijuana, the STF determined that if a person is caught using the drug, the marijuana will be confiscated and the user taken to the police station. The police officer should not order the arrest or open an investigation, but record the fact as an administrative infraction and release the person, after notifying him or her that he or she must appear in court to be heard and, eventually, receive a non-criminal sanction.
The seized drug will need to be examined by experts in a laboratory to, for example, identify the substance and measure its volume. According to Marcos Secco, there is 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 laboratories and technicians for the new routine. “In the case of plants [confiscadas pela polícia]we would have to increase the botany service within the criminalistics institutes”, says the expert.
See the main decision points here
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 (IBCCRIM), points out a gap in this approach.
According to him, the Drug Law (Law No. 11,343/2006) does not contain 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 occur in a judicial process.” In its decision, the Supreme Court points out that the rules defined by the court are valid as long as the National Congress does not create a new law on the subject.
The STF also requires 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 National Secretariat for Drug Policy and Asset Management (SENAD), part of the Ministry of Justice and Public Security, will be responsible for coordinating many of these public policies.
For attorney Lívia Casseres, general coordinator of special projects on drugs and racial justice at Senad, the Supreme Court’s decision can reduce the stigma surrounding drug users and make it possible to reach these people “with genuine preventive policies that promote health and care.” According to her, in addition to public agencies, the development of these policies will involve civil society through the National Council for Drug Policies (Conad).
“There are several points of the decision [do STF] that still [a Senad] “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,” says the coordinator.
She points out that some technical definitions have not been established and “will need to be discussed and refined, first after understanding the full content of the ruling, of everything that was decided by the Supreme Court.” The ruling should only be sent in August, after the judicial recess. For now, the Supreme Court has only sent the minutes with the summary of the debates and the resolution to Senad and other bodies.
Even the National Council of Justice (CNJ), which is headed by the president of the STF himself, Minister Luís Roberto Barroso, is awaiting the Supreme Court’s ruling to deal with new judicial policies that should be implemented after the decision, such as carrying out prison task forces to review the arrest warrant for 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 Justa, a non-governmental research center on the Justice system, fears that the impact of the STF decision will be very small and that the resolution “changes something so that everything remains as it is.”
For him, 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, eventually, the possession of packaging, scales or sales records.
“Trafficking cannot be presumed. The commercial purpose must be proven and it must be externally corroborated evidence beyond the police testimony and the evidence,” the lawyer points out. “What could really change is to qualify the criminal investigation, to actually get to the bottom of who is the trafficker, 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 advocacy at the NGO Conectas Direitos, admits that “much more progress needs to be made”, but disagrees with Maronna and points out that the STF decision has an important effect that seems symbolic, but which has many repercussions in reality, such as the fact that the Supreme Court recognizes 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 says.
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