STF defined quantity to differentiate user from drug dealer; Court did not legalize the practice, which must still have administrative sanctions
O STF decided on Tuesday (June 25, 2024) to allow possession of marijuana for personal use and set the maximum amount of 40 grams or 6 female plants as a parameter to differentiate users from drug dealers in the event of an act. The ministers agreed that the definition of grammage by the STF is temporary and must be taken into account until Congress legislates on the topic.
The decision does not mean that the Supreme Court legalized the practice, which remains illegal. What was understood is that personal use ceases to be a crime, the so-called criminal offense, and becomes an administrative offense. In other words, user would be subject to educational measures, warning and attendance at courses or programs.
Read below how to consume 40 grams of marijuana and the procedures from now on:
WHAT WAS UNDER ANALYSIS?
The Court debated the constitutionality of article 28 of the Drug Law (11,343 of 2006), which talks about transport and storage for personal use. The stipulated penalties are mild: warning about the effects, community service and educational measure of attending a program or course on drug use.
WHAT WAS DEFINED?
The collegiate decided that the personal use of marijuana no longer constitutes a crime. Despite continuing to be an illegal practice (because it is not regulated by law), the conduct does not result in criminal sanctions for the user, such as filing or opening a police investigation.
The Court defined criteria to differentiate personal use and trafficking. They understood that the amount will be a maximum of 40 grams. In other words, someone who is caught carrying even this amount of the drug should not be classified as a drug dealer, but as a user (read the thesis defined at the end of the report).
USER
Despite the 40 gram criterion defined by the STF, it is relative. According to the decision, it is possible that people caught with a smaller quantity of the drug could be classified as drug traffickers, depending on other circumstantial evidence.
The ministers argue that the presence of scales, a cell phone containing contacts of users or traffickers, records of commercial operations or the place where the act was committed may characterize trafficking rather than use.
According to the President of the Court, Minister Roberto Barroso, “40 [gramas] is a reference. It could be trafficking with less and it could be possession with more, it depends on the references.”
For lawyer Fernando Hideo, doctor in criminal law, the definition of the quantity by the STF does not produce changes in relation to what is currently practiced.
“Because it is merely a ‘relative presumption’, it [a definição de gramatura para diferenciar usuário de traficante] it can be ruled out by interpreters and applicators of the norm in other circumstances. The truth is that this will not change the existing legal situation in any way, as there is already a rule that establishes the same thing”he states.
The lawyer’s argument is based on the provision of the Drug Law questioned in court, which says that “to determine whether the drug was intended for personal consumption, the judge will consider the nature and quantity of the substance seized, the place and conditions in which the action took place, the social and personal circumstances, as well as the conduct and background of the agent”.
The differentiation between user and trafficker based on weight, now defined by the Court at 40 grams, would be used to differentiate the penalties stipulated for each case.
Currently, the Drug Law determines that the definition would be at the discretion of the judge – which, according to some Supreme Court ministers, opens up loopholes for classifying people based on partial and sometimes discriminatory biases, such as based on color. of the user’s skin.
WHO WILL MONITOR?
Currently, when a user is approached with marijuana, they are taken to the nearest Police District. After verifying the nature and quantity of the drug, he responds to legal proceedings and may be subjected to the penalties stipulated by art. 28, of the Drug Law, as provision of services to the community.
According to Barroso, the procedure to be followed must be the same, with the exception of criminal sanctions. In other words, a seizure document will still be drawn up at the police station and the quantity of the drug will be weighed.
It was also defined that the rites for compliance with the STF decision must be defined by the CNJ (National Council of Justice) in partnership with other government bodies. Until the new rite is established by the council, the competence to judge conduct will rest with the special criminal courts, as they are today.
“For now, it will follow the procedure that already exists in the legislation and will be carried out at a police station. Hopefully, somewhere in the future, it should be different.”the president of the STF told journalists after the trial.
According to the professor of criminology at USP (University of São Paulo) Maurício Stegemann Dieter, cowing to the fact that the conduct ceased to be a crime and became an administrative offense, the prerogative of inspection should leave the criminal sphere.
For the lawyer, this is one of the weaknesses of the Court’s decision because no authority was defined to monitor such conduct: “Who is going to carry out an investigation into whether the substance is marijuana if they don’t have administrative authority? It cannot be the criminalistics institute, because it only investigates crimes. Who’s going to know if it’s marijuana and who’s going to weigh the marijuana?”.
DECRIMINALIZATION X LEGALIZATION
What was discussed in the trial was the decriminalization of marijuana possession, not its legalization.
By decriminalizing the conduct, it is no longer treated as a crime and does not result, for example, in the loss of the first offender for anyone caught with the quantity defined by the Court for personal use.
“This is because the Drug Law, which came into force in 2006, no longer provides for a prison sentence for possession. However, it maintained criminalization, with alternative penalties — provision of services to the community, mandatory attendance at an educational course, warning”says André Damiani, specialist in economic criminal law.
This way, it is no longer a crime in Brazil acquire, store or transport the substance for personal use. This does not mean, however, that the practice has been released, only that the person caught will not receive criminal sanctions.
The conduct, therefore, remains illicitsince legalization means that the act or conduct became permitted through a law that regulates the practice and whose establishment is the prerogative of the Legislature.
In addition to defining the thesis for future cases, Damiani states that the decision may result in several requests for review of the sentence, since the most beneficial criminal law is retroactive: “Therefore, individuals who have been penalized for possession of marijuana may have their sentences reviewed”.
REPERCUSSION OF THE THESIS
At the end of the trial, the ministers defined a thesis of general repercussion, that is, that it should serve as a guide for similar trials in other instances of the Judiciary. It has 8 items.
Here is the thesis defined by the court:
- item 1 – “Anyone who purchases, stores, transports or brings with them for personal consumption the substance cannabis sativa does not commit a criminal offense without prejudice to the recognition of the extra-penal illegality of the conduct involving the seizure of the drug and the application of warning sanctions about its effects, article 28 item 1 of the Code Criminal, and educational measure of attendance at an educational program or course, article 28, item 3 of the Penal Code”;
- item two – “The sanctions established in items 1 and 3 of article 28 will be applied by the judge in a non-criminal procedure without any criminal repercussions for the conduct”;
- item 3 – “In the case of possession of cannabis for personal consumption, the police authority will seize the substance and notify the perpetrator of the incident to appear in court, with the issuance of a report of arrest in the act or a detailed term being prohibited.”;
- item 4 – “Under the terms of paragraph 2 of article 28, anyone who, for their own use, acquires, stores, has in deposit or brings with them quantities of up to 40 grams of sativa or 6 female plants will be presumed to be a user, until Congress legislates on the matter.”;
- item 5 – “The presumption of the previous item is relative, and the police authority or its agents are not prevented from carrying out arrests in the act of drug trafficking, even for quantities lower than the limit established above, when there are elements indicative of the commercial intention, such as the form of packaging of the drug, the circumstances of the seizure, the variety of substances seized, simultaneous seizure of instruments such as scales, records of commercial operations and cell phones containing contacts of users or dealers”;
- item 6 – “In these cases, it will be up to the police chief to record detailed justifications in the arrest report for personal use, with the allusion to subjective criteria, such as the training and experience of police officers, the allegation of nervousness or suspicious attitude and the invocation of anonymous complaints or attempts to escape under penalty of civil and criminal disciplinary responsibility of the authority and nullity of the arrest”;
- item 7 – “In the event of arrest for amounts lower than those set out in item 4, the judge must, in the custody report, evaluate the reasons given for removing the presumption of possession for personal use.”;
- item 8 – “The seizure of quantities greater than the limits now established does not prevent the judge from concluding that the conduct is atypical, pointing out in the records sufficient proof of user status.”.
THC GRADATION
When defining the amount of marijuana that will be considered legal for personal consumption, the ministers did not go into a detail that could be relevant later and create confusion: what type of cannabis are referring.
There are a variety of plants that produce hallucinogenic effects to a greater or lesser extent. It all depends on the level of THC (tetrahydrocannabinol), the drug’s active ingredient and sought after by people who use the substance recreationally.
The THC contained varies between parts of the plant: from 10% to 12% in the flowers, 1% to 2% in the leaves, 0.1% to 0.3% in the stems, up to 0.03% in the roots, explains a text from the Unodoc (United Nations Office on Drugs and Crime).
Even with the STF ruling that 40 grams is considered legal for possession and personal consumption, it is not clear whether this refers to cannabis flowers, leaves, stems or roots. There is a big difference between each part of the plant.
“Marijuana has been undergoing intense transformations since the 1970s. New production methods, such as hydroponic cultivation, have increased the potency and negative effects of tetrahydrocannabinol (THC), the most psychoactive substance found in marijuana. It is important to understand the potency of marijuana due to its link to health problems, including mental health,” says UNODC.
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