2023-08-17 09:00:00
Carlos Moura/SCO/STF – 10/08/2023
If decriminalization passes, it will no longer be a crime to possess small amounts of marijuana
This Thursday afternoon (17), the Federal Supreme Court (STF) will resume the judgment that may lead to the decriminalization of possession and possession of small amounts of drugs – especially marijuana – failing to punish people who are considered users.
Trafficking, however, remains criminalized, with no change in this part of the legislation. The expectation is that, even if possession is released, the ministers of the Court will still determine some criteria to differentiate users from drug dealers.
The lawsuit that the Supreme Court is judging questions the constitutionality of article 28 of the Drug Law (Law No. 11,343, of August 23, 2006
), which made it a crime to “acquire, store, store, transport or bring drugs without authorization or in violation of legal or regulatory determinations for personal consumption”.
The subject began to be analyzed in 2015, but the trial was suspended after a request for a review by Minister Teori Zavascki, who died in an air accident in 2017. Thus, Minister Gilmar Mendes inherited the rapporteurship of the process and the trial resumed at the beginning of this month of August 2023. Two weeks ago, after Alexandre de Moraes voted, Gilmar Mendes asked for more time to analyze the votes that have already been presented.
Scoreboard
In the last session of appreciation of the subject, the score ended in 4 to 0 after Minister Alexandre de Moraes voted in favor of the release of marijuana for personal use, reaffirming the need to establish in the law an amount that helps to differentiate dealers from users. He suggested that people caught in possession of 25 to 60 grams of marijuana should not be punished.
Before Moraes, ministers Gilmar Mendes – the rapporteur of the action –, Edson Fachin and Luís Roberto Barroso (current president of the court) also voted in favor of releasing small amounts of marijuana.
Only Gilmar Mendes defended the decriminalization of possession of any type of drug and did not establish, in his vote, a quantity to differentiate dealers and users.
Ministers André Mendonça, Kassio Nunes Marques, Luiz Fux, Dias Toffoli, and Cristiano Zanin have not yet cast their votes. The same goes for ministers Cármen Lúcia and Rosa Weber. The understanding that, at the end of the votes of the 11 votes, will be chosen by the majority of ministers.
Criticisms – and reactions – from the Legislature
Faced with the resumption of the trial at the beginning of this month – when Moraes presented his vote – the president of the Senate, Rodrigo Pacheco, used the plenary of the House to criticize the Supreme Court, stating that any decision on the subject will be harmful if it is not accompanied by a public policy of the Executive or Congress.
“At that moment, this isolated attitude, without a public policy from the Executive, without a pronouncement from the National Congress regarding a public health program, could indeed be harmful to society and Brazilian youth (…) I address the Federal Supreme Court so that they can have this reflection on the consequence of this decision for Brazilian society, lacking a program that can discipline drug use in the country”, said the President of the Senate on August 2.
Pacheco is not the only parliamentarian dissatisfied with the judgment that the STF is carrying out. Proof of this is the convening of a thematic debate on “decriminalization of drug possession for personal consumption”, scheduled for this morning at 10 am. That is, on the same day that the Supreme Court resumes the trial.
In addition, there were those who reacted even more energetically in Congress, presenting three Bills of Law against the decision that the STF could take, aiming at prohibiting the possession of drugs for personal consumption. They were presented by former deputies Onyx Lorenzoni (PL-RS), Loester Trutis (PL-MS) and Daniel Silveira (PTB-RJ), all allies of former president Jair Bolsonaro.
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