Resumption of legal discussion on cannabis possession sees clashes between justices and dissenting votes

Supreme Court Justice Dias Toffoli opened up a new line of interpretation about the matter

Translated by: Ana Paula Rocha

Brasil de Fato | Brasília (Federal District) |
Judgement on cannabis possession for personal use to resume on Tuesday (25) - Andressa Anholete/SCO/STF

On Thursday (20), the Supreme Court (STF, in Portuguese) resumed discussions on cannabis possession for personal use in a session marked by criticism of the state's inoperativeness and arguments between justices.

Justice Dias Toffoli brought the case back to judgement, after a request for a rehearing, and presented a lengthy vote, opening a new line of interpretation about article 28 of Brazil's Drug Law, which establishes penalties for "anyone who acquires, keeps, stocks, transports or maintains for personal consumption drugs without authorization or in disagreement with legal determination.” 

Toffoli gave a lengthy presentation on the historical elements that led to the prohibition of cannabis in Brazil, and the effects of criminalizing its use, such as the incarceration of users, the vast majority of whom are Black and poor. However, he defended the constitutionality of the article, believing that the penalties established are not in line with the Constitution. 

Regarding the establishment of a quantity for differentiating users from drug dealers, Toffoli defended STF's decision to give the Legislative and Executive branches "more time" to evaluate public norms and policies to implement decisions that will be established by the Judiciary. 

"We have to give time to the Legislative branch and the Executive’s public policies so that they implement [norms to solve] this lack of objectivity before we [Supreme Court] have to set it," he said. 

Even so, Toffoli pointed out that criminalizing users withdraws them from the health and social assistance systems. He also said that criminalization has caused "a greater social cost for society in Brazil," resulting in  over-incarceration." 

"I am convinced that treating users as drug offenders is not the best public policy for a social democratic state governed by the rule of law," he said. The justice was the sixth to vote.

The discussion was suspended and will resume on Tuesday (25), with the votes of Justices Luiz Fux and Carmen Lúcia, respectively.

Difference between administrative and criminal wrongdoing 

In response to criticism from the legislative about supposed judicial activism, the Supreme Court president, Justice Luís Roberto Barroso, opened the session by emphasizing that the Court considers cannabis possession illegal, even for personal consumption, according to the rules defined by the legislative itself, and that it is up to the judiciary to determine the nature of the illegality. 

"Cannabis consumption, which is the specific case, continues to be considered an illegal act because that is the legislator's will. We are discussing two issues: whether this should be treated as an illegal act of a criminal nature or an illegal act of an administrative nature," he explained.

"Nobody is proposing to legalize drugs. Drugs remain illegal. We are discussing the nature of the punishment and setting the amount that distinguishes possession for personal consumption from drug trafficking. Legislators treat possession and drug trafficking differently. What we are doing is defining the quantity that differentiates one from the other," he said.

Tension between the Supreme Court justices

During his opening remarks, Justice Barroso was interrupted by André Mendonça, who accused the judiciary of not considering the legislative, in line with the criticism from some sectors of Congress targeting the Supreme Court.

"The great truth is that we will be bypassing the legislative if this vote prevails with the majority currently established. The Legislative branch has defined that carrying drugs is a crime. Turning this into an administrative offense is going beyond the will of legislators. No country in the world has done this through a judicial decision," said Mendonça.

"Well, your honor has just said the same thing I said, only in a slightly more pamphleteering tone. We're discussing whether it's an illegal administrative act or whether it's an illegal criminal act. You think it's a criminal act, and you have every right to think so, but my explanation was absolutely correct as to what is being decided," Barroso replied.

Justice Alexandre de Moraes came to the defense of the Supreme Court president. "Everybody gives an opinion, but few know about these issues," said Moraes. 

"What is also happening is a misrepresentation of the votes and the discussion in the Supreme Court. It's quite easy to misrepresent the information presented here and the votes cast, trying to turn society against the judiciary," he added. 

The votes of the other justices

The issue began to be discussed by the Court in 2015, following the case of a man sentenced to two months of community service after being caught with 3 grams of marijuana in his cell at the Diadema Provisional Detention Center. 

Justice Gilmar Mendes, the case's rapporteur, argued that carrying drugs for one's own use should no longer be a crime. Justices Luís Roberto Barroso and Edson Fachin were in favor of decriminalizing only the possession of marijuana. Alexandre de Moraes and Rosa Weber also voted in favor of some form of drug possession decriminalization, adding up to five votes in favor.

Justices Cristiano Zanin, André Mendonça and Nunes Marques voted against decriminalization. Justice Flávio Dino did not vote, as his predecessor Rosa Weber had cast the deciding vote before her retirement.   

Criticism of Brazil's National Health Surveillance Agency

In his vote, Justice Dias Toffoli strongly criticized the Brazilian National Health Surveillance Agency (Anvisa, in Portuguese), and accused the institution of not having the "courage" to tackle the issue of cannabidiol use for therapeutic purposes

"We were talking about the issue of importing cannabidiol for therapeutic use, in which Anvisa has so far not had the courage to properly confront the problem and say what is and what is not a therapeutic use allowed. It authorizes imports, but for what therapeutic use? It's an omission by the state, by a very important regulatory agency," he said.

Brasil de Fato contacted Anvisa to comment on the justice’s statements, but had not received a response by the time this report was published. In case the agency responds, this news story will be updated.   


Edited by: Thalita Pires