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STF forms majority to differentiate trafficking from marijuana use; Toffoli asks for a view

The score is five to three to decriminalize possession of marijuana for personal use. The majority of the Court voted to establish a quantity that differentiates users from drug dealers.

From the Editor

 

Wednesday, March 6, 2024

 

 

In a plenary session this Wednesday, 6th, minister Dias Toffoli requested a review of the action that analyzes the decriminalization of marijuana possession for personal use. At the moment the score is five to three in favor of decriminalization and the Court has already formed a majority to establish a quantity - not yet defined - to differentiate marijuana users from drug dealers.

 

The action has been before the Supreme Court for almost ten years. Before the request for review, Minister André Mendonça and Minister Nunes Marques presented their votes. 

 

Decriminalization

 

Ministers Mendes (rapporteur), Edson, Luís Roberto Barroso, Alexandre and Rosa Weber (currently retired) voted to give an interpretation in accordance with the CF to art. 28 of the drug law, invalidating section II and considering the sanctions provided for in sections I and III as administrative. This means that the five ministers were in favor of decriminalizing the possession of marijuana for personal use. 

 

Ministers Cristiano , André and Nunes Marques were against the decriminalization of marijuana.

 

See the score:

 

 

Quantitative criterion

 

All ministers voted to establish a quantitative criterion to distinguish personal consumption and marijuana trafficking. Therefore, in this aspect, the STF already has a majority. However, ministers still disagree regarding quantities.

 

Ministers Mendes, Alexandre de , Rosa Weber (currently retired) and Luís Roberto Barroso understand that the amount of 60g or six female plants should be considered personal consumption.

 

Minister Edson  understands that the quantity must be defined by the Legislature. Ministers Cristiano  and Nunes Marques understand that the quantity of 25g or six female plants is sufficient to distinguish consumption from trafficking.

 

Minister André  set the differentiating quantity of 10g of marijuana.

 

Check the score:

 

Initial clarification

 

This afternoon, the President of the Court, Minister Luís Roberto Barroso, made clarification regarding what is being judged by the STF.

 

Your Excellency. reported that the Court must define the nature of marijuana possession: is it a crime, punishable by criminal measures, or an illicit offense, with administrative sanctions? He emphasized that this is not about legalization, and that drug consumption in Brazil will continue to be illegal. 

 

" Drugs are not being, nor will be, released in the country by the STF. Legalizing is a definition that falls to the Legislature, not the Judiciary. "

 

The second issue faced by the Supreme Court, according to Minister Barroso, will be an objective criterion to help police officers, and all members of the Justice system, to differentiate the user from the dealer based on the quantity of drugs found. 

 

" We have already watched this film and we know who dies in the end: the poor black man who carries 10g of marijuana will be considered a drug dealer and sent to prison. The white man, from an upscale neighborhood, will be considered a user and released. Therefore, What is at stake here is to avoid the unequal application of the law ", he concluded.