Habeas Corpus for cannabis cultivation in Portugal: is it possible?

Much has been said about the brilliant judicial journey carried out in Brazil since 2018, which has already determined the origin of more than 100 judicial decisions granted by Brazilian courts, all over the country, and which allow the families that brought the cases concerned, are entitled to self-cultivate cannabis. In addition to this "door" that has been opening, giving patients in need a "peace" of mind in obtaining the plant for the treatment of serious pathologies, we must not neglect that the fact that the decisions intend to legitimize the self-cultivation of the plant, brought all a new path, starting a sharing network between patients, growers and even oil producers. 

This process was energized by the Reform Network, composed of Brazilian jurists, whose actions unequivocally demonstrate an organization with a common motivation: patients and their right to health, a Universal Human Right.

After all, what is theHabeas Corpus"?
In short, it is a legal mechanism that allows the reaction against an abuse of authority at the time of the arrest of the individual, whether because the arrest has no legal basis, the order has been issued by a body without the power to do so, or because they are in any way violated the fundamental rights of the person concerned. In our country, the Habeas Corpus arrived under the direct influence of Brazilian law. O Habeas Corpus, Meaning “may you have the body”, was instituted for the first time in the 1911 constitution, article 3, nº 319 . the institute of Habeas Corpus is currently enshrined in the Constitution of the Portuguese Republic of 1976, revised in 2005, in article 31. It is also enshrined in the Portuguese Criminal Procedural Code in art. 220 and following. Article 220 says under the heading “Habeas Corpus by virtue of unlawful detention”, which establishes the following:

1 – Detainees on the orders of any authority may request the investigating judge of the area where they are to order their immediate judicial presentation, on any of the following grounds:

1. a) The deadline for delivery to the judiciary has been exceeded;
2. b) Keep the detention outside the legally permitted places;
3. c) The arrest was carried out or ordered by an incompetent entity;
4. d) The detention is motivated by a fact for which the law does not allow”. 

Portugal adopted a minimalist and reductive perspective on Habeas Corpus (HC), As this mechanism is extremely important in our legal system, it was not the last stronghold to restore the individual to freedom, configuring in the law an extraordinary legal measure, different from the appeal. Returning to the example of Brazil, a country that directly influenced this constitutional guarantee in Portugal, it can be seen that this institute has been used quite widely in the legal spectrum, and it is in this perspective that the safeguarding of HC issued for self-reporting fits. cannabis cultivation.

The different types of HC in Brazil
In Brazil, we can talk about four types of HC:

1 º - we started with repressive HC, which has similar outlines to the institute envisaged in Portugal. This repressive HC, also called liberatory HC, aims to “release” those who are illegally deprived of their liberty, through the issuance of a release permit under the terms of § 1 of art. 660, CPPB;

2 º - suspensive HC, in the presence of an illegal decision, without arresting the individual, it is intended to issue an arrest warrant, bearing in mind that there is only an arrest warrant imminent, but that the individual has not yet been arrested;

3º - prophylactic HC, which allows for the suspension of procedural acts or the challenge of measures that may culminate in a future arrest with the appearance of legality, but intrinsically linked to a previous illegality. In this case, the challenge aims at the potential for illegal arrest to occur; 

4 º – Finally, extremely importantly, the preventive HC, which allows it to be used in the imminence and preventively of a foreseeable, close and probable injury to the subject's freedom, even if it has not been actual, or rather, has not occurred, as is required in Portugal. Through the use of preventive HC, the applicant seeks the issuance of a safe conduct, which will be addressed to the entity issuing the decision, the arrest or detention process of the subject. The preventive nature of this mechanism allows the subject to anticipate the violation of his freedom, not even taking place this deprivation, which in my opinion ends up allowing the citizen to prevent the application of laws that should be changed because they are not in accordance with the current axiological-legal premises. Although preventive HC in Brazil does not have a legal discipline, it has already been invoked several times by jurists in different matters and there are more than 100 cases of approval of the request for preventive HC in Brazil. 

One of the associates of Santa Cannabis

This mechanism has already been used in several situations, but what brings us to its relation to this theme is the use of this legal device by Brazilian jurists, who managed to obtain judicial decisions prior to an imminent arrest for cultivating a plant prohibited by law, allowing patients' relatives and associations that protect them to obtain authorizations to plant cannabis, under specific terms and conditions, and to administer the products they extract to patients. In February 2021, a collective HC measure was promoted and granted in São Paulo, which prohibited the detention of members of Cultive – Associação de Cannabis e Saúde, for the cultivation of the herb. With this decision, the association in question will not only be able to cultivate but also provide patients who have authorizations to use the plant with a quality product that is properly controlled and tested.

HC in Portugal is different from Brazil

When we configure the Portuguese reality, we immediately realize that the HC can only be used, or better admitted, after the subject's arrest. In case it needs treatment through the plant, and imagining that it intends to promote self-cultivation, we realized that HC would not have the same practical effects that it has in Brazil. First, because the subject cannot use this institute as a way of accessing treatment and continuing it in a regular and sustainable way without avoiding conviction and the judicial decision of imprisonment for committing a crime, which, from the outset, limits the judicial route. that exists in Brazil, where HC can be requested through a civil action, based on the right to health as a universal right, where they intersect and there are several others, such as the dignity and inviolability of human life, and there is in itself a core of direct applicability that should not be dependent on political options and the availability of economic and financial resources. In Portugal, recourse to the HC is only allowed in the event of an illegal detention, provided that the use of the legal expedient, as is being done in Brazil, would not be upheld at all, as it does not fit the letter of the law.
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* Graduated in Law in 2005, with an internship completed and a member of the Portuguese Bar Association since 2007, Margarida Leitão Ferreira practiced law between Porto, Matosinhos and Vila Nova de Gaia for 15 consecutive years, exclusively in the area of ​​civil, banking and executive law. In 2015, she entered the real estate field and also dedicated herself to the study of cannabis in the legal field and the various challenges that this topic represents. Cannabis has been playing a significant role in your personal and professional journey.

Chronicle originally published in issue #2 of Cannadouro Magazine