João Nabais: “It is necessary for all those involved in the justice system to bear in mind that hemp is a different plant from cannabis”

João Nabais is an unavoidable name in the legal profession in Portugal and has taken up the defense of Patrick Martins, founder of Green Swallow and president of ACCIP – Industrial Hemp Traders Association of Portugal, in process in which the defendant was constituted for the “crime of drug trafficking”. Patrick sold in his store products derived from industrial hemp, with less than 0,2% THC. The case was closed because “there were not enough indications that a crime had been committed” and the Public Prosecutor's Office did not appeal the instructional decision of the Judge of the Criminal Investigation Court, Carlos Alexandre.

Born in 1955, João Nabais worked on some of the most media-covered cases in Portuguese justice, including the FP-25 case or the collapse of the Hintze Ribeiro bridge. He was president of DECO — Associação Portuguesa para a Defesa do Consumidor — and founded, in 1993, the law firm João Nabais and Associates, with offices in Lisbon, Porto and Algarve. He also occasionally participates as a commentator on television programs, and is therefore well known by the Portuguese public.

We spoke with João Nabais to better understand what this instructional decision represents, determined by Judge Carlos Alexandre to Patrick Martins.

What does the shelving of this case represent, given that hemp is an issue that has generated a lot of controversy?
This decision is of enormous importance, not only for our client, but also for the industrial hemp sector, as it constitutes a first assessment, to our knowledge, by an investigating judge of the Central Criminal Investigation Court of Lisbon about the lawfulness of trade in these products in Portugal. In fact, the decision is absolutely clear and goes beyond the procedural issues raised in the request for the opening of an investigation, pronouncing itself in the sense of considering that the Community legislation is fully accepted in Portugal and, as such, must be complied with.

In your opinion, does this set a precedent? In other words, was there jurisprudence in relation to other identical cases?
It is not possible to make jurisprudence of an instructional decision, which only binds the concrete case. However, it is still important for other criminal proceedings, identical to this one, insofar as there is a prior assessment of a court on this same matter, regardless of the vicissitudes of each specific case. This decision is, moreover, important to confirm the conviction of the judicial authorities in Portugal that these situations cannot, purely and simply, be reduced to the crimes enshrined in Law 15/93, of 22 January and Portaria 94/96. , of 26 March, as they are actually different products, very different from the narcotics sanctioned under those legal diplomas.

From a legal perspective, how should these issues concerning hemp and derived products be dealt with in the future?
In legal terms, issues related to the sale, marketing and import of products derived from hemp should be dealt with and assessed in the light of European regulations, which are already in force, and which, moreover, define this plant species as an agricultural species, introduced under the Common Agricultural Policy. As such, it is necessary that all judicial stakeholders bear in mind that this is a different plant from the cannabis plant and, as such, it obeys specific regulations, whose cultivation and sale are allowed and, to that extent, remove it from the catalog of so-called narcotic products. Finally, iure condemning, I believe that it would be easier to put an end to all this controversy if the Portuguese legislator is willing to publish a clear and explicit law that, in the light of European regulations, defines and establishes the rules for the cultivation and marketing of industrial hemp, thus standardizing the applicable legislation within this sector and allowing producers to compete on an equal footing with other European markets.

Do you think this is possible? What needs to be done in Portugal to reach this point?
It is possible, in fact, this is the path that the sector has promoted with political parties and entities that intervene directly with this branch of activity. But it will certainly not be an easy path and less swift than we would like.