Decriminalization of drug possession returns to the Brazilian Supreme Court on June 1

The anticipated debate in the Federal Supreme Court of Brazil, regarding the decriminalization of drugs, was initially scheduled for May 24, but ended up not happening. The judgment, which has been dragging on since 2011, could, however, be decided on the 1st of June. 

It is a trial that has been going on since 2011, has 10 volumes and more than 2000 pages. After several interruptions and stoppages, the Extraordinary Appeal 635.659 is back to the Court of the Federal Supreme Court (STF). Requested by the Attorney General of the State of São Paulo, the judgment challenges article 28 of the Anti-Drug Law (Law No. 11.343 / 2006), which makes the purchase, storage and transport of any narcotic substance for personal consumption illegal.

The date initially scheduled to debate this issue, with national repercussions, was on the 24th of May, however because it was not possible, this was rescheduled for the 1st of June. Regarding the appeal, the Brazilian lawyer Emílio Nabas Figueiredo explained that “considering that it is a judgment that arrives at the STF in 2011 and there have already been several postponements, the first expectation is whether the judgment will actually happen until the end or if there will be a request for view or withdrawal from the agenda”.

Judgment result may define the future of drug policy in Brazil

This is a process that will have strong national repercussions on the judicial perception of the issue of drug policy. And this judgment can both result in an impetus for adapting more progressive drug policies and can be marked as a decision that cements more conservative values ​​in relation to Brazilian drug policy.

Emilio Nabas Figueiredo states that “if the constitutionality of criminalization is recognized, prohibitionists will be able to move forward with their agendas with the various bills to tighten the drug law in the legislature, in addition to all the social effects of criminalizing the user”. Figueiredo also explains that, on the other hand, "if the unconstitutionality of the user's criminalization is recognized by the STF, new possibilities for advances in the drug policy reform agenda will emerge".

However, the lawyer emphasizes that the important thing is that “the decision is well modulated by the STF, as there is a risk that authorities of the criminal justice system will only apply the articles of trafficking to those who are caught carrying proscribed substances, plants and fungi”.

Case of national repercussion dates back to 2009

The appeal is filed by the General Defender itself, in a 2009 case concerning an inmate found with a small amount of cannabis. The Defender General argues that the punishments provided for in the criminal framework of the legislation, such as the provision of services to the community, attendance at educational courses and warnings about the effects of drug use are unconstitutional, claiming that the legislation violates the privacy of citizens, including the right consciously putting their own health at risk.

The process involves the conviction in 2009 of the mechanic Francisco Benedito de Souza, for possession of a small amount of cannabis, found in a routine inspection at the Provisional Detention Center in Diadema (São Paulo). The prisoner was serving a sentence for illegally carrying weapons, and saw his sentence increased by an additional two months of community service.

The Public Defender of São Paulo called into question the conviction and the article of the Anti-drugs Law and meanwhile, after going through all instances and waiting more than 10 years for the STF, sees the final judgment of this long journey scheduled for June 1 . The process has a General Repercussion character – that is, what is decided will make jurisprudence for similar situations.