Brazil Appeals Court Rules Drug Possession Not a Crime

At the end of March, a Brazilian appeals court in
São Paulo declared that possession of drugs for
personal use is not a criminal offense. Several
lower courts had previously ruled in the same
way, but the ruling from the São Paulo Justice
Court's 6th Criminal Chamber marked the first
time an appeals court there had found Brazil's
drug law unconstitutional as it pertains to
simple drug possession.
The ruling came in the case of Ronaldo Lopes, who
was arrested with 7.7 grams of cocaine in three
separate bags on the night before Carnival began
in 2007. Lopes acknowledged that the drugs were
his and said they were for his personal use.
Lopes was sentenced to 2 1/2 years in prison as a
drug trafficker. But the appeals court judges
threw out the trafficking charge since it was
based on an anonymous complaint. It then threw
out the possession charge, saying it was
unconstitutional.
In his opinion in the case, Judge José Henrique
Rodrigues Torres said the law criminalizing drug
possession for personal use was invalid because
it violated the constitutional principles of harm
(there is no harm to third parties), privacy (it
is a personal choice), and equality (possessing
alcohol is not a crime). "One cannot admit any
state intervention, mainly repressive and of
penal character, in the realm of personal choice,
especially when it comes to legislating
morality," he said.
The ruling applies only to Lopes, but can be used
as a precedent in other court proceedings. There
is no word yet on whether the Brazilian
government will appeal.
The ruling comes nearly two years after Brazil
changed its drug laws to depenalize -- but not
decriminalize -- drug possession for personal
use. Under that law, drug possession is still a
criminal offense, but penalties are limited to
fines, fees, education, and community service.
In his opinion, Torres cited earlier decisions by
now retired Judge Maria Lúcia Karam, who told the
Chronicle this week the appeals court decision
was "praiseworthy" and "significant."
"The praiseworthy ruling by a Court of Appeals in
São Paulo, proclaiming the unconstitutionality of
the Brazilian law that criminalizes drug
possession for personal use, is a remarkable
moment in Brazil's judicial history," she said.
"This is a decision of great significance. This
is the first time a Brazilian appeals court has
clearly stated that a law that criminalizes drug
possession for personal use contradicts the
Constitution and the international declarations
of human rights. This is the first time that a
Brazilian appeals court has clearly stated that
drug possession for personal use is a behavior
that matters only to the individual, to his or
her privacy, and to his or her personal choices.
This is the first time that a Brazilian appeals
court has clearly stated that the state is not
authorized to interfere within this sphere of
privacy. This is the first time that a Brazilian
appeals court has clearly stated that the
individual shall be free to be and to do whatever
he or she wants, while behaving in such a way
that does not affect any rights of others," Karam
said.
The decision should reverberate through the
Brazilian courts, said Karam. "This is a real
precedent, and it should encourage other
Brazilian courts and judges to also accomplish
their main mission, that is to guarantee liberty
and all other fundamental rights of individuals,
to actually respect the Constitution and the
international declarations of human rights," she
said.
"This is good news," agreed Luiz Paulo Guanabara,
head of the Brazilian drug reform group
Psicotropicus. "The 2006 drug law reform did away
with prison sentences for people possessing
illicit drugs for personal use, but under that
law, drug users were still criminals who could be
penalized by community service or fines and fees.
This is an advance," he said.
"Amazing," said Martín Arangurí Soto, a graduate
student in political science in São Paulo and
Drug War Chronicle's Spanish and Portuguese
translator. "The Justice Court of São Paulo is a
very conservative court. It was among the ones
that banned the marijuana marches at the
beginning of this month," he noted. "Does this
mean the marijuana march is on next year? They
won't be able to argue that it is an 'apology for
drug use,' because possessing for personal use is
not a crime anymore."
Drug law reform is a work in process in Brazil,
said Guanabara. "This is a timely decision
because the new law is not carved in stone and
must be amended to fit social reality. Now we
have the chance to quit unjustly criminalizing
people for consuming this or that substance or
carrying illicit drugs for personal use."
One of the remaining issues to be resolved is
what quantity of drugs is considered personal
use, said Guanabara. "There is no set quantity to
distinguish users from dealers," he explained.
"This ruling is notable because the defendant was
caught carrying more than seven grams of cocaine.
If he had lived in a slum and been detained with
that same amount he would have been considered a
drug dealer and subjected to the same penalties
as someone caught with 10 kilos of cocaine, which
is one of the more irrational aspects of our drug
laws."
Beyond the impact the ruling could have on the
lives of drug users, it also shows how far Brazil
has come, said Guanabara. "The drug policy
discussion has reached the mainstream in Brazil,"
he said. "When Psicotropicus was created just a
few years ago, the topic was taboo and people who
spoke in favor of drug policy reform were
regarded as lunatics or advocates against the
'indisputable' crime of possessing, using or
selling the forbidden drugs."