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Brazil Appeals Court Rules Drug Possession Not a Crime
01 JUNE 2008 - Drug War Chronicle, #538

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.

Psicotropicus banner promoting marijuana (maconha) legalization.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."

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