Lawyers see change in justice route with decision that authorized planting of medical marijuana

After a series of court defeats, lawyers and patients advocating the legalization of medical marijuana in Brazil considered Tuesday’s decision (14) of the STJ (Superior Court of Justice) that authorized three people to plant cannabis in the country an advance.

In practice, what the Sixth Panel of the court did was to give three patients – a woman with breast cancer and two men with depression – a safe-conduct, a legal instrument that guarantees that those involved will not be held criminally responsible for the plantation.

Thus, the decision did not legalize the cultivation of marijuana in the country for medicinal purposes, which remains prohibited.

Even so, it was seen as an important victory that may indicate a change in the direction of Justice on the subject. “Since last year, when the STJ’s Fifth Class denied a safe-conduct, a precedent was set against the instrument”, explains Bianca Uequed, 39, the criminal lawyer responsible for one of the actions.

After this decision in 2021, he recorded it in the newsletter that publishes his decisions “that safe-conduct for planting cannabisaiming at the extraction of medicinal oil, albeit in quantity for the control of epilepsy”.

This text started to be used by judges from all over the country to deny the granting of the safe-conduct, with the argument that the authorization should be carried out by Anvisa (Sanitary Surveillance Agency). The body is responsible for regulating the import and trade of cannabis products, but it has no power to allow or deny the cultivation of the plant.

“Anvisa even declared itself incompetent for the matter, even so the judges continued to take the newsletter as a basis”, says Deborah Di Lucena Garcia, lawyer and founder of the association of cannabis medicine Força Dourada, which has 200 patients in Itatiaia (RJ).

She has chronic pain caused by the herpes zoster virus and treats the condition with medicinal oil produced by hand from the flowers of the Çpineapple, which grows at home. In December 2020, he applied for a safe-conduct, but he was denied.

“Now I think I have a chance to get habeas corpus. The decision of the Sixth Panel also paves the way for me to get safe conduct for the association. I should file a lawsuit next week.”

Across the country, six national associations already have a safe-conduct for cultivation. this allows them to produce and distribute substances such as cannabis oil to associates without risk of criminal prosecution.

“[O habeas corpus] It does not give permission to plant, it only guarantees that the individual is not arrested, on an exceptional basis, as he is planting for the benefit of his own health, despite incurring Articles 33 and 28 of the Drug Law”, explains Deborah.

“A”, For lawyer Gabriella Arima, director of the Legal Network for Drug Policy Reform, the Sixth Panel has shown itself to be sensitive to the causes linked to the release of cannabis. She defends two of the patients benefiting from Tuesday’s decision — the woman with cancer and one of the men with depression.

The lawyer says that her clients lived in constant insecurity before the trial at the STJ. “I had a client who spent nine months in prison because he had half a dozen plants cannabis at home”, says Gabriella.

“The law does not specify the amount for the offense to be considered trafficking. Decisions depend on the personal interpretations of the delegates or judges”, he adds.

In addition, to file habeas corpus in court, a person must have already started planting, says Deborah. While she waits for a decision, therefore, the patient is at risk of being criminally accused.

Planting is the only therapeutic option for patients who do not have access to cannabis products due to the high cost.

“Patient associations, in general, offer artisanal oil at lower prices than the market, even so, the cheapest is around R$ 250. Knowing how to plant became a necessity for patients”, says psychiatrist Eliane Nunes, founder of Gardening Mothers.