Farm in California and aunt’s cancer motivated lawsuit over marijuana that reached the STJ

After three seasons of work in the harvest of a marijuana farm in Northern California (USA), the São Paulo designer Bardas (not his real name), 29, had to go to court to be able to maintain, on his return to Brazil, his successful treatment. for anxiety and insomnia from active ingredients of cannabis.

Last Tuesday (14), the 6th Panel of the STJ (Superior Court of Justice) granted him and two other people safe-conduct for the domestic cultivation of marijuana and the production of oils intended for personal therapeutic use, without this representing risk of being investigated, denounced, arrested, tried or convicted for the crime of drug trafficking.

This is the first decision in favor of the domestic cultivation of patients for personal therapeutic purposes by the second highest chamber of the Brazilian Judiciary, which helps to consolidate jurisprudence on an increasingly judicialized topic in Brazil.

Still, every time Bardas brings it up, his palms sweat cold. The young man did not imagine that his case would go this far. After all, he says, on his return to Brazil he met other people who got the same decision right away, in the first instance, not two years after a legal battle began over the issue — which he says he didn’t even intend to face.

Upon returning to Brazil, Bardas already knew that his American prescription and the patient’s document, necessary for the purchase of drugs based on cannabis on Californian soil, had no validity.

The Brazilian way to acquire the CBD (cannabidiol) rich oils that he used in the US was to obtain a medical order in Brazil and request authorization from Anvisa (National Health Surveillance Agency) to import the products. But, at the end of this journey, he had a catch: the high cost of medicines.

Since 2015, the compassionate use of cannabidiol for therapeutic purposes is allowed in the country. In 2019, Anvisa (National Health Surveillance Agency) regulated the sale of cannabis-based products in pharmacies and, in 2020, granted registration to the first product of its kind. Although for the agency these products are not medicines but phytopharmaceuticals, the purchase depends on a medical prescription with a special prescription.

As the cultivation of marijuana is not allowed in the country, medicines or their inputs have to be imported, resulting in higher costs for the patient or for the SUS (Sistema Único de Saúde).

Bardas quickly calculated that maintaining the treatment would cost about R$2,000 a month. The account just wouldn’t close. Furthermore, it was frustrating not to be able to apply the knowledge acquired in California on dealing with the plant and the manufacture of oils in Brazil. Domestic production, he calculated, would reduce costs to the point of making therapeutic use possible in Brazil as well.

Still, the courage to take the first step, he says, only came from bad news: his aunt discovered breast cancer and started a treatment fraught with side effects that, he knew, cannabis could ease. Studies have already proven that cannabidiol has, among others, an antiemetic effect, helping to combat nausea and lack of appetite typical of chemotherapy and radiotherapy.

It was the incentive that was needed. Bardas filed a writ of habeas corpus in order to plant cannabis and produce the oils necessary for his aunt’s treatment and his own without running the risk of being seen as a drug dealer because of it. Encouraged by the other cases he found in his research, he started to cultivate the plants.

Bardas just couldn’t imagine that the same Justice to which he appealed in search of a solution to his impasse in the exercise of the right to health was hiding a trap.

“The judge of first instance not only understood that habeas corpus did not fit, but also determined that both patients be investigated by the Federal Police and that an investigation be opened in the Regional Council of Medicine against the psychiatrist who prescribed cannabidiol for them”, says the lawyer. Gabriella Arima, who led the case with Cecília Galicio, both part of the Reforma Network, which brings together legal professionals working in the field of drug policy.

“It was a process in which there were major obstacles and even violations by the Judiciary. But these violations were later corrected by the sensitivity of the judges of the Federal Regional Court of the 3rd region, who reversed the decision”, she says.

As the Federal Public Ministry appealed to the two higher courts, after the decision of the STJ, an appeal remains pending in the STF (Supreme Federal Court).

For lawyer Emílio Figueiredo, a pioneer in Brazil in the use of habeas corpus to guarantee cultivation for personal medicinal use, the STJ’s decision confirms the thesis “of the use of criminal law to guarantee the right to health”.

“Instead of waiting for the police to arrive and take the evidence, the patient anticipates, produces his evidence and presents it to the Justice, confirming that those who cultivate cannabis for the purpose of medically supported treatment cannot be considered a criminal”, explains him, who is also a member of Rede Reforma.

Figueiredo recalls that the STF has two pending processes on the subject, a Direct Action of Unconstitutionality and an extraordinary appeal, and also criticizes the main project of the Legislature in the area, PL 399.

“Even with all the progress it makes, PL 399 is silent on the social fact that people cultivate cannabis for therapeutic purposes in their homes. Home cultivation is not even foreseen.”

For Arima, the decision reached by his client in the STJ “is important because it is the first by a superior court to recognize habeas corpus as a legal instrument to protect the safety and freedom of citizens who are patients, make medical use of cannabis and they want to grow their own plant”.

“Judicialization has been pursued by many patients, but the ideal is that we no longer need the Judiciary for this”, he adds.