Having items for the cultivation of cannabis for personal use is not a crime, points out STJ

In Brazil, the Bill of Law is being processed in the Chamber of Deputies 399/15 which provides for the legal cultivation of cannabis for medicinal, veterinary, scientific and industrial purposes. While the PL discussions go on, some facts stand out, such as the largest legalized herb plantation in the country. Now, this week, the Sixth Panel of the Superior Court of Justice (STJ) brought a new fact by establishing that owning items for planting the plant does not constitute a crime, under some circumstances.

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    With the last opinion, the STJ signed the understanding that the possession of objects for cultivation should not be covered by the Article 34 of the Drug Law, which provides for a penalty of three to ten years in prison for this type of crime. But this is only valid if it is possible to prove that the planting is done exclusively for one’s own use.

    Items for the planting of cannabis for personal consumption should not be framed as a crime (Image: Reproduction/Jeff W / Unsplash)

    Understand the case of the STJ on the cannabis planting items

    Based on this understanding, the ministers of the STJ granted a

    habeas corpus for a man caught with 5.8 grams of hash — a substance that is extracted from the leaves of

    Cannabis sativa — and eight cannabis plants were not prosecuted under Article 34 of the Drug Law. In addition, at the suspect’s residence, various materials for cultivation and tools for extracting oil from the plant were also found.

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    2006

    By the Article 34 of the Law 11.34/2006, it is a crime to “manufacture, acquire, use, transport, offer, sell, distribute, deliver in any capacity, possess, store or supply, even if free of charge, machinery, apparatus, instrument or any object intended for the manufacture, preparation, production or transformation of drugs.”

    Only this The law, according to the rapporteur of the case at the STJ, Minister Laurita Vaz, can only be applied in the event that the production of cannabis is destined for drug trafficking (Article 33 of the Drug Law). However, this understanding does not eliminate the possibility of penalty, but it can be given in other ways.

    Lighter feathers

    The article 28 of the same law provides for milder penalties, such as warning or provision of community services, for those who “acquire, store, store, transport or bring with them, for personal consumption, drugs without authorization or in disagreement with legal determination” .

    “Considering that the Article’s feathers 34 of the Drug Law are also applied to those who cultivate the plant intended for the preparation of a small amount of substance or product (oil), it would be a legal nonsense that the possession of objects intended for the cultivation of psychotropic plant, for personal use, came to characterize a much more serious crime,” said the minister in her vote, which prevailed in the end.

    For Vaz, having tools and supplies for the planting of cannabis is something to be expected for those who cultivate the plant for personal use, which is why “the possession of such objects is covered by the typical conduct provided for in paragraph 1 of the Article 15 of law 11.34/399939 and, therefore, is not capable of configuring an autonomous offense”.

    Source: Agência Brasil

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