More than a third of the persons convicted of drug use offenses in 2021 had arrived at court and were charged with human trafficking: 146 out of 424. This means that the court assumed that these 146 persons, who were allegedly found by the police with a quantity of various substances given the generic name “drugs” judged superior to the “average daily dose for 10 days”, they did not hold it to sell or give away (legal practice is to consider that giving up, even gracefully, “drugs” for others to consume is a crime of human trafficking) to others, but for one’s own use.
Yes, explains DN the criminologist and PS deputy Cláudia Santos, this is precisely the process that decriminalized all consumption and possession for consumption are, and was generally approved on July 7, aims to preserve. With, of course, a major change: consumer crime no longer exists.
That is, if the judicial authorities consider that there is no evidence of human trafficking in cases where someone has been “caught” with more than the so-called “dose over 10 ten days”, the case, depending on when that conclusion is drawn, filed by the Public Prosecution Service or by the examining magistrate, or the person is acquitted in court – regardless of the amounts found in their possession, these people can only be subject to an administrative offense, as since 2001 has happened to consumers in hold the amount for up to 10 days.
It was always, says Cláudia Santos, the second signatory of the project, whose first signatory is Eurico Brilhante Dias, the bank’s leader, always the spirit of the diploma that he defended in parliament on July 7 and which was approved with the favorable votes of the PS, IL, BE and Livre, PSD, PCP and PAN abstention and Chega’s vote against.
A degree aimed at making it impossible for ordinary consumers to be convicted, since Portugal, despite being designated twenty years ago through Law 30/2000 (which established the legal regime for the use of narcotic drugs), is known worldwide as the exemplary forerunner of the policy of decriminalizing drug use still today condemns hundreds of people each year for the same thing: consumption.
However, at the point of the discussion in the specialty, scheduled for next Wednesday, the parliamentary group decided to make an amendment to the project “to clarify it”. The reason, according to Cláudia Santos, is what she describes as “a very strange attack on the bill,” with criticism coming not only from the Intervention Service for Addictive Behaviors and Dependencies (SICAD), but also through its director, João Goulão . such as the Ministry of the Interior – whose minister, José Luís Carneiro, “recommends a lot of weight in terms of changing the considerations already foreseen and consolidated in the law -” and the judicial police. They all express concern over what they see as the “blurring” of the boundaries between consumption and trade.
‘We have not deviated an inch from our proposal’
The change, reported Tuesday by Público, consists of removing the adjective “mere” from the phrase “the acquisition and possession of substances for personal use (…) exceeding the amount required for average individual use during the period of more than 10 days only constitutes an indication that the purpose must not be consumption” and add another number to the aforementioned section 40 of the “Drugs Act”, saying: “In case of acquisition or possession of substances (…) exceeding the expected amount [de consumo médio diário para dez dias]if it is shown that such acquisition or detention is solely for personal use, the competent judicial authority, depending on the stage of the process, shall decide on filing, non-ruling or acquittal or referral to the Commission for the Discouragement of Drug Addiction.”
And Cláudia Santos illustrates: “The police find someone who has 20 doses of cannabis, ten more than the “necessary amount for the average individual consumption over the ten-day period”; send the person to criminal justice. If the Public Prosecution Service (MP ) ) or the criminal judge or the court, already at the stage of the trial, conclude that those 20 doses were for consumption, record or acquittal, depending on the stage of the trial. And he notes: “With this amendment, we are not millimeters deviated from our proposal. And we have in no way reversed the burden of proof, as some have suggested.” In fact, he clarifies, “in criminal proceedings there is no burden of proof, only in civil proceedings. In criminal proceedings the person is presumed innocent, so the MP has to prove the crime.”
This obviously means that in order to convict someone of trafficking, the court will need to have more evidence than the number of doses found in their possession (unless they alone prove they cannot be for personal use) – but this, as stated at the beginning of this text, is what happens every day with the current configuration of the law, as many people go to court charged with human trafficking based on the amount in their possession, and end up being convicted of consumption.
Has the director of SICAD changed his point of view?
Hence the change that SICAD would like to see in the project, according to Público, who emphasized that “the regime for administrative violations also applies to cases where the amount exceeds the estimate for average consumption over a period of 10 days,” as long as the judicial authority or the criminal police agency has no evidence whatsoever of the crime of trafficking in human beings” seems to ignore what appears from the data published by the agency itself: that precisely the conviction for trafficking in human beings always depends on proof of having committed the crime of human trafficking.
And that the evidence of the crime of human trafficking will have to be constructed on the basis of the evidence gathered – hence SICAD’s concern not to “question the activity of the criminal police and judicial authorities when they believe they are facing with a circumstance not of consumption, but of human trafficking,” Cláudia Santos expresses her bewilderment. “The function of SICAD, I believe, is not to deal with the needs of the police, but with the treatment of drug addicts.. ,” notes the deputy sheriff.
Created in 2012, after the extinction of the Institute of Drugs and Drug Addiction, SICAD is in fact a service of the Ministry of Health with the mission “to promote the reduction of the consumption of psychoactive substances, the prevention of addictive behavior and the reduction of dependencies”. On its website, it summarizes the spirit of the 2000 Act as allowing “drug use, acquisition and possession for personal use to cease to be a crime”, establishing “the Commissions for the Discouragement of Drug Addiction, which instead, criminal courts emerged as a state response to drug use”.
Furthermore, in statements to DN in 2019, SICAD’s director, João Goulão, described the existence of consumption convictions as “a biased understanding of the law: the aim was that consumption should not lead to conviction”.
Goulão defended “improving the law, closing this gap” and criticized the decision of the Supreme Court that in 2008, in response to a request for standardization of jurisprudence by the MP, ruled that the wording of the 2000 law should be be interpreted that anyone caught with more than the amount of drugs corresponding to the “average daily dose for 10 days” would be committing the crime of consumption.
‘Of the 10 doses, it is up to the judge to decide’
An appointment that several judges disagreed with, including Henriques Gaspar, who would become president of the Supreme from 2013 to 2018. He stated in his losing vote that he had no doubt that the criminalization of consumption had been expressly repealed by Law 30/2000, with the sole exception of maintaining cultivation for consumption as a crime: “Of the available elements of interpretation, none reason that would have led the legislator to want to continue to punish as a crime, in function of a purely quantitative criterion of product ownership, a behavior – consumption – that it decided to decriminalize.(…) The position that lapsed [no acórdão 8/2008] works entirely on an imagined model.”
Another loser was of the same opinion, Eduardo Maia e Costa. That the DN believed in 2019 that the only possible solution is “to clarify the issue through legislation as Article 40 is repealed once and for all. [que criminaliza o consumo] of Law 15/93”.
As for how the reference in law 30/2000 to the ten average daily doses should have been interpreted, it was very simple for the retired counselor: “From that border, the police send the case to the court, where it will be decided whether the doses were for consumption or for some other purpose. If they are believed to have been for consumption, the court sends them to the Commission on the Discouragement of Consumption [criada pela Lei 30/2000], because it is an administrative offense; if not, it will be assessed as a crime of human trafficking.”
An interpretation supported at the time by João Goulão: “The established limit of ten doses is intended to prevent the police officer from acting as a judge. The existence of this objective limit prevents the police officer from making a shortened judgment and deciding whether to a consumer or a dealer. After ten doses, it’s up to the court to decide.”
This solution, of course, falls short of what SICAD cites as one of the achievements of the 2000 Act – the replacement, in state response to drug use, of criminal courts by deterrence commissions.
Consumers caught with amounts in excess of those established on the basis of unclear criteria (what is “an average daily dose?”) – and that the courts themselves, as one prosecutor underlined to DN, don’t quite know how to interpret, whether it’s is about weight or active ingredient – will continue to face the criminal system.
Source: DN
