More of one third of those convicted of drug use offenses in 2021 had arrived at court charged with human trafficking: 146 out of 424. This means that in court it was considered that those 146 persons, allegedly found by the police with a quantity of various substances that were given the generic name “drugs”, were judged to be superior to the “average daily dose for 10 days”. , they held it not to sell or give (judicial practice is to consider that giving, even graciously, “drugs” for others to consume is a crime of human trafficking) to others, but for their 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.
Although, on the eve 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 qualifies as “a very strange charge on the account”, with criticism coming not only from the Addictive Behavior and Dependency Intervention Service (SICAD), through its director, João Goulão, but also from the Ministry of the Interior – whose minister, José Luís Carneiro, recommended “paying close attention to the wording amending the recitals already provided for and consolidated in the law -” and of the judicial police. All show concern about what they see as the 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: “Police find someone who has 20 doses of cannabis, plus ten more than “the amount needed for an average individual consumption over a ten-day period”; refer the person to criminal law. If the Public Prosecution Service (MP) or the investigating judge or the court concludes already at the stage of the trial that those 20 doses were for consumption, they will be charged or acquitted, depending on the stage of the trial.And he notes: “With this amendment we are not deviating an inch from our proposal. And in no way have we 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.”
Of course this means that the court will need to have more evidence than the number of doses found in their possession to convict someone of human trafficking (unless they prove they are not for personal use) – but as stated at the beginning of this text that is what happens every day with the current configuration of the law as many people come to court accused of human trafficking based on the amount they have in their possession, and are ultimately 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.
Is that the evidence of the crime of human trafficking will have to be built on the basis of the evidence collected – so SICAD’s concern “not to call into question the activity of the criminal police and judicial authorities when they consider that they are dealing not with consumption, but with trafficking in human beings”, perplexes Cláudia Santos. “The function of SICAD, I believe, is not to deal with the needs of the police, but with the treatment of drug addicts…” the deputy notes.
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, eliminating 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, established that the wording of the 2000 Act should be interpreted as meaning that anyone caught with more than the amount of drugs corresponding to the “average daily dose for 10 days” committed 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 only this exception, i.e. maintaining as a crime cultivation for consumption: “Among the available elements of interpretation, there is no reason whatsoever that would have led the legislature to want to continue to punish as a crime, based on a purely quantitative criterion of product ownership, a behavior – consumption – which it decided to decriminalize (. . . .) The position that expiration made [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 by João Goulão: “The established limit of ten doses is to prevent the police from acting as a judge. The existence of this objective limit prevents the police from making a shortened judgment and deciding whether to treat a consumer or a dealer state. 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 principle – the judicial system will continue to confront.
On the other hand, the option of the PS to reformulate Article 40 of the 1993 law – which Law 30/2000 had repealed “except for cultivation” and which Eduardo Maia e Costa proposed to repeal completely – gives rise to doubt that the DN posed for Cláudia Santos and that the deputy did not clarify: why she did not propose to change number 3 of this article, which states that “as the broker [do cultivo] If you are an occasional consumer, can you be exempted from a fine”?
Why should a “non-occasional”, ie very frequent, daily or even “dependent” consumer be penalized more for growing for consumption than someone who consumes only sporadically? Besides, why should having a vase or two of cannabis plants in the house be a crime, if you have the same amount (or more) of the same plant, if you buy it on the illegal market for your personal use, right?
Source: DN
