Drug Policy and the Courts: A Brazilian experience

José Henrique Rodrigues Torres
Series Legislative Reform of Drug Policies Nr. 2
August 2009

dlrThis report is a personal response from the author on the issue of Drug Policy and The Courts. A year ago, in the author’s professional practice, he felt duty-bound to make a decision that overturned Brazilian case-law and ran contrary to domestic legislation as regards possession of controlled substances.

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This report is in response to a request by TNI and WOLA to Mr. José Henrique Rodrigues, Judge of the Sixth Appellate Court of the High Court of Justice in Sao Paulo, Brazil, to put in writing the reasons for making a decision to overturn Brazilian case law in a case on possession of controlled substances.

The importance of this issue has increased even more recently because the Supreme Court of Justice of the Argentine Republic, a neighbouring country, is about to enter a judgment in a similar case. The report also includes the Oporto's Declaration signed by the author together with nine other judges in July 2009, in which they level criticism at the current legal and legislative system.

Key Points

  • The criminalization of drug possession for personal consumption:
    - is still approached from the repressive point of view;
    - brings with it countless violations to constitutional principles and guaranties as well as of human rights which should, on the contrary, be guaranteed by ourdemocratic legal system;
    - It exceedingly hinders or obstructs the action of assistance and preventive policies that aim to reduce damages;
    - has dubious legal and criminal sustainability.
  • The legal decisions that raise objections to the current drug policy may transform the legal reality currently in force in order to lead the legal system towards its democratic normality, in harmony with constitutional principles.