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Descriminalização das drogas no Brasil e além (2)

Version vom 11. September 2016, 15:30 Uhr von Tiao (Diskussion | Beiträge) (→‎Literature)

Brazil at the Crossroads

Bibliography

A Global View

The contemporary system – or global drug prohibition regime – is constructed upon a suite of UN treaties. Dating back to 1912, these treaties aimed to eliminate the non-scientific and non-medical production, supply, and use of narcotic and psychotropic drugs. The treaty-based system developed on the basis of two interconnected tenets: the belief that the best way to reduce problems caused by illicit drug use is to minimise the scale of the illicit drug market; and that this can be achieved through a reliance on prohibition-oriented supply-side measures.

The Framework

Like most UN treaty-based regimes, a number of organisational actors oversee its various aspects. Key among these is the Commission on Narcotic Drugs (CND), which is the central policy-making body. The CND consists of 53 member states, and is assisted by the World Health Organization (WHO) and the International Narcotics Control Board (INCB or the Board). The Board is the self-described independent and quasi-judicial’ control organ for the implementation of the treaties. It assesses worldwide scientific and medical requirements for scheduled substances and monitors compliance with the relevant conventions. Both the CND and the INCB rely on the United Nations Office on Drugs and Crime (UNODC) – the UN agency responsible for coordinating drug control activities – for administrative and technical support.

Within this framework, textual ambiguity and subjective legal interpretation allow certain leeway in formulating national policies. Yet flexibility is limited. Consequently, while there has long been variation in national policies – a spectrum ranging from quasi-legal coffee shops in the Netherlands to zero-tolerance policing elsewhere – the regime greatly restricts national freedom of action. For example, no member state can create a regulated cannabis market for recreational use and still remain within treaty boundaries. Moreover, the conventions generate a powerful ‘background prohibitionist expectancy’ on nations regarding personal drug use.

Although it is ultimately a multilateral construct, the shape and operation of the current treaty system is very much a result of American endeavour. The prohibitionist norm at the heart of the regime owes much to the successful internationalisation of the United States’ domestic approach – namely, that the recreational use of certain substances is morally wrong. Furthermore, the near universal levels adherence to the regime cannot be divorced from Washington’s support. States obviously perceive benefits from regime membership.

Regime Weakening

Harm Reduction & Human Rights

Over the years the negotiations involved deadlocks, filibustering, heated side discussions, extended sessions and, on at least one occasion, tears before home time. On many occasions judicious use of the phrase ‘reducing the adverse health and social consequences of drug abuse’, as agreed in the 1998 Political Declaration, eventually secured agreement, but as the decade wore on it was becoming clearer that there were deepening cracks within the so-called Vienna consensus.

Debates over harm reduction also did much to highlight the increasing tensions between the drug regime and the UN’s broader position on human rights. This was particularly the case in relation to the Board, as it became increasingly out of step with other UN bodies interacting with the drug issue, for example UNAIDS and the UN Development Programme, but also with the basic human rights principles of the UN system. However, that the UNGASS decade only saw one CND resolution dealing with human rights, itself fiercely debated, underscored the fact that not all states believed human rights had a place in discussions on drug policy.

The fragile façade of consensus within the CND was finally broken at the High Level Segment (HLS) of the Commission’s 2009 meeting, which intended to conclude the review of the UNGASS Decade and to agree the new Political Declaration and Action Plan. Echoing its 1998 predecessor, the document reaffirms the regime’s prohibitionist goals, to ‘actively promote a society free of drug abuse.’

However, not all member states were content with the Declaration. With a delivery that brought the conference room to a standstill, the German Ambassador addressed the delegates. He slowly listed twenty-six, predominantly European states (IS 26), that wished to add an Interpretative Statement to the already agreed Declaration (Australia, Bolivia, Bulgaria, Croatia, Cyprus, Estonia, Finland, Georgia, Germany, Greece, Hungary, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Saint Lucia, Slovenia, Spain, Switzerland, and the UK).

Having failed to secure the inclusion, or even a clarifying footnote referring to harm reduction within the document, the Statement declared that they will interpret the term ‘related support services’ used in the Political Declaration and Action Plan as including measures which a number of states, international organisations and non-governmental organisations, call harm reduction measures.’ This unprecedented step was a public demonstration of the fact that any remaining consensus among regime members on how to approach problematic drug use had been shattered.

The introduction of the Interpretative Statement by the IS-26 was undoubtedly one of the more noteworthy events of the UNGASS decade. It also revealed much about the nature of the system in 2009. As was to be expected, it was not well received by prohibitionist states – the United States and the increasingly important Russian Federation, in particular. To this group, it further undermined the essential tenets of treaty system.

However, it is important to note that despite widespread engagement with a range of harm reduction measures, only twenty-six states signed the Statement. This number represented about one third of States pursuing syringe exchange programmes. While perhaps to some extent a result of a frantic negotiating environment, this disconnect represented a pragmatic calculation of costs. Although not even challenging the normative fabric of the regime, only twenty-six states felt it important enough to expend political capital on. To the rest of the members, the costs – either reputational or in terms of relations with Washington – exceeded the benefits. Moreover, it is likely that a degree of free riding was at play, with some harm reduction oriented states content to allow others to move the issue forward.

Cannabis

The consideration of specific national interests is also central to understanding UNGASS Decade debates around another key area of contention – cannabis. After a period of relative policy stability during the 1990s, the UNGASS decade saw increasing numbers of states apply alternative measures to criminal prosecution for personal drug possession. Within this context cannabis unsurprisingly became a significant point of CND discussion between 1998 and 2009. There was an increasing level of soft defection among regime members with respect to the issues of ‘decriminalisation’, ‘depenalisation’, and especially with medical marijuana schemes. In quantitative terms, the number of cannabis-specific resolutions at the Commission was comparable to that relating to drug use and HIV/AIDS. However, the forceful and proactive support for harm reduction by some nations within the CND was not apparent for cannabis. On the contrary, delegates from soft-defecting states generally found themselves fighting a rearguard action. Interventions within debates and negotiations on the text of resolutions were often reactions to attacks on perceived leniency from prohibition-oriented nations. Rather than actively seeking to legitimise national level policy choices, the priority was to defend them. In many ways then, the cannabis issue created a reversal in roles to those witnessed during discussions of harm reduction and HIV/AIDS.

Moreover, attacks from certain member states were often closely related to the criticisms of soft defection emanating from the UN’s drug control apparatus. Both the INCB and UNODC, played an important role in shaping and in some instances steering, even stifling, debate on the issue within the CND.

For example, although the Dutch coffee shop system had long been the focus of the Board’s disapproval, the UNGASS decade saw it widen the scope of its ire in response to a growth in tolerant policies elsewhere. Criticism came in the form of a diligent producer versus ‘lenient’ consumer state narrative. From this perspective, traditional consumer states deviating from a punitive approach to the possession of cannabis for personal use were set against producer states that were portrayed as trying their best, within the spirit and the letter of the treaties, to suppress the illicit trade. Admittedly a view with some validity, this gained traction with countries like the US, Sweden and Japan, who opposed the liberalising trend on ideological grounds, as well as with North African and Gulf States, some of which were more functional in their outlooks and hoped to secure funding for cannabis control efforts. Interestingly, while the CND’s consensus environment worked against soft-defecting states in relation to resolutions on HIV/AIDS, it also worked in favour of regime members favouring tolerant cannabis policies. All seven resolutions on cannabis adopted during the UNGASS decade were introduced by prohibitionist-oriented nations with the intention of tightening control. However, states including Portugal, Spain, Italy, Canada and the Netherlands were successful in ‘flattening’ the language and removing mention of the criminalisation of cannabis use for non-medical purposes. The goal of several resolutions, this would have significantly expanded the scope of the treaties and gone beyond the requirements of the 1988 convention which does not specifically oblige Parties to criminalise drug use.

Bolivia and the Coca Leaf. In what is now regarded by many analysts as an historical error, the coca leaf is included in schedule I of the Single Convention, alongside drugs such as heroin and cocaine. This is despite the ancient and socially-ingrained place of coca chewing and coca tea-drinking within many Andean countries. The Convention bans coca chewing but initially allowed countries a temporary exemption under article 49 to phase out the practice within twenty-five years. With the Convention coming into force in 1964, this deadline expired in 1989. The ongoing practice of coca chewing led the Board to examine the issue and suggest that states move to resolve the discrepancy in the 1990s. This occurred in light of inconsistencies between articles in the Single Convention and the 1988 Convention, regarding traditional licit uses of drugs. With scientific studies on the health implications of coca chewing disappearing without trace within the UN system in the late 1990s, the Board’s position began to alter. During the UNGASS decade it became reluctant to highlight the tensions surrounding coca or to encourage the CND and WHO to resolve the matter. Instead, the Board became increasingly critical of coca policy in a number of Andean states, escalating its condemnation of both traditional uses as well as of the industrialisation of coca products.

Within this context, the INCB expressed particular concern over Bolivia’s desire to remove the confusion over the legitimacy of ongoing domestic coca chewing and adjust coca-related provisions within the Single Convention. For the officials in La Paz, an amendment of article 49 to remove references to the transitional period was a serious but necessary step. Unlike other states that on other occasions had been able to reduce various costs associated with regime membership via soft defection, article 49 of the Convention provides no wiggle room where coca chewing is concerned. Bolivia’s unprecedented move consequently differed to the soft defections over harm reduction and cannabis since it would have gone beyond regime weakening and represented a change, albeit ostensibly relatively minor, of the regime itself. Bolivian coca policies and laws had been under review since the 2005 election of President Evo Morales, a former coca farmers’ leader and himself a coca chewer. Morales raised the profile of the issue, resulting in the unusual appearance of a head of state at the CND on a number of occasions. The INCB quickly adopted a combative and oppositional stance within its annual report and through statements by its President. Despite pressure from the Board, which was further bolstered by opposition from the US, Morales himself used the platform of the HLS to formally announce that Bolivia would begin the necessary legal steps to end the prohibition of traditional uses of coca. He did so despite Bolivia’s inclusion on the list of states to be considered for de-certification in 2008. After many twists and turns, this was to lead to the most significant challenge to the UN drug control regime since its inception in 1961.

How then do we sum up the UNGASS decade? It was certainly a period of regime transformation. But rather than a widespread and anterior challenge to the treaty system, this took on the form of a subtle change within the regime whereby a growing number of Parties deviated from the prohibitive norm at its core. In terms of national interest, most states were reluctant to expend political capital and thus incur the various costs associated with working towards a more substantive change of the regime. The resultant process of regime weakening played out in a number of ways at the Commission. Some states were willing to work for the legitimisation of harm reduction via inclusion of the principle, if not the term, in CND resolutions and ultimately fight for addition of the phrase itself to the official record through the Interpretative Statement at the HLS. Conversely, some of the same states kept a low profile for domestic cannabis policies, but fought to ensure their policy space was defended from prohibition-oriented states and some parts of the UN drug control apparatus – particularly the increasingly belligerent INCB.

The closing years of decade, however, also demonstrated that not all states were able to pursue revised national interests through a process of soft defection. For its own very specific set of reasons, Bolivia became the first Party to move for an amendment of any of the treaties and initiate a formal change of the regime. This triggered a hostile response from a range of countries. Indeed, beyond the very public rebukes from the Board, concerted opposition in 2010-11 from a US led ‘Group of Friends’ of the conventions, including some from the IS-26, blocked attempts to amend the Single Convention.

This left Bolivia with no other option than to withdraw from the treaty and to re-accede, with a reservation on coca – an unprecedented process that remains ongoing. It also revealed that, having achieved their aims in relation to harm reduction, many states from the IS-26 had no interest in further rocking the boat for an issue with no obvious benefit to them – a decision no doubt influenced to some extent by Washington’s stance on the issue.

That said, more recent events in Latin America suggest that Bolivia may not be alone in moving beyond the practice of soft defection that characterised the UNGASS decade. Escalating levels of drug-related violence within the region has resulted in a reassessment of current policies at the highest levels. This has involved a commitment to discuss all options, including regulated markets. More specifically, in June 2012 President José Mujica of Uruguay announced his intention to establish a government monopoly to control cannabis for recreational use, a policy option that is forbidden under the current treaty framework. Perhaps, then, we are witnessing the beginnings of a more direct challenge to the regime and a point of debate that will become increasingly prominent within the CND in the years leading to the next high-level review of 2019.

Literature

  • Bewley-Taylor, David R. & Cindy Fazey (2003) The Mechanics and Dynamics of the UN System for International Drug Control. London: Forward Thinking on Drugs.

Diverging Tendencies

Zero Tolerance Systems

The Draconian Way: South-East Asia and Saudi Arabia

Malaysia: Under section 39B of the Dangerous Drugs Act, those in possession of 15 g or more heroin and morphine; 1,000 g or more opium (raw or prepared); 200 g or more cannabis; and 40 g or more cocaine will receive the mandatory death sentence. The courts have affirmed that to establish prima facie drug trafficking, it has to be shown that the accused party was in actual possession of the drug and that the person has to have knowledge that they were in possession of the dangerous drug. Once the death sentence has been passed, the sentence shall be passed on to the chief minister of the state where the judgment was given where a note about the evidence used in the case and a report about the judges opinion of the sentence would be included. The minister then has a choice of either fixing a time and place for the execution to be carried out or may substitute in a lesser punishment if the minister wishes. - The courts though have noted the severity of the sentence and in several instances have tried to impose a lower sentence where possible. One of the methods employed by the court would be to ensure that the procedures set out for the sentence have been strictly adhered to by the prosecution. The court in that case paid close attention to the evidence presented to ensure that the judgment made was the right one. The court has also acquitted a person when the reported amount of drugs seized was only slightly different from the amount of drugs received by the forensics lab chemist. The difference in amount was 10.21 grams.

Singapore: has among the toughest on the books. The country's strict Misuse of Drugs Act punishes possession of even miniscule amounts of illegal drugs, and prescribes execution if you're found guilty of carrying large amounts of particular types of drugs. Under the Misuse of Drugs Act, the burden of proof lies on the defendant, not on the government. If you're caught with large amounts of drugs, you are simply presumed by law to be trafficking. It goes even further - if you own a house or a car in which illegal drugs have been found, you are presumed under the law to have possession of the drug, unless you can prove otherwise.

The Lawless Way: The Philippines

Literature

The Special Case of the United States

Literature

Tolerant Systems

Portugal

(1) The main drug law in Portugal is Decree Law 15/93 of 22 January 1993, which defines the legal regime applicable to the trafficking and consumption of narcotic drugs and psychoactive substances.

The Portuguese legal framework on drugs changed in November 2000 with the adoption of Law 30/2000, in place since July 2001, which decriminalised illicit drug use and related acts, but maintained drug use as an illegal behaviour, with respect to all drugs included in the relevant United Nations conventions. However, a person caught using or possessing a small quantity of drugs for personal use (established by law, this shall not exceed the quantity required for average individual consumption over a period of 10 days), where there is no suspicion of involvement in drug trafficking, will be evaluated by a local Commission for the Dissuasion of Drug Addiction, composed of a lawyer, a doctor and a social worker. Sanctions can be applied, but the main objective is to explore the need for treatment and to promote healthy recovery.

Drug trafficking may incur a sentence of 1–5 or 4–12 years’ imprisonment, depending on specific criteria, one of them being the nature of the substance supplied. The penalty is reduced for users who sell drugs to finance their own consumption.

A new Decree Law 54/2013 was adopted in April 2013. It prohibits the production, export, advertisement, distribution, sale or simple dispensing of new psychoactive substances (NPS) named in the list accompanying the Decree Law and sets up a control mechanism for NPS. Administrative sanctions including fines of up to EUR 45 000 are anticipated for offences against this law, while a person caught using NPS, without a suspicion of another offence, is referred to a local Commission for the Dissuasion of Drug Addiction.

Go to the European Legal Database on Drugs (ELDD) for additional information.


(2) A experiência da Holanda com sua política quanto às drogas até recentemente era a melhor fonte de indícios quanto a abordagens alternativas para a política ortodoxa de proibição às drogas. Na Holanda, a compra, posse e consumo de maconha, ainda que continuem a ser crimes, foram descriminadas na prática (Cohen et al. 2004: 836). Cohen et al. compararam os índices de uso de maconha em Amsterdã e em San Francisco, onde o uso da droga continua criminalizado, e constataram que o uso da droga na cidade norte-americana era superior ao encontrado na capital holandesa, o que sugere não haver prova de que a criminalização coíbe o uso (Hobbs, Mena 838-841).

No entanto, Portugal emergiu como exemplo mais completo, por ser o primeiro país da União Europeia a ter descriminado a compra, posse e consumo para uso pessoal (definido como quantidade média para 10 dias de uso) de todas as drogas, ainda que o tráfico continue criminalizado. A política portuguesa foi implementada em 2001, à luz da deterioração dos problemas com as drogas nos anos 90, especialmente no que tange à heroína. No seu estudo sobre o caso português, Greenwald (2009) afirma que o ímpeto político para a descriminação veio da percepção de que os principais obstáculos a políticas efetivas de administração dos problemas de drogas eram as barreiras ao tratamento e o consumo de recursos impostos pelo regime de criminalização. Greenwald reconhece que a descriminação "não teve efeito adverso sobre os índices de uso de drogas em Portugal, os quais, em numerosas categorias, estão agora entre os mais baixos da União Europeia" (Greenwald 2009: 12). Especialmente se comparado a Estados com regimes severos de criminalização, o uso decaiu entre os adolescentes e subiu um pouco entre os jovens adultos. O número de casos novos de HIV/Aids reportados entre usuários de drogas também caiu significativamente, bem como a mortalidade relacionada às drogas, e a descriminação liberou recursos que foram canalizados para tratamentos e outros programas de redução de danos (Ibid). Portugal: Effective July 2001, personal use of LSD was decriminalized by Law 30/2000. Possession of less than 500 ug is not regarded as a criminal offense, though the substance is liable to be seized and the possessor can be referred to mandatory treatment. Sale, or possession of quantities greater than the personal possession limit, are criminal offenses punishable by jail time.

Literature

Czech Republic

The new Czech Criminal Code, which came into force in January 2010, introduced a brand new sig­nificant feature into the Czech legal system – the differentiation between cannabis and other nar­cotic drugs and psychotropic substances. As a consequence lower penalties for offences related to cannabis were set. Cultivation and distribution of cannabis is still a criminal offence punishable by one to eight years of imprisonment (depending on the quantity). The exception for amounts not “greater than small” applies to cannabis as well. Possession for personal use of such an amount is only a misdemeanour punishable by a fine but not by imprisonment. The Czech Supreme Court ruled that amount “greater than small” of herbal cannabis equals 10 grams of dry matter.

How many plants can be grown without facing the possibility of imprisonment still needs to be decided – the governmental directive that set this amount at up to 5 cannabis plants has been abol­ished by the Constitutional Court’s ruling, but the Court did not set a the number of plants in the above mentioned binding decision. The situation for a user cultivating cannabis for personal use is very confusing. The user commits a crime under Section 285, for which there is a criminal penalty of between six months and five years imprisonment,12 but after harvesting the cannabis and during the process of drying it, the offender is “producing marihuana” under Section 283 for personal use and faces a penalty of between one and ten years imprisonment. If the plants have already been dried, the offence will be classified as possession for personal use under Section 284, and is punishable with a maximum penalty of impris­onment for eight years. Possible problems arising from assessing the relationships between the devel­opmental stages of these crimes are not mentioned. Cannabis users receive more lenient penalties only if they are ‘caught’ before or after drying the cultivated plants.

Literature

Uruguay

Drug consumption is not a crime in Uruguay. On 20 December 2013, Uruguay became the first country in the world to legalise and regulate cannabis when President José Mujica enacted Law 19.172. This act regulates the production, marketing and consumption of cannabis. The state would henceforth control the entire cannabis industry chain, from production to consumption.

They Uruguay Cannabis Clubs (UCCs) constitute one of three ways to obtain cannabis under the new cannabis regulation laws. These organizations, formed by up to 45 adults and with a legal limit to grow up to 99 plants, appear to provide a safe method of procuring cannabis in a country that is trying to regulate aspects of cannabis production and distribution.

Nearly two and half years after becoming law, Uruguay’s pioneering plan to regulate every level of the national market for cannabis is finally on the verge of taking shape.

(1) The two companies that won contracts to grow cannabis for commercial purposes have planted their first crop, meaning that Uruguayan adults should be able to purchase cannabis for non-medical use at sales points in pharmacies in late 2016.

(2) Uruguayan authorities have announced an agreement with every major pharmacy association in the country that outlines the security, storage and distribution requirements for interested pharmacies. This agreement represents a crucial step forward, as it tasks pharmacies themselves with responsibilities that have been left pending since the passage of the law, such as the distribution of the product from cultivation sites to points of sale.

These developments add to the progress already being made with respect to the other two forms of legal access to cannabis: home growing and clubs. The Institute for the Regulation and Control of Cannabis (IRCCA) began issuing cultivation licenses to home growers in August 2014 and started registering cannabis clubs in November of that year. Today, more than 4,400 Uruguayan households are legally growing up to six cannabis plants in their homes, and members of 17 registered cannabis clubs around the country can access cannabis cultivated by their cooperatives.

Other elements of the law are moving forward as well. To prevent spillage into the black market, a new software system has been developed for use in participating pharmacies, in which registered users will be able to purchase cannabis by providing fingerprint scans. The Ministry of Health is currently mapping out a plan to implement a medical cannabis system, and industrial hemp production is also underway.

This is not to say that Uruguay’s deliberate pace has meant flawless implementation. Indeed, with no precedent for what they are is attempting, Uruguay’s authorities are aware that missteps are inevitable. The question is not whether mistakes will be made and weaknesses revealed, but whether Uruguay can recognize and resolve the problems that do arise.

There are important concerns, for example, about whether the IRCCA has an adequate budget and staff to fulfill its responsibilities, and whether Uruguay’s police are familiar enough with the new law and its implications for their enforcement practices.

Until the passage of a December 2015 budget, the IRCCA had been operating on a shoestring. The current budget sets aside roughly $518,000 USD annually for the agency, and authorities say that these resources will be supplemented with licensing fees assessed on the companies producing commercial cannabis for sale in pharmacies. It remains to be seen, however, if IRCCA will have the staff and resources to effectively monitor home growing and cannabis clubs.

Uruguay could also stand to improve levels of police familiarity with the law. News reports of police seizures of apparently law-abiding home growers, as well as complaints by cannabis club organizers of unfounded police interference in their efforts, are signs of a lingering disconnect between the letter of the law and how it is enforced. In August 2015, the Uruguayan Ministry of Interior released a “police action protocol” detailing standard operating procedures for police encounters involving cannabis, which allows for growers to possess multiple non-flowering cannabis plants, and states that only the suspicion of trafficking should merit police involvement. However, it is clear that police across Uruguay’s 19 departments should be made more familiar with the procedures.

Despite these shortcomings, it is important to keep perspective. Judging the law’s impact now, before commercial sales have even gone into effect, is premature. Uruguay’s cautious implementation of the law has given authorities time to adapt their bold regulatory project to some of the biggest challenges faced by legal cannabis initiatives around the world. As full implementation gets underway later this year, new and unforeseen challenges will arise, and the question will be whether Uruguayan authorities can continue to learn as they go.

Literature

Socio-Legal Analysis

The Sociology of (De-) Criminalization

The Level of Violence (High Crime Societies)

The Nature of Political Authority (Verticality, Autocratic Rule, Authoritarianism)

Douglas Husak's Concept of Overcriminalization

Literature
  • Husak, Douglas (2013) Sobrecriminalización. Los límites del. Derecho penal, Marcial Pons, Madrid - Barcelona, 2013
  • Recensión a Husak, ...

Juridical Aspects

Bem Jurídico

Causalidade Cumulativa

Delitos de Perigo Abstrato

What would a drug have to look like to be a legitimate object of prohibition?

Drug Policy as a Summary Symbol

The Open Society Concenpt

Compensation (wrongful convictions)

The Dual State Concept

Doppelstaat

Bibliography

See also

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