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STF authorizes the "marijuana march"

Wednesday, June 15th, 2011

In a unanimous decision (8 opinions), the Brazilian Federal Supreme Court (STF) has authorized the "marijuana march," which brings together protesters who gathered in favor of decriminalization of that drug. For the judges of the Supreme Court, the constitutional rights of assembly and of freedom of speech underline the realization of these marches. Many stressed that freedom of speech and expression can only be banned when it directly incites or provokes imminent illegal actions.

Under the decision taken at the judgment of ADPF 187 filed by the Attorney General's Office (PGR), article 287 of the Penal Code should be interpreted in accordance with the Constitution so as not to prevent public demonstrations in favor of legalizing drugs. That legal norm only defines as a crime the “apology of a criminal act" or of a "criminal perpetrator."

The opinion by the Dean of the Court, Minister Celso de Mello, was entirely followed by his colleagues. According to him, the "marijuana march" is a spontaneous social movement that claims, through the free expression of thought, "the possibility of democratic discussion of the prohibitionist model (of drug use) and of the effects that such model produces in terms of increased violence."

In addition, Minister de Mello considered that the event is of a clearly cultural nature, as it engages musical, theatrical and performing activities, and creates space for discussion of the topic through lectures, seminars and exhibitions of documentaries related to public policies linked to drugs, whether legal or illegal.

Celso de Mello explained that the mere proposal to decriminalize a particular criminal offense is not to be confused with the act of inciting the commission of an offense nor with the defense of a criminal act: "The debate on the abolition of certain punishable criminal conducts can be done in a rational manner with respect between the parties involved, even though the idea may eventually be considered by most to be strange, outrageous, unacceptable and dangerous," he pondered.

Even the he agreed with the Rapporteur, Minister Luiz Fux found it necessary to establish parameters for the realization of the demonstrations. Fux said that they should be peaceful, without the use of weapons and incitement to violence. They must be previously reported to public authorities, including information such as date, time, place and purpose of the event.

He added it was "imperative that there is no incitement, inducement or encouragement to the use of drugs" during the march and made it a point that there cannot be any consumption of narcotics at the event.

Finally, he stressed that children and adolescents can not be involved in these marches. "If the Constitution cared to provide protection for addicted minors, it is therefore corollary to such protection the constitutional purpose of avoiding as much as possible the contact of children and adolescents with drugs and the possible risk of an addiction," said.

At this point, the Minister Celso de Mello noted that the legal provision establishing the duty of parents over their minor children is a rule that imposes itself by its own authority. He added that restrictions imposed on events such as the "marijuana march" are determined in the Constitution itself.

Minister Carmen Lúcia Antunes Rocha followed the opinion of the Rapporteur citing the statement of an American jurist: “If we restrict liberty to attain security we will lose them both”. She expressed sympathy for street demonstrations and recalled that 30 years ago, her generation was prevented from expressing the change of government in Arinos Square, adjacent to the Faculty of Law, in Belo Horizonte (MG), where the minister graduated.

According to Carmen Lucia, it is necessary to ensure the right to comment on whether or not marijuana should be criminalized, because events like these may lead to legal change.

Freedom of assembly

Minister Ricardo Lewandowski made a point of calling attention to the opinion of Minister Celso de Mello who dealt with the legal status of freedom of assembly. For Lewandowski, that excerpt of the opinion is a notable contribution to the Dean of the Court's doctrine of civil liberties. After doing an analysis of what would be the drug, both today and in future, the minister said he understood not to be licit to restrain any legitimate discussion on drugs, provided they comply with constitutional dictates.

Ayres Britto already said that "freedom of expression is the greatest expression of freedom when gregariously exercised, because human dignity is not exhausted in the enjoyment of strictly individual rights, but when rights are collectively experienced rights."

Minister Ellen Gracie, in turn, reminded colleagues that she is a member of an international commission studying the decriminalization of drugs: "I am also relieved that my freedom of thought and of expression is guaranteed," she said.

To Minister Marco Aurelio, the decisions of the judiciary restraining the holding of public events in favor of legalizing drugs simply because marijuana is illegal is incompatible with the constitutional guarantee of freedom of expression: "Even when a collective agreement proves unlikely, the mere possibility of publicly proclaiming certain ideas match the ideal of personal fulfillment and demarcation of the field of individuality," he said.

Last to vote, the President of the Supreme Court, Minister Cezar Peluso, stressed that freedom of expression is a direct emanation of the supreme value of human dignity and a factor in the formation and improvement of democracy.

"From this point of view, (free speech) is a relevant factor in the construction of democracy and its upholding, whose prerequisite is ideological pluralism," he said. He added that freedom of expression "can only be banned when it is directed to inciting or causing imminent illegal action."

Finally, the President of the Court warned that "the State must, in deference to the Federal Constitution and to infra-constitutional law, and in all the meetings, take the necessary precautions to prevent possible abuse.” But he said: "This does not mean that freedom itself is not worthy of constitutional protection and of recognition by this Court."

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