Everything you need to know about current cultivation laws in Brazil and their prerogatives is here! Rede Reforma lawyers answer the questions we received on our Instagram.
One of the topics that most brings doubts to our followers is the planting of cannabis. Growing your own plants is a good way for those who want to know exactly what they are consuming, to reduce damage, and to get closer to nature – we already talked about the various benefits of growing your own cannabis in our first text in the series.
“But how do you do it in a prohibitionist context?”
According to our laws, we are, in fact, prohibited from planting marijuana in Brazilian territory – whatever the amount or purpose of the herb. But, like many other laws, there are other factors to take into account. Cloudy issues, such as the limit quantity to differentiate between users and drug dealers, racial issues, mass incarceration, conflicts of interest are some of the points that most raise doubts about what we can and cannot do in the legal view.
To guarantee all the legal support for those interested in the subject, we spoke with the lawyers of Rede Reforma, women specialists in drug policies. Here, they answer the main questions that arose on our Instagram! Nothing better than being able to ask women strategies for increasing our security, isn’t it? After all, getting informed means reducing harm and knowing your rights too!
Do you want to know more about what you can and cannot do in growing cannabis? Come and dive with us in this fervent theme.
But before that, special thanks to the sisters of the Reformation! Cecília, Brisa, Débora, Erika, Gabriella, Lucia, Marcela, Mariana, Nathalia and Raquel – thank you for contributing so much valuable information and reducing vulnerabilities. Knowing that you exist and continue in this fight to guarantee rights makes us believe in a country with a fairer drug policy!
Thank you! The contact details of each of them follow at the end of the post.
Message from the lawyers
“We, lawyers at Rede Reforma, have to say that, unfortunately, we live in an extremely unequal country, guided by structural racism and the police approach and the treatment of the Judiciary will always be different for peripheral black women, being the biggest victims of the current drug policy and the so-called “war on drugs”. It is alarming that the reason for the arrest of 59.9% of women arrested in Brazil is for crimes related to drug trafficking. The intensification of debates around the mass incarceration of vulnerable people, and how the State deals with public health, which is the legal object of the drug law, has been instrumental in understanding how harmful prohibitionism is for all. Therefore, aware of reality, injustice and, above all, inequality, all the recommendations made here need to be considered in the case of each particular sis. ”
ABOUT HABEAS CORPUS
1) What is a Habeas Corpus (HC) and what is it for?
“The HC in the preventive modality guarantees the patient’s freedom and the preservation of the cultivation in case of any police action.”
Habeas corpus is a constitutional action that aims to guarantee the right of freedom of individuals, when they are threatened or in any way restricted. It can be requested by anyone, it is not necessary to be a lawyer to bring a habeas corpus in favor of yourself or someone else. In the case of people who do domestic cultivation of Cannabis for medical use, HC in the preventive modality guarantees the freedom of the patient and the preservation of its cultivation in case of any police action.
2) What is the necessary documentation to obtain a Habeas Corpus?
The main documents used to instruct the HC are the following: prescription and medical report, authorization from ANVISA and the product budget, to prove the cost of the import. The Reformation publishes a script, but, in summary, the most important thing is the monitoring by a doctor, who attests to the condition and demonstrates, through a report, the patient’s health history, the importance of using Cannabis in improving his condition clinical, in addition to other documents that reinforce this narrative, such as previous prescriptions, reports from other doctors, nurses, therapists, physiotherapists, among other professionals.
3) How much does it cost on average for a Habeas Corpus to self-cultivate medicine?
There is no provision for payment of court fees, and in general the amount depends on the lawyers’ fees, which vary between the realities of the professionals or according to the fee table established by the state Bar Association (Brazilian Bar Association). The Public Defender’s Office acts free of charge and has acted in favor of the most vulnerable people by joining Habeas Corpus in some States (SP, RJ, PE and RO), so it is possible to access this service for free. It is worth remembering that REDE REFORMA acted, also free of charge (pro bono), in most of the cases in which it has participated until today, guaranteeing access to health for people in need, regardless of their financial capacity.
4) How long does the Habeas Corpus process take on average?
There are several steps that depend on several factors. It takes the patient some time to prepare the complete documentation, and depending on the case, there are many documents, and the complexity of the case impacts on the time of preparation of the case by the lawyers. After entering the process, it is common for it to be decided, on a preliminary basis, within a few days, if other supporting documents are not required by the competent court. For the final sentence, in turn, it takes much longer, on average more than a year.
5) Can a person with Habeas Corpus plant elsewhere in an emergency, like a pandemic?
Each habeas corpus is unique and serves only the patients indicated in the decision. There is no specific rule, but, in the specific case, it is possible to request the authority that granted it, which will decide based on the arguments brought by the lawyer to the court.
6) Is there a possibility of obtaining Habeas Corpus for people with autism even without other comorbidities?
Yes. The possibility exists for any disease that a doctor recommends treatment with a cannabis product and the person is able to prepare at home and prove the improvement in the clinical picture.
7) Is there a possibility of obtaining legal permission for self-cultivation other than for medical reasons?
This should be a close achievement. The legalization and regulation of Cannabis can come as much through the ongoing trial in the STF, around the decriminalization of the personal possession of Cannabis for consumption, as it can come through the performance and creative litigation of lawyers, in a successful case, as was the case of HC for the protection of domestic cannabis cultivation for medicinal purposes.
8) Currently, what diseases have Habeas Corpus been granted for?
Most HCs granted guarantee the continuity of medical treatments for epilepsy and chronic pain, but there is an increasing expansion of this list of diseases, which today has: cancer, depression / anxiety / chemical dependency, autism, sclerosis, parkinson’s disease, arthrosis, bilateral pigmentary retinosis, insomnia and microcephaly.
9) Is there a likelihood of self-cultivation for patients who treat anxiety and depression?
Yes. Today, in Brazil, there are three habeas corpus guaranteeing the legitimacy of domestic Cannabis crops for medicinal purposes for the treatment of insomnia, anxiety, depression and chemical dependency.
10) What are the means for growing CBD in Brazil?
It is important to clarify that CBD, or cannabidiol, is one of the cannabinoids present in the Cannabis Sativa plant, as well as THC and dozens of others. Thus, it is not correct to talk about cultivation of CBD, as naturally it is not possible to plant separately the active components of a plant, but the plant as a whole. Therefore, talking about CBD cultivation is talking about Cannabis cultivation itself, which if turned to a proven medicinal use, it is possible to be protected through the preventive Habeas Corpus route.
GENERAL LEGAL ISSUES ABOUT CANNABIS CULTIVATION
11) How to differentiate users and dealers?
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“In Brazil, there is no differentiation between user and dealer by objective criteria (such as quantity).”
In Brazil, there is no differentiation between user and dealer by objective criteria (such as quantity). In practice, this criterion is political, and determined only by the police, who are the only witness in 67% of cases, and in conjunction with a number of factors, such as the person’s skin color and zip code. Unfortunately, even in the case of a small quantity, social class and income will be the determining factors in judging whether it is trafficking or use.
12) And on the issue of home cultivation?
Whoever grows marijuana for the purpose of personal use, is subject to the same penalties as those who carry the drug for consumption. The difference is that in this case, according to § 2 of art. 28 of the Drug Law, the judge will analyze the nature, quantity of the substance, the location and the social and personal conditions of the agent. It is a huge range of problems that can be aggravated if the number of plants exceeds a proven personal consumption logic.
13) And can having a scale at home be harmful?
The scale is used on a recurring basis to confuse users and cultivators as traffickers in legal proceedings. Justifying the presence of a scale with marijuana or its cultivation is a difficult job for lawyers. Therefore, the ideal is that the balance should be avoided, since the image that passes to the authorities is of merchants. If it is necessary for standardization for the preparation of medicine, it must be accompanied by evidence of therapeutic use such as recipes and reports.
14) How many plants can be grown?
There is no rule, but applying the logic of possession for personal use is, in theory, the amount that is sufficient for your personal, exclusive and non-transferable consumption. Possession for use is a crime with less offensive potential, and it is only in the situation of flagrant that the user can be approached and taken to the police station, to draw up the Circumstantial Term of Occurrence. Drug use has no penalty of deprivation of liberty in Brazil, only restricting rights.
15) What if I am a medical user with Anvisa authorization, is it easier?
If you are a medical user, in addition to ANVISA, you must be up to date with medical monitoring. The prescription alone does not guarantee that the cultivation will be considered medicinal: to prove that the cultivation is medicinal it is necessary that the person is actually being accompanied by a doctor.
16) Would a medical cannabis course certificate help me if the police arrested me?
If arrested, having a cultivation certificate will only be useful if it is accompanied by other documents, such as, for example, the prescription and medical monitoring report, authorization by ANVISA, among others that prove the use of cannabis for therapeutic purposes.
17) What would be the measures for the creation of a growers’ association?
Any group with common interests can create an association, all that is needed is unity and mutual trust. In Brazil, there is a movement to create associations of people who make therapeutic use of cannabis and non-therapeutic clubs. In both cases, there are a series of pacts and acts for the constitution of collectives, requiring a legal analysis on a case-by-case basis.
18) If a neighbor denounces me, but my plant is not yet blooming, can I be arrested?
Who grows marijuana for the purpose of personal use is subject to the same penalties as those who carry the drug for consumption, and this has no relation to the flowering stage of the plant, but, as we said, with nature, the amount of the substance, the location and the social and personal conditions of the agent. All personal use cases should not imply imprisonment
19) And if I am cultivating a flowering crop, a neighbor sees it and reports me, what should I do?
“Regardless of the stage of the plant, if you are denounced and the police come to your home, ask for a search warrant. ”
Regardless of the stage of the plant, if you are denounced and the police come to your home, ask for a search warrant. We know that in most cases the police enter the residence even without a warrant, alleging flagrante delicto, which, in the case of the drug law, allows the police to enter. In these cases, the best thing to do is to immediately contact your trusted lawyer, clarify only that the plants were intended solely for your personal consumption and remain silent.
20) How do the police get a search warrant?
During the investigation of any crime, the police authority may ask the judge for a search warrant. If you are being investigated by the police, the police may request and the judge may grant this authorization. This document authorizes the search and seizure of things or persons in criminal conduct, but it is not a reality: in crimes involving the drug law, 87% of the arrests made occurred on patrol of the PM.
21) If caught in the act on the street (during consumption or during a police search), what can happen and how to proceed?
During the police approach at home or on the street, a woman’s personal search should be carried out by a female police officer. If there are no women at the time of the approach, you can apply for this right: everyone should wait until a police officer comes and does the search. If you are caught with a small amount of drugs for personal consumption, you must claim that it is for your own consumption and you can be referred to the police station to draw up the TCO (detailed term of occurrence). If going to a police station, the most important thing is to record your version of the facts: record any abuse suffered in the approach, informing the delegate that you will record the occurrence. Read and check your testimonial before signing. If you do not feel comfortable, announce that you want to be accompanied by your trusted lawyer: the right to be assisted by the family or person indicated by the respondent and the lawyer is a constitutional right guaranteed in art. 5, LXIII of the Federal Constitution.
GG Note: Avoid smoking on the streets and get to know your rights!
22) I have always heard that planting in the pot is safer than planting directly in the soil. Is it even safer?
This differentiation has not been sustained since the text of the constitution was changed from plots to rural or urban properties where cultivation is carried out. Whether in the pot or in the soil, the problem will be the same.
23) Is buying seeds over the internet a crime?
“In recent cases, the courts have recognized that the mere importation of a small amount of cannabis seeds is not a crime.”
Importing any seed without state controls violates the phytosanitary barrier that prevents new species from entering Brazil. And there is still a debate about the legal nature of cannabis seeds to constitute a crime of international trafficking or smuggling, since some authorities mistakenly frame the seed as a drug, input or raw material for drug production. We argue that the seed does not fit into any of these frameworks, as it has no prohibited substance and is not an integral part of unnatural processes. In recent cases, the courts have recognized that the mere importation of a small amount of cannabis seeds is not a crime.
24) What are the consequences if you find several feet in the grow?
As we said, the quantity of plants is just one of the criteria that will be used by the judge to determine whether that crop was intended for personal consumption or for a different purpose. Although the general rule is in force that whoever has to prove the crime is the one who accuses, it is important that those who cultivate can clarify the need to have that amount of plants for their personal consumption.
25) Can I be arrested for growing at home?
Who grows cannabis for the sole and exclusive purpose of personal use, according to § 2 of art. 28 of the Drug Law, is not subject to the custodial sentence, but the best thing to do in this case is to seek your trusted attorney immediately.
26) Can I respond in freedom?
It is possible to respond to a process that investigates drug trafficking in freedom, but it all depends on the specific case, remembering that there is no chance of imprisonment for drug use.
27) What are the chances of cleaning my file if it was caught?
Signing a detailed term or a criminal transaction does not imply a conviction, so it does not generate a criminal record. In cases of drug trafficking, and only in the event of a final and unappealable sentence, will the person have a record. There is a provision for requesting criminal rehabilitation, after a period that is linked to the time of the conviction, so even in the case of drug trafficking, it is possible to request rehabilitation so that there is no conviction for a crime from which you have already rehabilitated. .
28) If I get caught, can I speak in favor of the plant and organized civil disobedience?
Speaking to the police authority about your opinions is an important political action, but in these cases it is recommended that these actions take place in the presence of your lawyer, to avoid complicating your situation and that of others, as well as being accused of other crimes, as contempt, for example, in addition to the always imminent risk of police violence or abuse. The recommendation for cases of police approach in which you feel embarrassed is to immediately contact the lawyer you trust, not to speak about the facts, making use of the right to silence until your statement can be taken in the presence of someone from your confidence. What can be said is that the cultivation of these substances is for personal consumption.
29) How to make a statement making it clear that it is for individual cultivation and consumption?
The declaration in this case is ineffective if the other situations such as the nature, quantity of the substance, the location and the social and personal conditions of the agent are not compatible with a crop for personal use. The important thing is that it is possible to demonstrate that there is no relation to the trafficking activity.
30) When farming at my home, are my parents and others who live with me also in danger?
Yes. If the nature, quantity of the substance, location and social and personal conditions of the agent indicate any purpose other than that of personal use, and if this activity involves more than one person, those involved may be charged with co-authorship.
31) If I am a solo mother, what happens to my child if I am arrested?
There is a legal provision for the execution of a home sentence in the case of mothers of children under 12, aiming, above all, to protect minors. However, the criterion will be the risk to society, which is subjective and will be decided by the judge. In case of imprisonment in which the mother cannot indicate a relative, the child must be referred to the Guardian Council.
32) Is it possible to authorize legal planting for the purpose of producing hemp cosmetics?
Not currently, some companies are trying this route in court, but nothing is certain.
Those were some of the questions that appeared on our Instagram! We know that this theme involves many variables, but we hope that we have managed to clarify some (of the many) questions that arise when we think about growing cannabis. Our most sincere and enormous thanks to the lawyers of Rede Reforma, who fight with so much love for this cause and everything that it represents:
Did you enjoy knowing all that?
Keep an eye here on the blog: every week, we will bring you a text about fresh cultivation. It’s amazing to be able to count on this wonderful team to build quality content for all of you!
Till next week!
