Portugal: Home Grown Cannabis: personal consumption or trafficking?

Home Grown Cannabis: personal consumption or trafficking?

A man has been convicted in Portugal for minor drug trafficking after cultivating and possessing cannabis plants which were being consumed by his wife, who was ill. The Évora Court of Appeal decided that cultivating and possessing cannabis is trafficking when the substance is not being consumed by the producer himself.

Ricardo Costa Macedo (Lawyer and Partner):

rmacedo@caiadoguerreiro.com

 

João Bertholo Meireles (Junior Lawyer):

jmeireles@caiadoguerreiro.com

 

 

Introduction

In a case heard by the Évora Court of Appeal in Portugal, a man was convicted for minor drug trafficking. The man had 3 cannabis plants in his house for medicinal purposes, which were intended to be consumed by his wife, who was quite ill.

Since the man was not himself consuming the cannabis plants, and since the law does not establish specific quantities to distinguish trafficking from consumption, the question arose as whether there was trafficking or not. 

 

Background

In the aforementioned case, the Court of first instance acquitted the defendant of the crime of trafficking of minor importance, foreseen in article 25 of the Decree-Law n. º 15/93, but sentenced the defendant for the crime of cultivation for drug use, established in article 40/2 of the same statute.

The Public Attorney’s Office appealed from the decision, stating that the Court’s assumption, of encompassing the defendant’s conduct in the crime of cultivation, was incorrect. While doing so, the Public Attorney’s Office argued that article 40/1 applies only to situations where the defendant “keeps for his consumption” the substance, meaning that it was mandatory that the person cultivating the cannabis plant also consumed it.

The Public Attorney’s Office further argued that the defendant was not consuming the cannabis, only taking care of the plants – it was proven in court that he was solely in charge of watering them. In such circumstances, the personal consumption’s requirement was unfulfilled, as the plants were intended for his wife.

Therefore, in the opinion of the Public Attorney’s Office, the crime of trafficking should have been the one imposed. Article 25, read in conjunction with article 21, proceeds to punish cultivation and possession on its own, requiring no additional elements for conviction, such as distribution or actual profitable sales. Hence, the man had one client, his wife, who was receiving several cannabis “donations” (with the meaning of a free contribution).

The dangers of drug trafficking were also considered to be present no matter the exchange being free of charge. In the Public Attorney’s Office view, cases of drug trafficking and consumption promote criminality, which should be repudiated with a similar intensity to crimes of murder, rape, kidnapping or robbery. For this reason, the crime deserved a more severe punishment, with the penalty of the Court of first instance, an admonition, being excessively benevolent towards the defendant, not repairing the damage caused by his conduct. The need for general prevention is extremely high, requiring the application of a fine to be effective.

 

Conclusion

The Évora Court of Appeal ended up convicting the defendant for the crime of trafficking because, if the cannabis was destined to his wife, there was no personal consumption. However, the crime was considered of minor importance, as the quantities possessed were small, the exchange was free of charge and cannabis is considered a less severe substance.

Nonetheless, the Évora Court of Appeal considered that the defendant’s level of guilt was considerably high, as he knew about the prohibition of possessing and cultivating cannabis, wanted to plant the cannabis plants and achieved such a result and acted freely and voluntarily.

This resulted in the conviction of the defendant to a fine of 75 days, equivalent to 375€.

The rationale behind this award of the Évora Court of Appeal is that in a situation where there is cultivation of cannabis a defendant may be liable for drug trafficking unless he or she is the exclusive consumer of the substance in question. It will be interesting to see to which extent this award will be followed in future cases.

 

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Lisbon, October 7th, 2022

 

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