Superior Court of Justice (STJ) unifies position on safe-conduct for cannabis oil production.

By Danilo Vital, from Conjur - The act of planting marijuana with the aim of extracting oils for medicinal use does not fulfill the material atypicality of the crime of drug trafficking. Thus, it is possible to grant safe conduct to those who prove the need for treatment so that they can plant it without the risk of criminalization in the pursuit of the fundamental right to health.

With this understanding, the 5th Panel of the Superior Court of Justice granted a writ of habeas corpus ex officio to allow a person to cultivate marijuana for the extraction of medicinal oils.

The ruling represents a shift in the panel's position and, more than that, a unification of jurisprudence. In June, the 6th Panel, which also judges criminal cases, opened the door to granting safe-conduct to patients who, in theory, could be prosecuted for drug trafficking.

Until then, the 5th Panel had a precedent indicating that it would not be appropriate to interfere in a matter that still lacks administrative definition. The problem, as shown by the online magazine Consultor Jurídico, is that Brazil needs effective regulation, which has led the Judiciary to fill the normative gaps on the subject.

This process occurred gradually, with recorded decisions that, for example, mandated that health plans provide cannabidiol-based medications and authorized compounding pharmacies to sell this type of product.

In criminal matters, lower courts, special courts, and even Courts of Justice with a strictly penal stance, such as that of São Paulo, have come to understand that criminal prosecution is not warranted when the cultivation of marijuana, within the limits of the law and under the supervision of health authorities, is intended for the extraction of cannabidiol oil.

"For criminal purposes, it is no longer possible for the state judge to turn a blind eye and consider people seeking the fundamental right to health to be criminals or liable to imprisonment," stated the rapporteur in the habeas corpus case judged by the 5th Panel, Minister Reynaldo Soares da Fonseca.

In this specific case, the patient's goal is to cultivate marijuana and take the plant to the toxicology laboratory at the University of Brasília, an institution that has agreed to extract the oil used in the prescribed medical treatment.

In a new analysis of the issue, Minister Reynaldo highlighted that delegating the decision to the civil sphere will prove to be more burdensome and bureaucratic for the citizen, including risks to the continuity of the prescribed treatment.

"Given the state's failure to regulate the cultivation of marijuana for medicinal use, it is inconsistent that the same state that values ​​the health of the population and recognizes the medicinal benefits of marijuana should also fail to regulate the cultivation of marijuana for medicinal purposes." cannabis sativa "The use of the therapy is conditional on those who have the money to purchase the medication, which is usually imported," he said.

The granting of the order authorizes the patient to plant and transport marijuana to the UNB laboratory or other institutions dedicated to research, always within the limits of the medical prescription. "This point is very important," the rapporteur emphasized. The vote in the 5th Panel was unanimous.

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