Law 20.000 decriminalised private and personal cannabis use in certain cases, but leaves the distinction between possession and the more serious of trafficking to the discretion of the case judge.
The current drug legislation is contained in Law 20.000, which came into force in February 2005 and was reformed in 2007. It replaced 1995’s Law 19.366, which punished the illicit trafficking of narcotics and psychotropic substances.
Law 20.000 allows for the personal consumption of any recreational drug, while penalising consumption that occurs in groups. It does not, however, establish a threshold for the permitted quantities, so the distinction between trafficking and consumption is left to the discretion of the judge. Its implementing law Decree 867 published in 2007 by the Interior Ministry specifies which drugs, plants and substances are illicit. This decree places and its derivatives in the category of “hard drugs that produce high levels of toxicity or dependence”, thus mandating maximum penalties for cannabis–related crimes. Decree 143, published on 18 August 1997 by the Justice Ministry, requires the Civil Registrar to keep a record of all those sentenced for crimes involving drugs.
Law 20.000 introduced the legal notion of “micro-trafficking” for possession of small quantities of drugs. The jail terms for trafficking range from 5 to 15 years for large quantities and from 541 days to 5 years for small quantities – unless the accused can prove that the substance was intended for personal consumption.
Article 4 does not prohibit personal, private consumption of any drug: “Individuals who, without due authorisation, possess, transport, hold or carry on their person small quantities of drugs that produce physical or psychological dependency, or the raw materials used to obtain these drugs, will be punished with no less than 541 days and up to five years in prison, unless they can justify that it is for medical treatment or exclusively for personal use or consumption in the short term.”
While the law does not specify what substances can be consumed recreationally, it does state that no consumption will be subject to any legal penalties.
Article 50 outlines penalties for consuming substances in public places: “Individuals who consume drugs or narcotic or psychotropic substances referred to in Article 1 in public places or spaces open to the public, such as streets, paths, plazas, theatres, cinemas, hotels, cafes, restaurants, bars, stadiums, dance or music halls, or in educational or training centres, will be punished with the following penalties.”
In such circumstances it also specifies “obligatory participation in prevention programmes for up to sixty days, or treatment or rehabilitation lasting … 180 days in institutions authorised by the competent Health Service,” and/or fines, participation in determined community service, and suspension of driver’s license.
Law 20.000 formally decriminalised drug possession for immediate personal use in a private setting. Drug use or possession in public places is defined as a crime punishable by fines, mandatory treatment, community service and/or suspension of the individual’s driver’s license. Cannabis use is not penalised, but growing the plant is, “unless one can justify that it is for exclusive personal consumption and use in the short term” (Article 8). Possession for personal use can be punished with minor fines, community service or mandatory participation in rehabilitation programmes. While the majority of cases conclude with these fines being suspended or only with administrative sanctions put in place, some people who are detained with small quantities still do end up in prison.
The law makes no reference to specific permitted quantities for each substance, but the implementing regulation passed in 2007, Decree 867, does describe and penalise the possession of proscribed drugs that are trafficked with the intention of transferring these substances to a third party. In all cases coming to court, the judges have the power to decide whether a person is a consumer or trafficker.
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3. What reform proposals and reform to the drug laws have recently occurred in the country?