Portugal's Supreme Court Reestablishes Crime of Drug Use Based on Quantity

"In 2008, the Supreme Court of Justice took the position, by judgment (n. 8/2008, August 5), of reestablishing the crime of drug use (article 40°, Decree-Law n. 15/93) when the quantity detected exceeds the average individual use for a period of ten days (behaviour punishable by imprisonment for one year or fine up to 120 days). These quantities are defined by the ordinance Law n. 94/96, March 26, 1996, in use till current days. A number of factors contributed to this situation.

"In 2000, and contrary to what has happened with drug use, Law n. 30/2000 kept drug dealing (production, manufacture and trade of illegal drugs) stayed legally framed by the Decree-Law n. 15/93, which penalizes “trafficking and other illicit activities” (article 21°), “less severe trafficking” (article 25°); and the “dealer/user” (article 26°). This last category regards those situations where the individual has the ultimate aim to get substances for personal use that do not exceed the quantities for a medium use of up to five days.⁸

"Concerning drug use, article 40° of the same Decree-Law established the crime of drug use and punished it with imprisonment up to three months (or penalty fine up to 30 days); if the quantities exceeded the amount necessary to the medium individual use up to three days, the penalty was of up to one year in jail (or penalty fine up to 120 days). Moreover, the Decree-Law n. 15/93 distinguished between dealing and using, criminalizing both practices, but - as long as this distinction was established - prevented drug use from being legally punished as dealing, regardless of the quantities seized. Differing from what happened with the decriminalization law, no quantitative limit was established for the purpose of distinguishing between the two behaviours."