Judge endorses the possession and recreational use of cocaine in Mexico


Two Amparo’s promoted by Mexico United against Crime seek to “promote the debate on drugs to reorient security policy.” The decision has yet to be ratified by a second instance court.

Judge Víctor Octavio Luna Escobedo, of room 14 of the Administrative Court of Mexico City, issued two decisions that allow two people to have an authorization “for personal and recreational use” of cocaine.

The decision comes after an Amparo promoted by United against Crime. “Our goal with this and other cases has been to promote public discussion about drugs and force the reorientation of security policy. We want to promote different strategies in innovative ways and so far we have been successful, ”says its director, Lisa María Sánchez Ortega.

One of the failures, to which Political Animal had access, is dated May 17. The Amparo was filed after a person (who protects his identity for security reasons) filed a petition with the Federal Commission for Protection against Health Risks (Cofepris). In it, he requested an authorization to make “adult personal use” of cocaine. The request was not attended and resorted to the courts in an indirect Amparo trial. 

Cofepris requested that the ruling be reviewed, so the case is in the hands of a Collegiate Court composed of three magistrates. If they ratify the sentence, it will be firm. If they throw it back, the case falls, since there is no possible recourse. It remains to be known whether it will be these three magistrates who will make the last decision or if, on the contrary, they are declined by the Supreme Court of Justice of the Nation (SJCN).

“In the coming weeks, we will be able to know if the cases are resolved by the Collegiate Circuit Courts or by the Supreme Court of Justice of the Nation due to their importance and transcendence. Regardless of who dictates the sentences, they will be final and unappealable, ”says Víctor Daniel Gutiérrez Muñoz, project coordinator of Mexico United Against Crime and one of the lawyers in charge of the case. 

Cofepris sources said that “it is an open procedure” so they declined to make statements. 

“It is not legalization”

The sentences grant authorization “for personal and recreational consumption of cocaine (methyl ester of benzoylecgonine) and other acts related to self-consumption, that is, possession, transport, employment, and use, excluding acts of commerce such as distribution, transfer, and transfer .”

The ruling also makes it clear what the user cannot do: “driving vehicles or using dangerous instruments under the effects of the substance”, or consuming “in public places, or in the presence of minors, or to induce third parties to consume too. ” In addition, says the judge, “the complainant must not introduce, consume or go to work, occupation, profession, employment, trade or art under the effect of cocaine.” 

This authorization is limited to 500 milligrams per day, which is the amount included in the “Guidance Table for Maximum Dose of Personal and Immediate Consumption” established in Article 479 of the General Health Law

This regulation raises amounts that are considered “for strict and immediate personal consumption”. It’s 5 grams of marijuana, two grams of opium, half a gram of cocaine, 50 milligrams of heroin, 0.015 milligrams of LSD, 40 of MDMA, methamphetamine, and MDA. As possession remains a crime, if a person is intercepted with this amount or something lower, it is brought before the Public Ministry. If that same person is arrested three times with amounts for personal use, he is obliged to go to the “treatment that corresponds”, according to the law.

The norm determines that between these amounts and their multiple per thousand, the “narcomenudeo” strip is established, which is punishable by sentences of between 10 months and three years in jail. To give a practical example: this would affect a person who is surprised with a gram of cocaine, which is the standard measure of sale. 

From the multiplication per thousand (half a kilo in the case of cocaine), it is considered large-scale traffic and the penalties multiply.

The objective of promoting debate

The strategy that has led to this resolution is similar to the one that Mexico United Against Crime sustained with the case of marijuana, which in 2018 obtained its fifth resolution in the Supreme Court that rejected the absolute prohibition of its recreational use and that, by, Therefore, he settled jurisprudence. However, it has substantial differences, such as times and its impact. 

“We are not pursuing mass shelters and there will be no campaign similar to that of #CannabisConPermiso. If within a year, two or five conditions are met, we will talk about it. This is the first time that in the first instance it is solved in a positive way and what it tells us is that there is a different way of approaching the drug issue from the judiciary, ”says Sánchez Ortega. 

In his opinion, “drug policy reform does not start and does not end with cannabis, the rest of the markets must also be regulated.” It’s objective: to promote the debate on decriminalization and put an end to the so-called “war on drugs” from a public security perspective. 

The ruling, as reiterated by the director of Mexico United Against Crime, does not imply the “de facto” legalization of cocaine in amounts less than half a gram. “This is a step to generate debate. We want to encourage discussion on an issue that remains taboo and we have to work with sectors of society. Promote public discussion and legislative proposals to decriminalize the consumption of all drugs.

The Amparo’s arguments and the judge’s response

The Amparo claimed that the ban on the use of cocaine violated the “free development of personality recognized in Article 1 of the Political Constitution of the United Mexican States.” In this sense, the judge recognizes that they can choose to perform certain recreational or recreational activities. “That choice may include the intake or consumption of substances (drugs) that produce experiences that in some sense ‘affect’ the thoughts, emotions and/or feelings of the person,” says the ruling. 

“Cocaine intake can have different purposes, including stress relief, intensification of perceptions or the desire for new personal and spiritual experiences,” says the judge. 

“It is concluded that the total prohibition contained in articles 235, last paragraph, 236, 237 and 290 of the General Health Law affects the content of the right to free development of personality, since it constitutes a legal obstacle that prevents exercising The right to decide what kind of recreational or recreational activities are desired, while also preventing lawfully carrying out all the actions or activities necessary to realize that choice through self-consumption.

In his argument, the judge enters to assess the conflict between the objectives of the General Health Law, which seeks to protect ‘health and public order’ with the prohibition of cocaine use, and the complaint of the complainant that the veto contravenes its constitutional rights. Alert that it is an ‘addictive’ substance and that “there is a risk of dependence due to high consumption”.

The ruling is based on a report from the National Commission against Addictions to alert the effects of the consumption in low doses, high doses and chroni . “Cocaine use does not pose a significant health risk, except in the case that it is used chronically and excessively,” he says. 

“This federal court determines that the legislative measure consisting in the absolute prohibition of the recreational use of cocaine is not necessary because there are equally suitable alternatives to ensure the health of consumers and protect society, but less harmful; as can be the controlled self-consumption of the drug, in private spaces, away from minors and without incitement of third parties to consume, ”says the ruling. “These alternatives guarantee: on the one hand, health and social welfare; and on the other, the desire of consumers to ingest cocaine. ” 

Unprecedented in other parts of the world

“The ruling is paradigmatic not only in Mexico but in the world. The first sentences related to cannabis, in other countries, are turning 20 years old. However, there are no precedents for similar court decisions with other drugs. Mexico and its judgments are setting important precedents for other courts, ”says Sánchez Ortega.

That it is precisely in Mexico also has its importance. Since 2006 the country suffers a spiral of violence initiated after the declaration, by President Felipe Calderón, of the so-called “war on drug trafficking”. Since then, it is estimated that at least 200 thousand people have died and another 40 thousand have been disappeared. 

“The current drug policy is a failure in all areas,” says Sánchez Ortega. In his opinion, the focus is placed on users, which is the weakest link, instead of focusing on “drug trafficking networks and corrupt authorities.”

Mexico United Against Crime has experience in this type of litigation. He has promoted the debate on the decriminalization of drug use since 2011. That is, during the terms of Felipe Calderón, Enrique Peña Nieto and, now, with Andrés Manuel López Obrador. 

Sánchez Ortega believes that, with the current government, there are more options to coincide with the authorities’ strategy. As an example, the National Development Plan 2019-2024, which at its fifth point says: “the prohibitionist strategy is already unsustainable, not only because of the violence it has generated but because of its poor public health outcomes: in the majority of the countries in which it has been applied, that strategy has not translated into a reduction in consumption. Worse, the prohibitionist model inevitably criminalizes consumers and reduces their chances of social reintegration and rehabilitation. The “war on drugs” has escalated the public health problem that currently banned substances represent until it becomes a public safety crisis. “

The activist notes that she has met with representatives of all the banks, including the majority of Morena, and is confident that the debate can lead to measures that promote decriminalization. 

According to the National Survey of Drug, Alcohol and Tobacco Consumption 2016-2017, 3.5% of Mexicans ever used cocaine. This figure increases to 9.9% if asked about illegal substances. 

According to a 2016 study of the Drug Policy Program of the Center for Economic Research and Teaching (CIDE), 41% of federal prisoners for drug matters were locked up for possessing substances with a value lower than 500 pesos. 

Source: animal politico, imagentv

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