Law no. 55/2023 was published on September 8, clarifying the penalty system for possession of drugs for consumption, regardless of quantity, and establishing regular deadlines for updating the regulations, which will come into force on October 1, 2023. (see art. 5 of the aforementioned Law).
For a better understanding of the regime in force until Law 55/2023 of September 8 comes into force, see the published text accessible via the link https://www.tofadvogados.com/post/o-consumo-de-estupefacientes-é-legal-em-portugal and the dissertation accessible via the link https://comum.rcaap.pt/bitstream/10400.26/28907/1/A%20Repress%C3%A3o%20Seletiva%20das%20drogas%20Origem%20e%20Limites%20da%20Legitimidade%20Penal%20%C3%A0%20Luz%20dos%20Princ%C3%ADpios%20de%20Direito.pdf.
In the context of this law, we can see the following changes:
A)
Until then, art. 40 of Decree-Law no. 15/93, of January 22, was repealed, with the exception of cultivation, in accordance with the provisions of art. 28 of Law no. 30/2000, of November 29.
From October 1, 2023, article 40 of Decree-Law no. 15/93, of January 22, will read as follows:
“1 - Anyone who, for their own consumption, cultivates plants, substances or preparations included in tables i to iv shall be punished with imprisonment of up to 3 months or a fine of up to 30 days.
2 - The acquisition and possession for personal consumption of the plants, substances or preparations referred to in the previous paragraph constitutes an administrative offense.
3 - The acquisition and possession of the plants, substances or preparations referred to in paragraph 1 in excess of the quantity required for average individual consumption over a period of 10 days is an indication that the purpose may not be consumption.
4 - In the case of acquisition or possession of the substances referred to in paragraph 1 in excess of the quantity provided for in the previous paragraph, and provided that it is shown that such acquisition or possession is intended exclusively for personal consumption, the competent judicial authority shall, depending on the stage of the proceedings, order that the case be closed, that no indictment be handed down or that the accused be acquitted and that the accused be referred to a commission for the deterrence of drug addiction.
5 - In the case of paragraph 1, the perpetrator may be discharged.”
B)
Ordinance no. 94/96, of March 26 [referred to in art. 71 of Decree-Law no. 15/93, of January 22] will now be reviewed every six months, and must be updated 30 days after the publication of this Law, so its updating is no longer dependent on abstract and generic criteria such as the fact that the “evolution of scientific knowledge” justifies it.
C)
Article 2(2) of Law no. 30/2000, of November 29, now states that
“For the purposes of this law, the acquisition and possession of the plants, substances or preparations referred to in the preceding paragraph in excess of the quantity required for average individual consumption over a period of 10 days constitutes an indication that the purpose may not be consumption.”
and paragraph 3 is added to the aforementioned article 2, in accordance with the aforementioned paragraph 4 of article 40 of Decree-Law no. 15/93, of January 22.
Final note:
We see here that paragraph 3 of article 40 of Decree-Law no. 15/93, of January 22, is now worded in accordance with paragraph 2 of article 2 of Law no. 30/2000, of November 29, in force until then (i.e., with reference to 10 days), as well as adopting (like the new no. 3 of art. 2 of Law no. 30/2000, of November 29) what had already been decided by case law, in the sense that the quantity when higher than what is necessary for consumption for 10 days constitutes mere evidence of trafficking (i.e. not consumption) which should be interpreted in conjunction with the other evidence.
We must stress that the wording of paragraph 3 of article 2 of Law no. 30/2000, of November 9 and paragraph 4 of article 40 of Decree-Law no. 15/93, of January 22, is curious, since, on the one hand, it reveals the decriminalization of consumption in its entirety; on the other, it seems to be trying to ensure that its practical application presupposes that “it is demonstrated that such acquisition or possession is intended exclusively for personal consumption”.
Now, taking into account the applicable principles of law, one wonders where possession of more than 10 doses a day is, when it has not been shown that it is only for personal consumption, but it has not been shown that it is for trafficking either. Will the case file not be closed/an order of non-prosecution or acquittal passed?
Or will it be assumed that, if it is not proven that it is for trafficking, it will be proven that it is for personal consumption?
The fact is that, regardless of the juggling act used by the legislator, in no way can it determine the reversal of the burden of proof, and it is always necessary that, in order to impute the commission of a crime of trafficking (or to accuse) that there are indications of such conduct, far beyond “the defendant has failed to prove that it was intended solely for his consumption”, and it is not even legal to consider the content of Ordinance 94/96, of March 26, even if updated, in a watertight manner for this purpose.
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