Court grants preventive habeas corpus to Argentine traveling to Brazil with medicinal cannabis

The Drug Law (Law 11,343/06) provides for criminal repression of drug trafficking and consumption, but also the possibility of authorization for cannabis cultivation for medicinal purposes.

This was the basis adopted by Judge Márcio Martins de Oliveira, from the 2nd Federal Court of Guarulhos (SP), when granting a preventive Habeas Corpus in favor of an Argentine citizen who uses cannabis therapeutically. The patient proved to be suffering from a disease and undergoing treatment for anxiety, with a prescription for the plant's oil and inhaled flowers.

According to the process, he has authorization from Argentine authorities to acquire and ingest the medications, as well as authorization for seed importation. The patient informed the Judiciary that he will arrive in Brazil on November 12, 2025, through Guarulhos Airport and will stay in the country until November 20, 2025. He expressed fear of being coerced by Brazilian authorities while transporting 40 grams of natural medication, three 30 ml bottles of cannabis oil, and a vaporizer.

The lawyer Clayton Medeiros Bastos Silva, representing the patient, stated that “the decision represents more than a legal victory: it reaffirms that the right to health and human dignity knows no boundaries.” He emphasized that the treatment is regularly prescribed in the country of origin and pointed out the risk the citizen would face when entering Brazil: “he was at real risk of being criminalized for transporting his own treatment.”

The judge noted that the preventive Habeas Corpus is applicable when there is a concrete threat to freedom of movement and cited jurisprudence from the 3rd Regional Federal Court that admits safe-conduct in these cases, since the importation or transportation of cannabis derivatives without administrative authorization could, in theory, fall under articles 28 or 33 of Law 11,343/06, or even under the crime of smuggling provided for in article 334-A of the Penal Code.

Clayton reinforced this understanding by stating that “the preventive habeas corpus precisely guarantees this: the freedom of those who use cannabis.” For him, the right to health is not limited to Brazilian citizens: “And when we talk about health, we talk about a fundamental right protected by the Constitution, valid for Brazilians and also for anyone on national territory.”

The magistrate highlighted articles 6 and 196 of the Federal Constitution and mentioned article 2 of Law 11,343/06, which provides for the possibility of Union authorization for planting, cultivation, and harvesting of the plant for medicinal or scientific purposes. He also mentioned Anvisa regulations, such as the inclusion of cannabis as a medicinal plant in the Brazilian Common Denominations List (DCB) and the amendment promoted by RDC 66/2016 in Ordinance 344/1998, allowing prescription and manipulation for therapeutic purposes.

In addition, the lawyer drew attention to the vulnerability of foreigners in transit: “foreigners traveling to Brazil must be guaranteed minimal protection against abusive approaches, undue detentions, and constraints at airports.” He emphasized that the safe-conduct is essential to prevent misunderstandings by security agents: “it prevents authorities from confusing a prescribed medication with drug trafficking.”

The decision also mentions precedents from TRF-3 authorizing the importation, transportation, and cultivation of cannabis for exclusive medicinal use, as well as the granting of safe-conduct to ensure treatment continuity.

When analyzing the case, the judge considered the disease, the treatment necessity, and the authorization granted in Argentina to be proven. Faced with the imminent risk of illegal constraint, he granted a preliminary injunction to prevent police authorities from seizing or destroying three 30 ml bottles of cannabis oil and 40 g of flowers, authorizing the material's transportation between November 12 and 20, 2025.

Regarding the general objective of the measure, Clayton summarized: “In essence, what we seek is simple, that no one has their treatment interrupted or their freedom threatened due to lack of norm updates.” And he added: “while these norms do not progress, the judicial path remains an essential protection tool.”

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