Judge Fabrício Dias believes HC is not the best instrument for the right to cultivate medicinal Cannabis
According to the magistrate, actions requesting HCs stem from the lack of a regulatory norm that makes the exercise of constitutional rights and freedoms viable, which is why he believes that the correct approach would be to use the writ of injunction
By Sechat Content
In order for a patient to obtain a safe-conduct - which in practice is an authorization to move freely and prevent arrest - to cultivate medicinal Cannabis at home and extract its oil, it is common for access to justice to be sought through a request for a Habeas Corpus (HC) in the preventive modality. However, for Judge Fabrício Augusto Dias, this is not the most appropriate procedural route. For him, the instrument that should be used in this case is the writ of injunction.
The use of the writ of injunction should occur "whenever the lack of a regulatory norm makes it impossible to exercise constitutional rights and freedoms and the prerogatives inherent to nationality, sovereignty, and citizenship", according to the law. In this case, the lack of regulation pertains to the cultivation of Cannabis.
Dias states that when a patient requests a Habeas Corpus so they can cultivate the plant without suffering legal penalties, the coercive authority in the process is usually a police officer or a member of the military police. As a result, ANVISA (National Health Surveillance Agency) is not mentioned in these HCs.
Therefore, when these authorities, who often have no knowledge of the patient's conditions, do not authorize cultivation for the individual, ANVISA does not have the opportunity to present counterarguments, that is, to contradict the decision of the coercive authority, as it is not part of the process. In the case of the writ of injunction, the agency would be part of the process, since the injunction alleged is under its jurisdiction.
According to the judge, the improper use of HCs as a means of access occurs due to a series of reasons, among them, the different interpretations of the laws. "Analyzing the norms, the writ of injunction would be the best course, even though other lawyers and judges believe it is the HC, due to laws like this one, which are subject to many interpretations," he said.
The other two reasons for using HC instead of the writ of injunction in these cases are the lack of knowledge that many have about the scope of the writ and its greater complexity compared to the instrument currently used. According to him, "there is a significant difference in judgment competence, as the HC is judged at the trial level, unlike the writ of injunction. In the case of ANVISA, the competence to judge the writ against the act would be with the STJ".
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The judge argues that all patients should have their claim guarantee to demand the appropriate treatment they need, with the Judiciary being a tool to ensure the rights provided for in the Federal Constitution, which in this case is full access to health. Therefore, there should be no deprivation of treatment for diseases due to the prohibition of cultivating medicinal Cannabis, which could be seen as a violation of a basic right.
What is a writ of injunction?
The writ of injunction is one of the five constitutional remedies, which also include habeas corpus, habeas data, mandamus, and popular action. It is provided for in Article 5 of the Federal Constitution of Brazil of 1988, in section LXXI, which states:
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"Art. 5, LXXI - A writ of injunction shall be granted whenever the lack of a regulatory norm makes it impossible to exercise constitutional rights and freedoms and the prerogatives inherent to nationality, sovereignty, and citizenship."
The writ of injunction, therefore, is a prerogative that seeks to legitimize the application of the 1988 Federal Constitution, ensuring that the rights established in the Magna Carta are enforceable and accessible to the entire society. It is a mechanism to defend the letter expressed in the document itself. (Source: Projuris)
What is Habeas Corpus (HC)
It is a judicial measure aimed at guaranteeing and protecting the freedom of those who are imprisoned or under threat of arrest. Habeas corpus also serves to remedy any coercion in criminal proceedings, as criminal proceedings, which can result in deprivation of liberty, are a threat to freedom of movement. The name, in Latin, means "you shall have the body."
The Constitution provides for habeas corpus in Article 5, section LXVIII: "The writ of "habeas corpus" shall be granted whenever someone suffers or is threatened with violence or coercion in their freedom of movement, due to illegality or abuse of power".
The Criminal Procedure Code, which dates back to 1941, addresses habeas corpus in the section reserved for appeals. However, habeas corpus does not have the legal nature of an appeal. It is an autonomous judicial action. The technically appropriate verb for filing the measure is the verb to impetrate. Therefore, habeas corpus is impetrated. (Source: MPU/MP School)