Beruflich Dokumente
Kultur Dokumente
JUDGMENT
Reconciliation
Relapse under review under 237/2014, filed by the
plaintiffs ***** ***** ***** ***** and *****, against the
judgment dated ***** by the Eleventh District Judge Administrative
in Matters Federal District, in the
indirect amparo *****.
I. BACKGROUND
1.
this regard, the complainants identified as responsible authorities to the following: (i)
President (for the enactment of the General Health Law); (Ii) Secretary of
the Interior (for the endorsement of the Act); (Iii) Deputy Director General of the OfficialGazette
(the publication of the decree by which the law was enacted); (Iv)
Congress(for the issuance of the General Health Law); (V) Ministry of Health, (vi)
Foreign Secretary,(vii) Secretary of Defense, (viii) Navy Secretary (ix)
Secretary of Finance and Public Credit (x) Economy Secretary (xi ) Secretary of
Communications and Transportation, (xii) Ministry of Social Development, (xiii) Secretary ofEducation,
Public (xiv) Secretary of Labor and Social Security, and (xv) Head of the Federal District
(all for the endorsement of the this law); and (xvi) Executive Director of Regulation Narcotics,
Psychotropic Substances and Chemical Federal Commission for the Protection againstRisk
Sanitary(for the implementation of the General Health Law). Folio 2 turn back to 4notebook
and yet it has not been shown that the decriminalization of marijuana
increases demand and consumption. Indeed, the prohibitionist regime
6.
these rights, because from their perspective the contested articles: (i) do
notconstitute an encroachment on the right to privacy insofar as they
7 Judgment
of amparo, fojas149-164 .
JUDGMENT OF 8amparo,
folios 165-180.
II.
RESOURCES SERVICE
11 Appeal
10
regard, the appellants argued that the District Judge ruled that
the prohibitionist policy was instrumental in protecting the health while
there were less restrictive measures to achieve the objective sought
12 Appeal
11
12
13.
on these matters, the fact is that that power is not free and unrestricted.
Torts first and eighth. Improper assessment of evidence
by the District Judge.14
Finally, the appellant argued that the District Judge conducted an
inadequate analysis of the evidence, because the Judge
overlooked the sophisticated and serious facts given at trial in a study by
the Beckley Foundation, as the Foundationis accredited with the Economic
and Social Council of theUnited Nations, and the report was prepared by
scientists and researchers of high reputation and recognition.
So, by not assessing that report, the District Judge based his decision on
social prejudice and conjecture without scientific support,
as the document revealed enough data for actual health effects
from the consumption of marijuana, its possibleeffects compared to other
drugs, and the objective degree ofdanger from marijuana.
In addition, the appellants argued that the 2011 National Addiction Survey
was assessedincorrectly, as it was givenan inappropriate scope and
probative value, considering that such adocument does not establish that
marijuana use hasstopped or diminished, nor make any assessment of the
strategy implemented in our country to combat drug use. Such
misjudgment led the District Judge toconclude that variations in marijuana
14.
2.
15.
They also noted that the restrictions in question are duly justified, while the
measures(i) are admissible, as they are aimed atprotecting the right to
health of society in general; (Ii) they arenecessary, since it is scientifically
proven thatthe effects of marijuana use are harmful to the physical and
mental healthof people; and finally (iii) they are proportionate, given
that the degree of restriction is amply rewarded by the benefits gained by
protecting the health of the general population, and in particular the health
of minors.
In fact, according to the state authorities, the prohibition contained in the
contested articles is not arbitraryor capricious, while as noted by the district
court itselfit does not violate the right to privacy, free development of
personality, personal identity or self-determination, nor violates the right to
health, as it is a measureinstrumentally appropriate for attaining the
objectives of protection oflife and health, it does not intervene in the private
and personal sphereof the individual.
In addition, the responsible authorities claimed that in
fact there does not exist as such a prohibition on the consumption of
cannabis, under which in accordance with Article 479 of the
General Health Law, there is permission for personal consumption
16
Finally, policy makers noted that the District Judge correctly noted that the
rights claimed by theplaintiffs are confined exclusively to the human being,
so it was not possible to extend them the moral person complaining,
making them inoperative arguments in this regard.
III.
17
the matter with the file number 237/2014 and taking turns to
Minister Arturo Zaldivar Lelo de Larrea for study.20
Subsequently, by order of 24 April 2014, the First Chamber of
the Supreme Court took over the hearing in this under
review, and the cars were sent to Minister Arturo
Zaldivar Lelo de Larrea to prepare thecorresponding draft resolution.21
V. COMPETITION
The First Chamber of the Supreme Court of Justice of the Nation has
jurisdiction to hear this appeal for review, interms of the provisions of
Articles 107, section VIII, paragraph (a)of the Constitution of the United
Mexican States; 83 of theAmparo Act effective from April 2, 2013; 21,
section II,subsection (a) of the Organic Law of Judicial Power of the
Federation; and 86of the Internal Rules of the Supreme Court of Justice of
theNation, in relation to the provisions of the first and third points
of the General Agreement 5/2013, issued by the Plenary of the High Court
on 13 May 2013.
VI.OPPORTUNITY
18
19
20
sound and sufficient to overturn the judgment under appeal and give
constitutional protection to the plaintiffs on the ground that they limit
unjustifiably the fundamental right to free development of
personality. In contrast, as shown below, they are
unfounded assert grievances made by the Assistant Director of Legal
Affairs,Human Rights, of the Secretariat of Health, representing
21
235, 237, 245, 247, 248, 368 and 476), the fact is that the District Judge
determined that the challenge had been taken only
against Articles 235, last paragraph, 237, 245, section I, 247
23 Judgment
22
23
other provisions.
The exercise of sanitary control shall apply to:
I. Process, import and export of food, soft drinks,beverages,
alcoholic cosmetics, toiletries, snuff and raw materials and,
where appropriate, additives used in their preparation;
II. Process, use, maintenance, import, export, and final disposal ofequipment,
medical prosthetics, orthotics, functional aids, diagnostic agents, supplies ofuse,
dental surgical materials, healing and hygienic products, and
III. Process, use, import, export, application and disposal of pesticides,
plant nutrients and toxic or hazardous to health substances as well as materials
rawinvolved in its production.
Sanitary control of the process, import and export of drugs,
narcotic drugs and psychotropic substances and the raw materials necessary for itssubstances.
development, responsible exclusively to the Ministry of Health, based on the potential
health risks that these products represent
24
can only be granted for medical and / or scientific purposes (Articles 235
and247, respectively). In this line, there is also an express prohibition to
grant the above mentioned authorization for drugs and psychotropic
substances (Articles 237 and 248).
Indeed, in accordance with Articles 235 and 247 and Article 44 of the Rules
of Inputs for Health,any person who intends to plant, cultivate, prepare,
condition, acquire, possess, trade, transport, prescribe medically, supply,
use, use, consume and, in general,any action related to the substances
listed in theArticles 234 and 245 of the General Health Act, or any
product that contains, must have an "authorization" from the Ministry of
Health and can perform only those actions that have medical and / or
scientific purposes.28
Article 235. The planting, cultivating, harvesting, processing, preparation, conditioning,
acquisition, possession, trade, transport in any form, prescription, supply,
employment, use, consumption and, in general, any act related to narcotics or any
containing product that is subject to:
I. The provisions of this Act and its regulations;
II. International treaties and conventions to which the United Mexican States
are a party and which has entered into under the provisions of the ConstitutionUnited
of the Mexican States;
III. The provisions issued by the General Health Council;
IV. What other laws establishing general provisions and related
matters;
28
V. (Repealed).
VI. The provisions related to emit other Federal Executive
intheir respective areas of competence.
The acts referred to in this Article may be made onlymedical andpurposesHealth.
forscientificand require authorization from the Ministry of
Article 247. The sowing, cultivation , harvesting, processing, preparation, conditioning,
acquisition, possession, trade, transport in any form, prescription, supply,
employment, use, consumption and, in general, any act related to psychotropic substances or
any product that contains, is subject to:
I. The provisions of this Act and its regulations;
II. International treaties and conventions to which the United Mexican States
are a party and which has entered into under the provisions of the ConstitutionUnited
of the Mexican States;
III. The provisions issued by the General Health Council;
IV. What other laws establishing general provisions and related
matters;
V. (Repealed)
VI. Provisions concerning that issue other Federal Executive intheir respective areas of competence.
25
general, any act related to narcotics and psychotropic substances, except without
thosetherapeutic value and are commonly used in the industry may be used onlymedical
for and scientific purposes, after authorization of the Secretariat.
29 Article 237. It is prohibited in the country, all the acts mentioned in
Article 235 of this Act, with respect to the following substances and plants: opium prepared
forsmoking, heroin or diacetylmorphine, its salts or preparations, cannabis sativa, indica and American
or Marijuana, Papaver somniferum, or opium poppy, Papaver bactreatum and novogratense Erythroxilon
or cocaine, in any form, derivatives or preparations.
The same prohibition may be established by the Ministry of Health to other substances
referred to in Article 234 of this Act, when considered they can be replaced in their
therapeutic uses other elements that, in his opinion, do not cause dependence.
Article 248. It is forbidden all acts mentioned in Article 247 of this
Act, with respect to substances listed in Section I of Article 245.
26
27
In this vein, it is important to note that although Article 478 of the General
Health Law,31 in conjunction with Article479, states that the Public Ministry
will not exercise criminal action against persons possessing five grams of
marijuana, theSupreme Court has interpreted that provision to contain an
exclusive responsibility,32 which only means that insuch cases it should not
apply to the person who committed the crime in question, but does not
establish in any way an authorization ora right to personal consumption,
but is only meant to decriminalize consumption in a very small amount.
Those provisions do not allow in any way the carrying out of other activities
correlated to consumption, such as planting, growing, harvesting,
preparation, transportation, etc.
It should be noted that the aforementioned items are not not part of "the
system of administrative bans" contestedby the complainants, but of the
punitive system" under the General Health Law and the Federal Penal
Code in relation to the control ofnarcotic drugs and psychotropic
substances, so they are not relevant precepts regarding the
constitutionality approachproposed by the complainants, which
straightenedonly against the numerals that form the aforementioned
"administrative system of prohibitions," among which obviously are not
Article 478. The Public Ministry will not exercise criminal action for the offense under the
preceding article against whoever drug addict or consumer and possessing any of the
narcotics listed in the table, equal to or less than the amount provided therein for its
strict staff and outside places specified in section II of section 475 of thisconsumption.
Act The ministerial authority shall inform the consumer the location of the institutions or centers
for medical or counseling for the prevention of drug treatment.
32 In this regard see the thesis category "crime against health. ARTICLE 478
OF THE GENERAL HEALTH LAW, by providing for not applying the exclusion of
liability in respect ofdrug addicts HOLDERS
any narcoticIN DETENTION CENTER, EVEN IF
quantitydoes not exceed the legal limit does not violate the
guarantee of equality "[ninth period; Record 162 389; Instance First Chamber; Type of
Thesis: Isolated; Source: Judicial Weekly of the Federation and its Gazette; Volume XXXIII, April
2011;Matter (s): Constitutional; Thesis: 1a. LII / 2011; Page:. 307]
31
28
Articles 478 and 479 of the General Health Law.Once the scope of the
contested rules are established,then it will be analyzed if such an
administrative "prohibitions system" generates the damages that the
plaintiffs argue.
Inthis sense, even though the appellants argue violations of the rights
of personal identity, self-image, privacy and human dignity,the First
Chamber considers that all these fall under the right to free development of
personality. Thus, it is necessaryto explain the premium content facie this
right and then decidewhether the claimed items affect such content.
29
35 Barak,
cit., p. 26.
30
Carlos, Ethics and Human Rightslimits.A test basis, 2nd ed., Buenos
Aires, Astrea, 1989, p. 223.
37 Nino, op. cit., p. 223.
38 Garzn Valds, Ernesto, "Something about 'the preserve'" Doxa. Journal of
Philosophy of Law no. 6, 1989, p. 209.
39 Nino, op. cit., p. 223.
31
40 Alexy,
32
In the Mexican system, the Supreme Court has understood that the free
development of personality is a fundamentalright derived from the right to
dignity, which in turn is provided for inArticle 1 of the Constitution and It is
implicit in international human rights treatiessigned by our country.45 In this
regard, in the judgment that decided the direct protection 6/2008 46 a plenary
of the High Court held that "[t] he individual, whoever he is ,has the right to
choose freely and autonomously, their life plan, how it will achieve the goals
and objectives that, for him, arerelevant.
That precedent explained that the right to free development of personality
allows the achievement of a life project for himself, the human being, as an
autonomous entity," so thatthere exists "state recognition of the natural
ability of everyperson to be individual, without coercion or undue controls
or impediments by others, in order tomeet the goals and objectives it has
set, ie, it is thehuman person who decides the meaning of his own
existence,according to his or her own values, ideas, expectations, tastes,
etc." This criterion was subsequently reflected in the separate opinion of
category"right to free development of personality. 47
45 In
33
In line with the statement made by the German Constitutional Court in the
Eppler case,48 it can be said that the"indefinite" freedom which is
supervised by the right to free development of personality complements the
more specific freedomssuch as freedom of conscience or freedom of
expression, sinceits function is to protect the "personal sphere" is not
protected by traditional and more concrete liberties. In this sense, this right
is especially important against the newthreats to individual freedom
presented today.However, the specialized doctrine states that the free
development of personality has an external and an internal dimension. 49
From an external point of view, the law provides coverage for a generic
"freedom of action" that allows anyactivity that the individual considers
necessary for the development of hispersonality.50 However, from an
internal perspective, the lawprotects a "sphere of privacy" of the individual
againstexternal incursions that limit the ability to make certain decisions
through which personal autonomy is exercised.51
As shown below, although at a conceptual level this distinction can be
drawn between external and internal aspects, it is difficult to assign the
cases to exercise this right toone of these dimensions. This is because the
34
35
For example, the German Constitutional Court has held that the free
development of personality provides coverage for "recreational" activities
like traveling abroad, hunting andhorse riding54 while in cases involving
transsexuals the right protected the decision regarding the sex and gender
with which an individual wishes to be identified. 55
In a similar vein, the US Supreme Court heldthat the right to privacy in the
aspectaforementioned protects a variety ofpersonal decisions from
external interference,56 such as those related to contraception,57
education,58 the care of children,59. and family relations. 60Thus, these
decisions are covered by the right to privacyspecifically because they
belong to the sphere of personal autonomy .As noted above, the protection
afforded by theright not only includes those decisions, but also the actions
necessary to realize those decision.
54 Kommers
57 The
36
Now this way of specifying the content of the right to free development of
personality, consisting of cases that specifically recognize that certain types
of conduct or decisions areprotected by law, which in turn results in the
recognition of a right to make those behaviors or make those decisions
without State interference, isconsistent with the manner in which this
Supreme Court hasapproached the problems related to the scope of the
rightin question.
In fact, in the judgment of that direct relief 8/2008 the Supreme Court held
that in the matter of "'sexual reassignment, for a person to decide to have
surgery forthat purpose, in order to adapt their psychosocial and physical
state,hence, live in the sex with which the person identifies fully, is
undeniably a decision that is part of the free development of personality, as
an expression ofthe individuality of the person. It is part of their sexual
perception of themselves, which strongly influences their life project. It is a
decision that ispart of the Rights to the free development of the
personality.61
Period, Register: 165 698, Instance: Full, type Thesis: Isolated, Source:
Judicial Weekly of the Federation and its Gazette, Volume XXX, December 2009 Subject (s): Civil,
Thesis: P. LXIX / 2009, page 17.
37
subsequently the criteria set out in the separate opinion: "DIVORCE without
explanation is aform of exercising the right to free development of the
personality.64
62 Judgement
38
In the same vein, in the analysis of the free development of the personality,
the constitutionality of the divorce system through which accreditation is
required grounds to dissolve themarriage, the First Chamber again
reiterated in the contradictoryargument 73/201365 that "the decision of a
spouse not to staymarried, regardless of the reasons, is also part of a life
plan chosen independently,which should not be hindered by the state or by
a third party,such as when the other spouse refuses to grant a divorce,
which means that the decision is also covered at least prima
facie by this right.
Moreover, it is worth noting that in solving the aforementioned direct
protection, 8/2008 the plenary Supreme Court also noted in obiter dictum
that "the right to free development ofpersonality, comprising, among
others, the freedom tomarry or not; to bear children and how many and at
what point in your life, or decide not to have them; to choose ones personal
appearance; profession or work activity; and, of course, freedom of sexual
choice, as all these aspects are obviouslypart of the way the individual
wants to project and live hislife and therefore he alone can decide for
himself.
As shown, the precedents cited show aline of cases in which the Supreme
Court has recognized that the right to free development of personality gives
65 Judgment
39
40
this regard, see the dissenting opinion of Judge Levinson to the judgment of theCourt
Supremeof Hawaii in the Hawaii case State v. Kantner, 53 H.327,493 P.2d 306 (1972).
67 Id.
68 Id.
41
and its limits enclose a collision that must be resolved using the test of
proportionality.70 Thus, for our constitutional interventions carried out under
the law that limit the free development of personality must meet certain
characteristics: the legislative measure must be appropriate to protect the
rights of others and / or public order; and should not restrict unnecessarily
and disproportionately this fundamental right.
69 On
42
p. 221.
43
44
45
46
47
In this regard, the First Chamber understands that both purposes are
constitutionally valid. On the one hand, it is clear that the protection of
health is a goal that can legitimatelypursue the state, since it is
fundamentallyrecognized in Article 4 of the Constitution, which provides
expressly that everyone is entitled to the protection of health.82 In this
regard, we must not forget that this righthas both personal and individual
projection and a public orsocial component.
Regarding the protection of health of people as individuals,the Supreme
Court of Justice hasestablished many precedents that the right to health
results inobtaining a particular general welfare composed of the physical,
mental, emotional and social status of the person, which derives another
fundamental right, consisting of the right to integrity.83
Hence it is evident that the State has aconstitutional interest in people
procuring individuallyadequate health and welfare.
On the other hand, involved in the social or public face of the right to health
is the duty of the state to address the health problems that affect society in
general and to establish thenecessary mechanisms to ensure that all
Article 4 [...].
[...]
Everyone has the right the protection of health. The Act defines theand
rulesforms for access to health services and establish the concurrence of the Federation
and the states in matters of public health, as available to the fraction
XVI of Article 73 of the Constitution.
[...]
83 P.LXVIII / 2009, supported by the Full Court, available on the Ninth Period
JudicialWeekly of the Federation and its Gazette, Volume XXX, December two thousand nine, Page
Six, under the heading: "RIGHT TO HEALTH. Not limited to the physical aspect, but that
translatesinto OBTAINING A PARTICULAR GENERAL WELFARE.
82
48
49
affecting others.87
Thus, the supposed effects of marijuana that cause social performance ,88
for example, decreased labor productivity, and "amotivational syndrome" 89can notbe considered valid reasons to act upon the right to free
development of personality.
Moreover, examining the law underconsideration, and the rule making
processes that have reformed it, it is not the legislature's intention to
50
51
Rodrigo Guzman, Esther and Diana Parra, Jorge Alberto, "Des-ratio in the
prosecution of drug offenses? The Colombian case "in Catalina Prez Correa (ed.),
Excessive Justice. Proportionality and drug offenses in Latin America, Mexico, Fontamara,
2012, pp. 111-113Study".,
93 In all, see Pedersen, Willy and Skardhamar, Torbjorn, "Cannabis and Crime:
Findings From a Longitudinal Addiction. Society for the Study of Addiction, vol. 105, no. 1,
2010, pp. 109-118; Fergusson, David., Swain-Campbell, Nicola., And Horwood, John, "Arrests and
Convictions for Cannabis Related Offences in a New Zealand Birth Cohort," Drug and Alcohol
Depend, vol. 70, no. 1 pp. 53-63.
94 In this regard, there is an extensive literature showing that prohibitionist policiesnot
havebeen effective in reducing consistent and permanent supply and demand for drugs. For
all, see Blackwell, Michael J., "The Costs and Consequences of US Drug Prohibition for the
Peoples of Developing Nations" Indiana International and Comparative Law Review, vol. 24, no.
3, 2014, p. 666; Christiansen, Matthew, "A Great Schism: Social Norms and Marijuana ProhibitionEssay.",
A Short Harvard Law and Policy Review, vol.4, No. 1, 2010, pp.. 241-244; Camacho,
Adriana Gaviria, Alejandro, and Rodriguez, Catherine, "drug consumption in Colombia,"Alejandro
Uribe Gaviria and Daniel Meja Londoo (coomp.), Anti-drug policies in Colombia. Successes,
failures and deviations; Bogot, Ediciones Uniandes, 2011; Kisley Stephen, "The Case forPolicy",
Reforming Cannabis Control The Canadian Journal of Psychiatry, vol. 53, no. 12, 2008, pp. 795796 ;. Beckett, Katherine, and Herbert, Steve, The Consequences and Costs of Marijuana
Prohibition, Seattle,ACLU / University of Washington, 2009, pp. 11-26; van het Loo, Mirjam, Hoorens,
Stijn van
't Hof, Christian, and Kahan, James P., Cannabis Policy. Implementation and Santa
Outcomes,Monica,RAND Corporation, 2003. In the same vein, see the following reports: Open
Society Institute, War on Drugs. Report of the Global Commission on Drug Policy, 2011, pp. 2-4 .; and
Report by the Advisory Committee on Drug Dependence, London, Home Office, 1969.
95 Perez Correa, Catalina, "Crimes against health and (dis) proportionality in
Mexican law"in Prez Correa, op. cit., p. 196.
52
sense, this Supreme Court finds that the prohibitory rules cannot be
considered unconstitutional simply for being ineffective in motivating the
behavior of people. The reduction in consumption can not be considered an
end in itself of the measure itself, but in any case a state of affairs which is
a means or an intermediate in orderto achieve further purpose, such as the
protectionof public health or public order.96
53
54
this subject, see, among others Caulkins, Hawken, Kilmer, and Kleiman, op. cit., p. 54;
Room, Robin Fischer, Benedikt, Hall, Wayne Lenton, Simon, and Reuter, Peter, Cannabis Policy:
Moving Beyond Stalemate, Oxford, Oxford University Press, 2010; D 'Souza, Deepak Cyril, Sewell,
Richard Andrew, and Ranganathan, Mohini, "Cannabis and Psychosis / Schizophrenia: Human
Studies" European Archives of Psychiatry and Clinical Neuroscience, vol. . 259, No. 2009, pp
413-431.;and Hall, Wayne, and Liccardo Paccula, Rosalie, Cannabis Use and Dependence: Public
Health and Public Policy, Cambridge, Cambridge University Press, 2010,
99 Fischer, Benedikt, Jeffries, Victoria, Hall, Wayne, Room, Robin, Goldner Elliot , Rehm J.,
"Lower Risk Cannabis Use Guidelines for Canada (LRCUG): A Narrative Review of Evidence and
Recommendations", Canadian Journal of Public Health, vol. 102, no. 5, 2011, pp. 324-327; and
Hall, Wayne,"The Adverse Effects of Cannabis Use: What Are They, and What Are Their Implications
for Policy", International Journal of Drug Policy, 2009, vol. 20, pp. 458-466.
100 In this regard, see for all Hall, Wayne, and Degenhardt, Louisa, "TheAdverse
Effects of Chronic HealthCannabis Use" Drug Testing and Analysis. Special Issue: Cannabinoids
part II: The Current Situation With Cannabinoids, vol. 6 Nos. 1-2, 2013, pp. 39-45; and Hall
and Degenhardt Lynskey, op. cit.
101 In this vein, it has even indicated that negative effects on the state of
intoxication, such as anxiety, panic, paranoia and / or psychosis, are usually associated with subjects
55
56
Moreover, there are studies that argue that marijuana produces the same
respiratory damage as any othersmoked substance,106 and that it is less
harmful than other substancessuch as opium, amphetamines, alcohol or
barbiturates.107 In thisvein, several reports conclude that the danger of
marijuana has been "overexposed"108 and generally emphasize thatthis
substance has a very low level of toxicity.109 Moreover,there are also
57
58
only do few usersmarijuana develop addiction, but also there exists the
possibility thatthe consumption of marijuana that triggers the dependence
is subject to variousfactors such as preexisting behavioral andpersonality
disorders.116
Thus, some studies have found that 9% ofthose who use marijuana
dependence develop it at somepoint in their lives,117 while other research
suggest that10% of people who have used marijuana ever developed
habit-forming problem.118 In the same vein, other reportsestimate there is
enough evidence to conclude that some chronic marijuana users develop
effectively.119
However, numerous studies agree that theimplications for health and
social consequences reportedby those who seek to control their
consumption are much less severethan those reported by addicted to other
substances,such as opium or alcohol. For example, a report showed that
only 3% of the adult population of the United States would meet the clinical
diagnosis of dependence, compared with about 14% of those suffering from
alcoholism. Such research findings also occurred in Australia and New
Zealand.120
116, Joy
59
60
In this sense, some studies rule out completely the theory that marijuana
causes subsequent use of other drugs.Note that marijuana could rather be
just avariable that has to be analyzed together with other factors of social,
psychological and physiological risk.126 However, other studiesqualify this
Watson and Benson, op. cit .; Ballotta, Bergeron, and Hughes, op. cit .; Caulkins,
Hawken, Kilmer and Kleiman, op. cit. For example, in a recent report it states that even if
there is a causal relationship between marijuana use and the use of moredrugs,
harmful this could be explained by sociological factors more than by pharmacological factors of
marijuana.To respect, cfr. Hall, Degenhardt, and Lynskey, op. cit.
127 Ballotta, Bergeron, and Hughes, op. cit .; other Caulkins, Hawken, Kilmer, and Kleiman, op.
cit .; National Institute on Drug Abuse, Marijuana and Health. Fourth Report to the United States
Congress from the Secretary of Health, Education and Welfare, 1974, p. 6.
128 Hall, Degenhardt, and Lynskey, op. cit.
129 Joy, Stanley, Watson, and Betson, op. cit., p. 61 ;. Ali, Mir M, Amialchuk, Aliaksandr, Dwyer,
Debra S., "The Social Contagion Effect of Marijuana Use Among Adolescents", PLoS ONE, vol.
6,no. 1, 2011, p. 5.
130, Joy Stanley, Watson, and Betson, op. cit., p. 61.
61
In fact, the available evidence suggests that marijuana itself does not
induce violent crime,quite the contrary.133 In this regard, several studies
indicatethat marijuana inhibits impulses of aggression in the user because
it usually produces states of lethargy,drowsiness and shyness.134
According to the information available, in Mexico only 10% of people who
committed a crimethey did under the influence of drugs, and of these only
11% hadused marijuana.135
Although the rate of marijuana use is higher among people who have
committed crimes than among those who do not, this probably is due to the
fact that the commission of crimes and the consumption of marijuana may
arise from the same social causes.136 Moreover, it isclear that some
consumers facing criminal charges are doing soprecisely because
marijuana is alsocriminalized.
E. Marijuana use and motor vehicle accidents
However, regarding the association between marijuana useand motor
vehicle accidents, the most recent studiesshow that actual consumption of
the substance decreases necessary driving skills and therefore increases
131, Pedersen
62
Rebecca, and Huestis, Marilyn A., "Cannabis Effects on Driving Skills", Clin
Chem, vol. 59, no. 3, 2013; Li Mu-Chen, Brady, Joanne E., DiMaggio, Charles J., Lusardi, Arielle
R., Tzong, Keane Y., Li Guohua, "Marijuana Use and Motor Vehicle Crashes" Epidemiologic
Review, vol. 34, no. 1 2012; Bergeron, Jacques Langlois, Julie, and Cheang, Henry S., "An
Examination of the Relationships Between Cannabis Use, Driving Under the Influence of Cannabis
and Risk-Taking on the Road", European Review of Applied Psychology, Vol. 64, no. 3 2014
Asbridge, Mark Hayden, Jill A., Cartwright, Jennifer L., "Acute Cannabis Consumption and Motor
Vehicle Collision Risk: Systematic Review of Observational Studies and Meta-Analysis", British
Medical Journal, vol. 344,2012.
138 Hartman and Huestis, op. cit .; Downey, Luke Andrew King, Rebecca, Papafotiou,
Katherine, Swann, Phillip, Ogden, Edward, Boorman, Martin, and Stough, Con, "The Effects of
Cannabis and Alcohol on Simulated Driving: Influences of Dose and Experience" Accident,
Analysis and Prevention, Vol. 50, 2013; Li, Brady, DiMaggio, Lusardi, Tzong, and Li, op. cit .; Sewell,
Andrew, Poling, James, Sofuoglu, Mehmet, "The Effect of Cannabis Compared With Alcohol on
Driving", American Journal on Addictions, vol. 18, no. 3, 2009
139 Li, Brady, DiMaggio, Lusardi, Tzong, and Li, op. cit .; Sewell, Poling and Sofuoglu, op. cit.
63
According to the above, the First Chamber concludes that there is evidence
to believe thatmarijuana does cause various effects on the health of
people. In this regard, although in general it can be said that this damage is
only minor, this does notpreclude the conclusion that in this particular case
the "system of bans"formed by the challenged laws is indeed a suitable
measure to protect the health ofpeople.
The analyzed evidence failed to show that marijuana influenced the
increase in crime,because although consumption is associated with
antisocial consequences,they can be explained by other factors such as
the context of the consumers social system or the punitive laws against the
drug itself.
Other studies analyzed lead to the conclusion that marijuana use among
drivers is a factor that increases thelikelihood of causing traffic accidents,
which means that thecontested measure only in this appearance is also a
suitable measure to protect public order.
Necessity of the measure
Once passed a test of suitability, an analysis of whether the "system of
administrative bans" contested isnecessary to protect the health and public
order or if, on the other hand, there are equally suitable alternative
measures affectingto a lesser extent the right to free development of
personality. Before examining the measure, the First Chamber deems it
appropriate to make some methodological details of the way in which they
should perform the analysis of comparative alternative measures in this
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Health
Article 220. In no case and in no way may sell or supply
alcohol to minors.
The violation of this provision shall be equivalent to the crime of corruption of Persons
minorsof eighteen years of age or persons who lack the capacity to understandthe
Meaning ofact or persons who are unable to resistLaw.
150 General Health
Article 187 bis. powers of the Ministry of Health under the protection of the
health of others and of society from the harmful use of alcohol:
I. Set blood alcohol limits and expired air to drivevehicles,
motor which must be taken into account by the federal authorities and those of
the states, in their respective areas of competence. For vehicles
that provide a public service, people who make use of mechanisms, instruments, devices or
dangerous substances by themselves, develop speed, by their explosivenature,
or flammable by the energy of the electric current or lead other similar causes,
as well as professional, technical and auxiliary health involved in the medical and surgical care
of a user, the blood alcohol limits and expired air will be zero;
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subject to very specific rules, such as restrictions on the amounts that can
be stored and sold per person.154
In Uruguay, the State assumes full controland regulation of the marketing,
production and distribution ofmarijuana.155 Authorizations are issued to
producers who in turn sellmarijuana to the government.156 With regard to
acquisition, a personcan buy up to 40 grams per month and a state
institute sets theprice of marijuana. The institute also carries a confidential
recordof registered consumers and producers. In thisregard, it is clear that
only Uruguayan citizens orpermanent residents can buy marijuana. 157
Moreover,the cultivation, production and selling of marijuana by
unauthorized persons or institutes is prohibited. 158
C. An alternative to the absolute prohibition
The above examples set forth above constitute a number of elements that
could be an alternative to the measure in question, the absolute prohibition
of leisure and recreational use of marijuana as is set by the "system of
administrative bans"contested by the complainants: (i) limitations on the
Reuter, Peter H., "Marijuana Legalization. What Can Be Learned from Other Countries ",
Working paper. Drug Policy Research Center, 2010.
155 The second article of Law 19,172 on Marihuana and Derivatives establishes that
"the state will assume control and regulation of the activities of import,
export, planting,cultivation, harvesting, production, purchase any title, storage,
marketing and distribution of cannabis and its derivatives, hemp or when appropriate,
throughthe institutions which give legal mandateLaura."
"156 Legalizing Marijuana in the shadows of International LawGraham, The
Uruguay, Colorado , and Washington Models "Wisconsin International Law Journal, vol. 33, No.1,
2015, pp. 140-166.
157 Graham, op. cit.
158 Graham, op. citconsumption.;
154
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Concerning the effects of consumption on third parties, either through
inducing the use of other more harmful drugs and the spread of its use to
other people, it can be said thatboth on advertising the product as well as
educational and health policies are also suitable measures to prevent such
damages from occurring. Finally,regulations that prohibit driving or
operating dangerous toolswhen under the influence of substances like
marijuanaare also effective measures to prevent accidents and protect the
health of consumers.162
The second aspect of the test of need isin determining whether alternative
measures involved a lesser infringement of the right to free development of
personality than the"system of administrative bans" set by the contested
articles. The First Chamber understands that the examined alternatives are
not only suitable to preventdamage to health or public order as outlined
above, it is also a measure less restrictive of the free development of
personality.
Thus, while the system of administrative prohibitions set by the contested
items prohibits a "generic class act (any act of consumption), the alternative
Article 171 of the Federal Penal Code punishes with imprisonment of up to six months,
a fine up to one hundred pesos and suspension or loss of the right to use the license management, the
person intoxicated or under the influence of narcotics drugs commits any
violationof traffic regulations and circulation.
In the same vein, Article 93 of Regulation Federal Transit prohibits
driving while impaired psychophysical or suspected ingestion of alcohol,
psychotropicsubstances, narcotics, including drugs with this effect and all
those drugs whose use affects the ability to drive, doing stressed that the
prescription does not exempt from this prohibition. The fines set by the regulated are
tougher to increase to 100 to 200 times the minimum wage, and the withdrawal from
circulationof the vehicle.
On the other hand, Article 135 of the Criminal Code of the Federal District provides for the case of
injury, murder or damage to property caused culpably to mark the passage of
vehicles, where the agent was driving while intoxicated or under the influence of narcotics
or psychotropic drugs or other substances having similar effects, benefitsdo not apply
theof settingsculpable.crimes
162
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to the realization of the end pursued, regardless of its effectiveness.
Arguments about the degree will also be exhibited as to whether the
"system of administrative prohibitions" contributes to the protection of
health and public order.
In fact, in this part of the study showed that marijuana use does not pose a
significant risk to health, sinceits permanent consequences are unlikely,
minimal orreversible. It was noted that marijuana generates a dependence
less than other substances, which islocated in about 9% of people who
consume it. In thesame vein, it is also argued that marijuana has a very
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This is because the crimes contained in the Articles 194, section I, 195, 195
bis and 196 ter of the Federal Penal Code170 andArticles 475, 476 and 477
of the General Health Law,171related acts sought by the appellants,
have atypical normative elementswhich stipulate that the conduct must
take place "without authorization. In this sense, one of the purposes of
granting of this protection consists of
170 Federal
Penal Code:
Article 194. Imprisonment for ten to twenty-five and one hundred to five hundredbe imposed
penaltythat day:
I. Produce, transport, traffic, trades, even provide free or prescribe any
narcotics mentioned in the previous article, without authorizationtherefers;
by General Health Law
[...]
Article 195. Be imposed from five to fifteen years in prison andone hundred to three hundred and
finedfifty days, which possesses any of the narcotics listed in Article 193, without
authorization by the General Health Law refers to, provided that
possession either in order to perform any of the acts referred to in Article 194,
both of this Code.
Article 195 bis. When the circumstances of the possession of any of the
narcotics listed in Article 193, without authorization by the General Law refers
Healthto,can not be regarded as intended to perform any of the acts that refers
Article194to,four penalty applies to seven years six months in prison and fifty to one hundred
and fifty days fine.
Article 196b. They are imposed from five to fifteen years in prison andof one hundred to three hundred
a finedays, and confiscation of instrumentalities, objects and proceeds of crime, to divert or
by any means contribute to divert chemical precursors, essential chemicals or
machines, to cultivation, extraction, production, preparation or conditioning of narcotics in
any manner prohibited by law.
The same prison term and a fine and disqualification to hold any job,
position or commission for up to five years shall be imposed on public servants that, in
exercisingits functions, permitting or authorizing any conduct covered in this article
are chemical precursors, essential chemicals and machines as defined in the
relevant lawLaw..
171 General Health
Article 475 shall be imposed prison four to eight years andof two hundred to four
finedays, whose unauthorized trades or supplies, still free, narcotics
under the table, on the lower amount obtained by multiplying the per thousand of theamount
plannedin the table.
[...]
Article 476 shall be imposed for three to six years in prison andthree hundred eighty
fineddays,which possesses any narcotic than those indicated in the table, on the lower amountbythe
obtained multiplyingper thousand amounts provided in the table, without authorization
thereferred to in this Law, provided that such possession isthe purpose
forof marketing them or supply them, even for free.
Article 477 penalty applies ten months to three years in prison and up to eighty day
ticket to any of possessing narcotics indicated in the table below the amountby
obtained multiplying by a thousand those provided in the table, without the authorization referred to in
this
Law, if the circumstances of such possession can not be done considered intended
market or supply them, even for free.
We did not proceed criminally for this crime against the person possessing medicines
containingany of the narcotic under the table, whose retail be
subject to special procurement requirements, when his nature and quantity of such
medications are needed to treat the person who owns or other
persons under the custody or care who has them in his possession.
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Penal
Article 194. imprisonment for ten to twenty five years will be imposed and one hundred to five hundred
days fine that:
[...]
II. Into or out of any country of the narcotics included in thearticle,
previous although it may momentarily or in transit.
If the input or output to which this section shall not have been consummated is concerned, but
to acts performed clearly follows that It was the purpose of the agent, the
penaltywill be up to two-thirds of the under this Article.
III. Financial contribution or any kind resources or cooperate in any way to
financing, supervision or encouragement to enable the execution of any of the offenses tochapter;
referredin this and
IV. Perform acts of publicity or propaganda, for any of theconsumed
substancesin the previous article.
The same penalties provided in this article and also deprivation fee or commission and
disqualification to hold another up to five years, be placed on the public servant who, in
the exercise of their duties or taking advantage of his position, allow, authorize or tolerate any of acts
thementioned in this article.
Article 197. Whoever, without a prescription medicine legally authorized, give
to another person, whether by injection inhalation, ingestion or by any other means, a narcotic
that Article 193 refers, shall be liable to three to nine years in prison and sixty to
one hundred and eighty days fine, whatever the amount given. Penalties
increase to a half more if the victim is a minor or unable to understand the
relevance of the conduct or resist the officer.
At that provide free or improperly prescribing to a third adult,
anarcotic mentioned in Article 193, for personal and immediate use, shall be liable to two
to six years in prison and fined forty to one hundred twenty days. If the acquirer is a
minoror incompetent, penalties increase to a half.
The same penalties will be imposed from above which induces or assists another
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Health Law
Article421. punishable by a fine equivalent to 6000-12000
times the daily force in the economic area concerned minimum wage, violation
of the provisions of Articles 67 , 101, 125, 127, 149, 193, 210, 212, 213, 218,
220, 230, 232, 233, 237, 238, 240, 242, 243, 247, 248, 251, 252, 255, 256, 258 , 266, 306, 308,
309, 315, 317, 330, 331, 332, 334, 335, 336, 338, last paragraph, 342, 348, first paragraph, 350 bis
1 365, 367, 375, 376, 400 , 411 and 413 of this Act.
Section 421 bis. Is punishable by a fine of 12,000 to 16,000
times the daily minimum overall force in the economic area concerned wages, the violation
of the provisions contained in Articles 100, 122, 126, 146, 166 Bis 19, 166 Bis 20, 205,
235, 254, 264, 281, 289, 293, 298, 325, 327 and 333 of this Act.
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THIRD The justice of the Union does not cover or protect *****, against the
authorities and procedures specified in the first paragraph of this judgment.
FOURTH. The adhesive resource review filed by the responsible authorities
isnotified that with testimony of this resolution, return cars to their place of
origin and, in due course filed the Ministers, as decided by the First
Chamber of the Supreme Court Justice ofof the Nation, by _________
votes of _______
Firman President of the Chamber and the Minister Rapporteur with the
Secretary of Agreements, which authorizes and certifies the BOARD:
PRESIDENT OF THE FIRST
Minister Alfredo Gutirrez Ortiz Mena
SPEAKER:
Minister Arturo Zaldvar Lelo de Larrea