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AMPARO IN REVIEW 237/2014

AND RECURRING complainers: *****


MINISTER SPEAKER: Arturo Zaldvar Lelo de Larrea
SECRETARIES: ARTURO BRCENA ZUBIETA
IBARRA ANA MARIA OLGUN
PARTNERS:

WILLIAM KOHN ESPINOSA


MICHAEL OSCAR CASILLAS SANDOVAL

Mexico City. Agreement of the First Chamber of the Supreme


Court of the nation from the ** of ** two thousand fifteenth.

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.

Facts giving rise to the dispute

On 31 May 2013, *****, *****, *****, *****, in its own


right and as proxies **** * requested in writing

to the Federal Commission for the Protection against Sanitary Risk


(herein after COFEPRIS), decentralized body of the Ministry of
Health, the issuance of a permit that would allow them to consume
regularly, and for purely recreational or entertainment purposes, the drug
cannabis sativa (indica and American, in prepared resin and seeds)
and psychotropic THC (Tetrahydrocannabinol, the following isomers:
6A (10a), the 6th(7) 7 8, 9, 10 9 (11) and theirvariants),
stereochemical which are known as "marijuana".
Furthermore, within the said brief, the representatives of *****
also requested authorization to carry rights
correlative to the "consumption" of marijuana, such as planting,
growing, harvesting, preparation,possession, transportation,
employment, use and generally any act related to the
recreational use of marijuana by the petitioners and
partners mentioned, excludingexpressly commercial transactions,
such as distribution,sale and transfer of the same.1
*****, the Executive Director of Regulation of Narcotics
and Psychotropic Chemicals COFEPRIS informed the
petitioners that they could not be issued the
authorization requested, in accordance with Articles 235 and
237 -regarding the drug "cannabis sativa" - as well as 245,
247 and 248 of -regarding psychotropic "THC". According to the
General Health Law it is prohibited throughout the country
the performance of any act related to the aforementioned substances..2
1 Application

to the ***** Notebook protection, folio 68-69.


response to the request by the plaintiffs now. Notebook
under ***** 45.hander
2 COFEPRIS

2. Indirect amparo demand


In response to the above, lodged on 5 July
2013, ***** with *****, *****, ***** and **** * they promoted an
indirect amparo against the refusal of their request,
claiming the unconstitutionality of Article 235, last paragraph,
237, 245, section I, 247, last paragraph, and 248, all of the
General Health Act.3 In this claim for protection, the complainants
put forward in summary the following arguments:
Concepts of violation first to fifth. Undue restriction of
the fundamental rights to personal identity,
self-image, free development of personality, self-determination
and
individual freedom, all in relation to the principle of human dignity
and the right to health4
After exposing the constitutional, conventional and jurisprudential
framework regarding the fundamental rights to identity,
personal self-image, free development of personality,
self-determination and individual liberty, which arise from the same
recognition of human dignity and the right to
health,the plaintiffs argued that the prohibitionist policy toward
marijuana use established in the contested articles
3 In

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

under***** (claim for 4.


protection.) Request for defense, folio 13-76.

is not exceeded by screening tests established by the Supreme


Court for making restrictions on fundamental rights.
Indeed, the plaintiffs argued that the state can not
undermine or eliminate the actions an individual may take to
be individualized in society, unless there is an overriding
interest that justifies, as the individual has a right to
choose freely and autonomously his or her life project and how
they will achieve the objectives that are relevant; in other words,
the state can not impose models and standards of living upon
citizens, or intervene in matters within the sphere of the personal and
private.
In view of the above, the plaintiffs argued that by using
marijuana, people project their preferences and
features that differentiate them from the rest of society. Thus,
the prohibition of marijuana is unconstitutional because it
involves the suppression of behavior that gives the individual a
specific difference according to its uniqueness. That restriction
is notjustified, and the imposition of a single standard of
healthy living is not admissible in a liberal state, which bases its
existence on the recognition of the uniqueness and independence of each
human.
They also noted that the choice of using marijuana is
a strictly personal decision, because it is the individual who
suffers the change in perception, mood and state of consciousness brought
about by the use of marijuana. It is the individual who deals with the
consequences of his or her decision, without disturbing or

affecting the rest of society. Therefore, through these prohibitionist


measures, the state assumes that the individual has no rational
capacityto dispose of his body, mind and person.
5

Moreover, the complainants also argued that the


prohibitionist policy derives from contested
articles by violating the right to health in its negative aspect,
understood as the ability or power to have personal
control over ones health. So, they noted
that the state can not interfere with the freedom of individuals to
control their health and body. That is, the state can not interfere
with thefreedom inherent in the right to health to control ones
own health.
In this regard, plaintiffs argued that the ban on
marijuana is based on a prejudice sustained by
moral values and not on scientific studies, thus revealing that the
state has not acted in an ethically neutral manner. Plaintiffs
also warned thatthe state has taken a paternalistic stance by treating
citizens as if they were not rational enough
to make their own decisions. Taken to its extreme, this stance
could go so far as to prohibit substances such as tobacco, alcohol,
sugar, fat orcaffeine.
The plaintiffs concluded that the prohibitionist regime
constitutes a restriction on the rights previously
indicated; that said regime is not consistent with the requirements
of theproportionality test, as it does not have legitimate aim,
because the imposition of a single standard of healthy living is not
permissible in a liberal state that bases its existence on
the recognition of human uniqueness and independence. The state
has argued that the prohibitionist regime is instrumental in
preventing risks to health or to fight addictions,

and yet it has not been shown that the decriminalization of marijuana
increases demand and consumption. Indeed, the prohibitionist regime
6.

has not decreased demand or consumption. And finally, it is not


proportional,as there are less restrictive ways to protect the health,
and damages generated by the ban are higher than the benefits
it has brought.
Sixth concept of violation. This is a violation of the objective
purpose ofcriminal law as well as individual and personal liberty
as
a result of the criminalization of marijuana consumption 5
Finally, the plaintiffs also alleged that the state
exceeded its powers to legislate in matters of public health
and in the determination of the offenses by criminalizing the
consumption ofmarijuana, in violation of the objective
purpose of criminal law andand individual personal freedom of individuals,
principles set outin Article 73, Sections XVI and XXI of the Constitution of
the United Mexican States.
This is so, according to thecomplainants, as the consumption of marijuana
by individual people does not affect the freedom of others,
so there is no justification for the criminal law to interfere and
limit this sphere of freedom of the individual.
3. Processing of the indirect amparo and its corresponding
resolution
As a matter of duty, to hear the case corresponded Judge
Eleventh District for Administrative Matters in the District,and
Federal by car *****, registered the case under number

***** dossier and he agreed to process the claim.6


5 Request
6 Auto

for defense, folio 77-85.


admission. ***** Notebook protection, folios 71 to 73.

Subsequently,*****, once the appropriate procedural steps completed, the


District Judgeissued a final judgment by denying protection of the
Constitution to the complainants to support the arguments
summarized below.
a) After exposing the constitutional, conventional, doctrinal framework
and legal respects of the challenged provisions and the
fundamental rights which were estimated by the violated plaintiffs,
the District Judge called their arguments unworkable concepts
of violation regarding the moral person named plaintiff *****,
while human dignity, and in Consequently the rights
derived therefrom, such as privacy, free development of
personality, self-image or self-determination, is itself
only humans, so the saidcomplainant could not allege
a violation of such rights.7
b) However, with regard to the other complainants,
the District Judge proceeded to respond to the
concepts of violation related to human dignity, stating
that it may derive rights to personality,
physical and mental integrity, to privacy, to name, to
self-image,marital status and even a right to
personal dignity; which although not recognized
expressly in our Constitution, it is possible to derive them from the
international treaties signed and ratified by Mexico, as well as
the self-recognition of human dignity in Article 1 of the Constitution.
Nevertheless, the District Judge District noted that
the concepts of violation were unfounded related to the violation of

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 .

require people to reveal aspects of their private lives; (ii) do not


violate the right to free development of personality and
self-image, then how to choose the appearance, activity or manner in which
the plaintiffs wish to project and live their lives; (iii) does not
violate the principle of self-determination, and that the state has an
obligationto take all measures required to
protect and make effective a right, in this case the health; and
finally, (iv) do not jeopardize the right to
dignity, and do not create a hazard intended to impose models and
standards of living that are beyond the individual. It is the duty of the state
to provide everyone the greater enjoyment
of physical and mental health through the fight against
addiction.8c)
Moreover, the District Judge responded to the
concepts of violation referred to (the violation of the right to health
of the plaintiffs), noting that they proved unfounded,
while agreeing that to the prohibition against marijuana contained in the
contested articles are suitable measures to protect the life and health of the
people by avoiding the proliferation of harmful substances. This holds if one
takes into consideration that themisuse of psychotropic and narcotics has
become one of the most serious public health problems, so
there is great concern by the federal government to generally maintain
strictcontrol.
In addition, in response to the argument of the complainants
regarding there are less burdensome alternatives that would allow

JUDGMENT OF 8amparo,

folios 165-180.

the purposes of the state, the District Judge carried out a


test of proportionality with regard to the contested articles,
arriving at the following conclusions: (i) the unclaimed items
updated consistently constitutionally validto avoid the involvement of third
party rights restriction, through objectivelyexpressly contained in the
Constitution, namely the protectright to the health of people; (Ii) the
legislation at issue is instrumentally appropriate and suitable to meet
the stated objective; and (iii) the measure is proportionate, since
it does not ban marijuana butsimply establishes conditions, which results
in a minimal impact on rights.9
d) Finally, regarding concept of violation based on the idea that the
criminalization of the consumption of marijuana violates the objective
purpose of criminal law and violates individual and personal freedom, the
District Judgecalled it unfounded in part,arguing that Congress has
powers toissue such rules. The District Judge also found the idea
irrelevant, because theargument of the plaintiffs was based on premises
that were dismissed by analyzing previous concepts of violation.10

II.

RESOURCES SERVICE

1. Principal resource review filed by the plaintiffs


Unhappy with the amparo judgment, the plaintiffs filed an appeal for
review.
11 Judgment
Ruling 10of

of under, folios 180-206.


amparo, folio 206 -212.

11 Appeal

for review. . Notebook under review under 237/2014, folios 143-291

10

In their letter, the applicants presented in brief the


arguments set out below:
Grievance second to sixth. Undue foundation and
motivation of the District Judge regarding the restriction of rights
fundamental to personal identity, self-image, free development of
personality, self-determination and individual freedom,
all in relation to the principle of human dignity and the right to the
provision of health12
Applicants argued that the District Judgeignored most of the arguments
presented by the plaintiffs in theconcepts of violation,
which were aimed at sustaining the unconstitutionality
of the challenged, considering that the provisions
constituted an unjustified restriction on the rights
fundamental to personal identity, self-image, free development
of personality, self-determination and individual freedom, all in
relation to the principle of human dignity and of the right tohealth.
According to the complainants, the District Judgemerely
offered "free and improperly motivated" reasons
to argue that the prohibitionist policy did not violate those rights.
Indeed, firstly, the appellants argued thatthe fact that the state has an
important aim is notreasonable to limit a human right, it is
essential also to examine whether the restriction fulfills the other
requirements of the test established by the Supreme Court. In this

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

for review, folios 23-130.

11

without exposing the reasons to substantiate his statement and without


regard to evidence to the contrary.
Based on the above, the applicants argued that contrary
to the provisions of the District Judge, the contested regulation does
impose models and standards of living upon individuals, because
only the identity of each person is respected if it he or he is allowed to
act upon their own traits, world views, conceptions of
the good life and elements that define his or her singular view of the world.
Inthis regard, the appellants argued that they would achieve these
objectives by using marijuana, in thesame way that other people achieved
frompracticing sports, hobbies, food they like and the
company they kept, without the state being permitted to
stigmatize and prohibitsuch behavior, except where it has been
proven conclusively that suchactivity violates the rights of third parties.
In connection with the foregoing, the applicants argued that the District
Judgemade very narrow interpretations of the rights to the
free development of personality and privacy. The Judge did not
take into consideration that ones own "life plan" includes
everything that the individual wants to do with his life and his body. This is
not limited to appearance and profession, but includes also private, social,
and recreational activities; cultural, leisure and recreation. In addition, it
also took into consideration thatprivacy does not only include the right not
to disclose information, butalso the right to keep the person and body in
theprivate sector.

In addition, the appellants challenged the statement made


by the District Judge in meaning that the authorization for

12

performing acts related to marijuana use canaffect society in general,


because there is no scientific evidencethat the consumption of this
substance canaffect any other than the person who consumes it.
In another vein, the appellants argued that the District Judge
was oblivious to rule on the scope of the right to health, particularly with
regard to the possibilityof having one's own health. This, considering
that the Committee on Economic, Social and Cultural Rights of the
United Nations in its General Comment No. 14, provided that the
right to health implies the right to control one's health and
body, which prohibits individuals from being subjected to interference and
non-consensual health treatments.
Seventh grievance. Improper foundation and motivation of
the District Judge regarding the argument about the violation of
the
objective purpose of criminal law as well as individual liberty as a
result of the criminalization ofmarijuana consumption13
Moreover, the applicants argued that the District Judge
wrongly described as irrelevant their arguments by alleging that the
challenged articles transgressed the power to establish offenses. In this
sense, they argued that the District Judgeheld that through a literal reading
of Article 73, SectionsXVI and XXI, it was clear that the Congress
is authorized to issue rules. However,these considerations do not
detracted from the plaintiffsclaim for protection because the District Judge

failed to make a teleological interpretation of those constitutional rules,


which is to say that while indeed the Congress is entitled to legislate
13 Appeal

review, folios 130-143.

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

use are aconsequence of the prohibitionist policy of our country, without


considering that thesurvey found no causal link between the two.
14 Appeal

for review, folios 10-23 and 144-49.

14.
2.

Resource revision filed by the Ministry ofHealth on behalf of


the President

Moreover, by letter filed on January 30,2014, the Assistant Director of


Administrative Resources of the CoordinationGeneral of Legal Affairs and
Human Rights of the Health Secretariat lodged an adhesive revision,
representing thePresident of the Republic and the Health Secretariat,
arguing in essence that the grievances listed below:
First offense. Regarding the assessment of the evidence
byJudge District15
Responsible authorities argued that the grievances and facts asserted by
the complainants are unfounded regardingalleged improper evaluation of
the evidence offeredduring the injunction, because although the District
JudgeDistrict did not analyze each and every one of the pieces of evidence
offered by theplaintiffs, the fact is that through the documents exhibited is
no claim of the plaintiffs credited because it is information of no scientific
value.
Second and Third grievances. Regarding the analysis that the

District Judge regarding the alleged violation of the complainants


fundamental rights16
On the other hand, the responsible authorities also argued that the
grievances of the complainants should be declared unfounded and
inoperative, because cannabis prohibitionestablished by the contested
legislation is a legal control and a valid protection of the right to health.
15 of

adhesiveResource review, folio 5-9.


16 adhesive Resource review, folios 9-30.

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

as established in the table of orientation of maximum levels of personal


consumption of various materials.

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.

PROCEEDINGS BEFORE THE APPELLATE COURT

The appeal aforementioned revision was referred to the Fifth Appellate


Court in Administrative Matters of the First Circuit, which, by car *****, *****
formed the record and the declared admissible appeal review.17
The Appellate Court ruled thatit lacked jurisdiction to hear the amparo
review, since it is matter on which there remained a problem of
constitutionality, specifically, with respect to Articles 235 last
paragraph, 237, 245, section I, 247, last paragraph, and 248 of the
General Health Law about which there is no case law, so
that the original jurisdiction of the High Court updating
to hear the present case.18 Accordingly, the Appellate Courtreferred the
case to the Supreme Court of Justice of the Nation. 19
IV. PROCESSING BY THIS SUPREME COURT

In view of the above, by order of April 9, 2014, the Supreme Court of


Justice of the Nation took its original competition, to hear this under review
in registering
17 Auto

admission. Notebook under review ***** index in theCourt,


Appellate folios 152-52.
18 Resolution of the Appellate Court. Notebook under review ***** index in the
Appellate Court, folios 368-380 back.
19 Office of referring the matter to the Supreme Court of Justice of the Nation. Notebook
amparo 237/2014 review, foja 2.

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

Needless First esta Chamber to rule onopportunity this application for


review, as the Fifth CourtCollegiate in Administrative Matters of the First
Circuit and the madecalculation in Its resolution of *****, concluding that
filing was made in the same time22 .
20 and

turn Registry Agreement. Notebook 237/2014 under review, pages 323-325.


Agreement. Notebook 237/2014 under review, hander327.
22 ResolutionAppellate Court. Notebook under review ***** index in the
Appellate Court, folios 372-372 back.
21 avocamiento

18

VII. STANDING AND ORIGIN


The plaintiffs filed an appeal to review, asserting procedural law that
accorded by paragraph (e) of Section I of Article 81 of the Law of Amparo,
according to which may appealreview against a decision issued by one
district judge.
Consequently, it is undeniable that if the ruling went to the
indirect amparo, ***** denied the protection to the complainants,
they have the legal standing to fight, having not satisfied the claim by which
promoted the request fordefense.
In fact, the origin comes from the fact namelythat the appeal was filed
against the interpretationthat a District Court held, in the sense that were
constitutional Article 235, last paragraph, 237, 245, section I,
247, last paragraph, and 248 of the General Health Law, considering
that they do not transgress the fundamental rights of
dignity, personal identity, personality rights,self-image, free development of
personality, self-determination,individual personal and physical freedom
and the right toones own health. Mindful of the above, it should be noted

that this appealis appropriate and was presented by legitimized part,


havingbeen filed by the complainants.On the other hand, the use of
adhesive revision was alsobrought by party entitled, since the public server
brought that on behalf of the President,they are entitled in the case in
accordance withArticle87 of the Law of Amparo.

19

VIII. STUDY BACKGROUND


The appellants originally raised, in their request for a defense on
unconstitutional grounds, several articles of the General Health Law,
arguing thatthey establish a "prohibitionist policy "regarding the
individual consumption of marijuana, believing that it unduly limited, among
others,the fundamental rights to personal identity, self-image,
free development of personality and self-determination, all in
relation to the principle of human dignity.
Accordingly the prohibition ofmarijuana involves the suppression of
behavior that gives theindividual a specific difference according to their
uniqueness. The appellants argued that this restriction is not justified and
that the imposition of asingle standard of healthy living is not admissible in
a liberal state,which bases its existence on the recognition of uniqueness
andhuman independence. In essence they argued that the ban on
marijuana is based on a prejudice sustained bymoral values and not on
scientific studies, thus revealing that thestate has not acted ethically
neutral.

In the judgment of amparo, the District Judge described as


unfounded the arguments of the plaintiffs, noting among other
things that the contested provisions do not limit the right of the
complainants to choose their appearance, activity or how they wish to
plan and live their lives, nor are they intended to impose models and

20

standards of living that are unrelated to the complainants, but that


they are directed to protect and make effective the right to
health of the general population.
Unhappy with that decision, the plaintiffs filed a petition
for review, which they argued primarily that--contrary to the
provisions of the District Judge--the contested rules impose
models and standards of living outside individuals, because the identity of
each person is respected only if allowed to act upon their own traits,
worldviews, conceptions ofthe good life. Inthis sense, they argued that
they "singularizaran" and would achieve those objectives through
marijuana use, in the same way thatother people achieved from the sports
they play,hobbies they enjoy, food they like and the company they keep,
with the state prohibiting and stigmatizing such behavior, except if its been
proven conclusively that such activityviolates the rights of others.
So, the First Chamber notes that the grievances
raised by the appellants, particularly those identified
as second, third, fifth and sixth, which together are
aimed at combating the District Judge's decision to consider
the contested constitutional rules, are essentially

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

the President of the Republic and the Health Secretariat, in


which the constitutionality of the provisions are sustained.
Before entering an analysis of the grievances, the
First Chamber considers important to note that although the request
for defense noted among the complainants to the moral person
named *****, we see that in the contested judgment the District Judge
declared inoperative all argumentsrelated to that entity, considering that
human dignityis a fundamental right it may just be inherent to
individuals.23In this sense, it does not appear that the complainants have
raisedwrong one in the appeal to combat ineffectiveness
decreed by the District Judge, so the First Chamber
considers that the determination question must be firm and,
therefore, the study carried out by the High Court over the right to
free development of the personality shall be limited only to
the following plaintiffs: *****, *****, **** * and *****.
It should be noted that while thearguments on the concepts of violation are
directed to challengegenerically the "prohibitionist policy" that prevents
plaintiffs from using marijuana, and the policy identifies the
contents of at least eight articles General Health Law (234,

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

of amparo, folios 149-165.

22

last paragraph and 248 of that law.24 Thus, since it is a decision


that was also not contested by the appellants, the First Chamber
understands that it must also be firm.
In order to justify the announced decision and
to respond to the arguments raised by the appellants in relation
to the constitutionality of the unclaimed items ordered by the
District Judge, the First Chamber considers it necessary to develop the
following points: (i) explain the regulatory framework of
narcotic drugs and psychotropic provisions of the General Health Act;
(ii) establish the impact of the legislative measure at issue
prima facie content of the fundamental right to free development of
personality;and (iii) determine whether the measure exceeds the
four steps of the proportionality test: (1) constitutionality of
the measure aims pursued; (2) suitability; (3) need; and (4)
strict proportionality. Finally, (iv) there are presented
findings of the constitutionality of the articleschallenged and
(v) the effects of the grant of protection needed.

I. Regulatory framework on the control of narcotics and

psychotropic substances in the General Health Law


Sections XXI and XXII of article 3 of the General Health Law 25
takes into consideration matters of public health, prevention and sanitary
control in the consumption of "drugs" and "psychotropic substances".26
24 Judgment

of amparo, folio XXX.


otherwise indicated, all items whose contents are listed in this
section correspond to the General Health Law.
26 Article 3 . In terms of this law, it is a matter of general health
[...]
XXI. The prevention of drug and psychotropic and
anti-drug program;
25 Unless

23

In this regard, in accordance withArticle 194 does "health check" to all


actionsof counseling, education, sampling, testing and, where appropriate,
application security measures and sanctions that the Ministry of Health
performs about the process, use, import and export of various substances
and objects, among which are narcotic and psychotropic substances.27
Specifically, health and control over narcoticand psychotropic substances
is regulated inChapters V and VI of Title Twelfth General Health Act and in
Chapter III of Title II of the Regulationof Health Products. In this regard, it
should be noted that theAct provides for a similar regulatory framework for
narcotics andpsychotropics. First, the legislature established a list to
determine which substances should be considered as narcotics and
psychotropic substances (Articles 234 and245). It determined that all acts
related tonarcotics or psychotropic substances, or any product that
contains, requires an "authorization" from the Ministry of Health and
XXII. The sanitary control of products and services and import and export.
important to note that according to Article 197 of the General Health Law, the
term "process" all activities relating to the production, processing, manufacturing ,
preparation, storage, mixing, conditioning, packaging, handling,
transportation, distribution,storage and sale or supply to the public.
Article 194. For the purposes of this title, the term disease control all the
actionsof counseling, education, sampling , verification and where appropriate, implementing measures
securityand sanctions exerted by the Ministry of Health with the participation of producers,
traders and consumers, based on that established the official Mexican standards and
27 is

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

However, Article 368 stipulates that "health authority" is the administrative


act by which the health authoritypermits a public or private transactions
personrelated to human health, in the cases and with the activities,
conditions and procedures determined by the General Health Act itself.
However,Articles 237 and 248 expressly prohibit the issuance of the
authorization have been referred in respect of certain substances
considered as a serious public healthproblem, among which are the
narcotic drug "cannabissativa, indica and American or Marijuana" and the
psychotropic "tetrahydrocannabinol '(THC), the isomeric 6A (10a), 6A
(7), 7 8,9, 10 9 (11) and its stereochemical variants, substances in
dispute in this appeal for review.29
In this regard, it is important to note that Articles 238 and 249 provide an
extraordinary course to allow the acquisition of narcotic and psychotropic
drugs referring to the aforementionedArticles 237 and 248 for purposes of
scientific research, forwhich it will be necessary that the body or institution
acts referred to in this Article may be made onlymedical andpurposes,to
forscientific and required, like the respective substances, authorized by the Ministry of
HealthProducts.
Regulation of Health
Article 44. The collection, processing, manufacture, preparation, mixing,
conditioning, packaging, handling, storage, marketing, importation,
exportation, prescription, supply, possession, transportation, employment, use, consumption and, in

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

concerned present a research protocol approved by the Health


Secretariat30
Thus, the First Chamber understands that the contested rules are subject
to a "system of administrative bans" which ispart of the regulatory
framework provisions of the General Health Law for the control of narcotic
drugs and psychotropic substances, which constitutes a legal obstacle to
lawfully perform all actionsnecessary to be in a position to carry out the
consumption of marijuana (planting, growing, harvesting, preparation,
conditioning, possession, transportation, etc.). For one, the last paragraphs
of Articles 235 and 247stipulate that the authorization for the studies and
actsrelated to narcotic drugs or psychotropic substances is subject to the
condition they have only"medical and / or scientific" purposes, excluding
the possibility that marijuanacan be used for "recreational or leisure"
purposes. The numerals 237 and 245, in conjunction with Article 248,
establishesan express prohibition so sharpthat the Ministry of Health was
unable to issue the authorizationsthat the complainants requested in
relation to the use of marijuanafor the purpose of exercising their right to
free development of personality.
Article 238 for scientific research only, the Ministry of Health
authorized agencies or institutions that have presented research protocol
30

approved by that agency, the acquisition of drugs referred Section


237 ofthis Act. Such organizations and institutions communicate to the Ministry of Health the
result of investigations conducted and as used.
Article 249 for scientific research only, the Health Department
may allow the purchase of psychotropic substances to which section I ofLaw,
Article 245 of this to be delivered under control bodies or institutions that have
presented research protocol approved by that Unit, which in turn
inform the said Secretariat the result of investigations conducted and howis
used.

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.

II. Analysis of the impact of the measure challenged in


the premium content facie the free development of personality

The modern theory of fundamental rights draws a distinction prerequisite


for understanding the way in which the constitutional courts often control
the constitutionality ofrules through the principle ofproportionality: the
scope of the fundamental right and the extent of their protection. 33
According to this distinction, the examination of the constitutionality of

a legislative measure must be carried out through a two-stage analysis.


First, it must be determined whether the contested provision affects the
prima facie scope or content of the right at issue. 34 In other words, it must
be established whether the contested legislative measure limits
33 Barak,

Aharon, Proportionality: Constitutional Rights and Their Limitations, trans. Doron


Qalir, New York, Cambridge University Press, 2012, p. 19.
34 Bernal Pulido, Carlos, The principle of proportionality and fundamental
rights, Madrid,CEPC, 2007, p. 45.

29

the fundamental right.35 At this stage of analysisis necessary to resort to


the interpretation of the relevant legal provisions. On the one hand, we
must determine thescope of the prohibition or obligation set by the
legislative provision at issue. On the other hand, we must also interpret the
constitutional provision that hosts thefundamental right in question, in order
to determine the scope orcontent of this. Thus, in this firststage, we must
determine if the behaviors are covered under the fundamental right in
question.If the conclusion is negative, the test should end at this stage
with the statement that the legislative measure at issue is constitutional. But
if the conclusion is positive, it upgrades toanother level of analysis.
In the second stage of analysis, it must be determined whether the
standard actually involved in the fundamental right is constitutional. So, at
this stage of the analysiswe should consider whether there is a
constitutional justification for legislative action to reduce the extent of
protection that initially granted the right. This exercise involves examining
whether the legislative intervention meets the requirements of the principle
of proportionality: a constitutionally valid purpose, suitability, necessity and
proportionality.

35 Barak,

cit., p. 26.

30

According to the above, the First Chamber proceeds to determine whether


the legislative measure limits the raw content of the facie right to free
development of personality.
First, it should be noted that the Mexican Constitution grants broad
protection to empower people, toensure the enjoyment of certain goods
which are indispensable for thechoice and realization of life plans
proposed by individuals.36 Thus, in general terms it can be said that
fundamental rights are accorded to "entrench" those goods against state
measures or actions of third parties thatmay affect personal autonomy.37 In
this way, the rightsconsidered to be "off limits" to state action are linked to
the satisfaction ofthose commodities that are necessary for the satisfaction
ofany plan of life.38
In this vein, rather than the more generic is required to ensure the
autonomy of people is thefreedom from any conduct that does not harm
others.39The Constitution and international treaties recognize a catalog of
"rights of freedom" that result inpermissions to perform certain actions that
are considered valuablefor the autonomy of individuals (expressing

opinions, movingunimpeded, freedom of association, freedom to adopt a


religion or other belief,the right to choose a profession or work, etc.), and
which also involvetargeting the government and third parties, since
imposing negative bans intervenes or obstructs the actions permitted by
36 Nino,

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

the fundamental right in question.40However, the right to free development


of personalityprotects a "residual area of freedom" notcovered by other
public freedoms.41 As the German Constitutional Court explained in Elfes,42
these fundamental rightsprotect the freedom of human performance of
certain"living space." These, according to historical experience, are more
likely to be affected by the government when a certain "vital space" is
operated through astate measure and is not expressly protected by a
specific right of freedom. In these cases, people can invoke the protection
of the right to free development of personality.
Thus, this law can come into play whenever an action will not be
supervised by a specific right of freedom. 43In this regard, the specialized
doctrine has indicated that theright to free development of personality
involves "a radical rejection of the ever-present temptation of state
paternalism,who think they know better than the people what is good for
them andwhat they should do with their lives, so it can be said that this
right is the constitutional proclamation that respects the rights of others,
that each human being is the bestjudge of their own interests" (emphasis
added).44

40 Alexy,

Robert, Theory of fundamental rights, trans. Carlos Bernal Pulido, Madrid,


CEPC, 2007, pp. 197-201.
41 Dez-Picazo, Luis Maria, System Fundamental Rights, 2nd ed., Cizur Menor,
Thomson Civitas, 2005, p. 70.
42 BVerfGE 6, 32, judgment of 16 January 1957. Quoted by the translation contained in
Kommers, Dolad P, and Sussel A. Miller, The Constitutional Jurisprudence of the Federal Republic of
Germany, 3rd ed., Durham, Duke University Press, 2012, p. 402
43 Eberle, Eduard J., "Human Dignity, Privacy, and Personality in German and American
Constitutional Law," Utah Law Review, 1997, p. 979.
44 Dez-Picazo, op. cit., p. 69.

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

this regard, see the thesis category "human dignity.LEGAL ORDER


MEXICANRECOGNIZED AS THE BASIS OF CONDITION AND OTHERRIGHTS
FUNDAMENTAL"[Ninth Period; Register 165813; Instance: plenary; Type of Thesis: Isolated;
Source: Judicial Weekly of the Federation and its Gazette; Volume XXX, December 2009
Subject (s): Constitutional; Thesis: P. LXV / 2009; Page: 8]
46 Judgment of January 6, 2009, resolved by the full Supreme CourtRegister:..
47 Ninth Period, 165 822, Instance: Full, type Thesis: Isolated, Source:
Judicial Weekly of the Federation and its Gazette, Volume XXX, December 2009 Subject (s): Civil,
Constitutional, Thesis: P. LXVI / 2009, Page:7.

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

actionsperformed by individuals in the exercise of personal autonomy


involve the decision to carry out that action, while decisions on issues that
48 BVerfGE

54, 148, judgment of June 3, 1980. Cited by the translation contained in


Kommers and Miller, op. cit., p. . 406-407
49 Eberle, Eduard J., "Observations on the Development of Human Dignity and Personality
in German Constitutional Law: An Overview", Liverpool Law Review Journal. of Contemporary
Legal and Social Policy, vol. 33, no. 3, 2012, p.211.
50 According to the German Constitutional Court, the free development of personality
is an independent fundamental right that guarantees a general freedom of action. In this
regard,Case BVerfGE 6 36
51 Eberle, "Observations ...", op. cit., p. 211.

34

in principle concern only the individualnormally require certain actions to


materialize. Inany case, it seems that it is a matter of emphasis. So while
there are situations in which the most important aspect of personal
autonomy is seen in the action taken, there are other situations in which the
exercise of autonomy is seen mostclearly through the decision taken by
the person.
Moreover, it is worth noting that in comparative lawthere are other
fundamental rights that serve asimilar free development of personality
function.
InAmerican law, for example, from the right to due process in its
substantive aspect it has developed what is known as "decisional
privacy."52 This aspect of the right to privacy isdirectly related to personal
autonomy, since it notonly guarantees an area of freedom in making
decisions that onlyconcern the individual, but also provides coverage for a
generic freedom of action, which includes aspects such as how to behave
in public or the lifestyle of the individual. 53According to what has been

presented, it seems clear that theright to free development of personality is


a right whosecontours should leave jurisprudential needs. In comparative
law,the form in which it has carried out the specification process is to ask
from specific cases whethera particular action or individual choice is
protected under this law.
52 It

is worth noting that in American law the "decisional privacy


"it distinguisheswhat is known as the" privacy physical "and" informational privacy ". While the
right to privacy entails physical protection for the home and personal integrity
against unjustified interventions by third parties, the right to informational privacy
givesthe individual control information related to himself. In this regard, see
Mayer-Schnberger, Viktor, "Strands of Privacy: Informational Databases and DNA and thePrivacy
OECDGuidelines" (ed.), David Lazer, The Technology of Justice: DNA and the Criminal Justice
System, Cambridge, MIT Press 2004.
53, Rossler Beate, The Value of Privacy, Cambridge, Polity Press, 2005 p.89

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

and Miller, op. cit., pp. 400- 404.


55 Kommers and Miller, op. cit., p. 413.
56 Brashear, Bruce, "Marijuana Prohibition and The Constitutional Right of Privacy: An
Examination of Ravin v. State "Tulsa Law Review, vol. 11 1975, p. 571.

57 The

US Supreme Court has recognized in several cases the right of


individuals to decide on the use of contraceptive methods. In this regard, see among others
Griswold v. Connecticut, 381 US 479 (1965), which declared unconstitutional a state law
prohibitingthe distribution of information about birth control to married persons; and Eisenstadt v.
Baird, 405 US 438 (1972), which held that the right to privacy protects thedecisions
individual on contraception.
58 With regard to educational issues, Wieman v. Updegraff, 344 US 183 (1952), the
Supreme Court held that the right to privacy gave coverage to the freedom of
research, thought and education; Martin v. Struthers, 319 US 141 (1943) noted that
the right to privacy also included the right to distribute, receive and read information,
and Meyer v. Nebraska, 262 US 390 (1923) established that the right to privacy also
included the right to access the full spectrum of available knowledge based on
theFirst Amendment.
59 On this issue, the US Supreme Court ruled in Pierce v. Society of
Sisters, 268 US 510 (1925), that the right to privacy protected in turn the right to educate
one's children as one chooses.
60 In this regard, in Prince v. Massachusetts, 321 US 158 (1944) recognized that the
right to privacy protects state interference private sphere of family life, and
in Loving v. Virginia, 388 US 1 (1967) held that the right to privacyincluded
alsothe right to decide who you want to marry a person.

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

Subsequently, the Supreme Court has statedrepeatedly that the decision


to stay married or not iscovered by the right to free development of
personality. So, at the judgment of the direct amparo 917/2009
61 Ninth

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

review,62 whenanalyzing the constitutionality of no-fault divorce in the civil


legislationof the Federal District, the First Chamber held that "respect for
thefree development of personality justifies recognizing greater importance
to the individual's will when you no longer wish to remain connected with
your spouse, therefore, the right to process the dissolution of marriage, can
not be made dependent on thedemonstration of cause some, for that
determinant is simplythe end of that will expressed in demand, resulting
inadmissible that the State is endeavoring to maintain in force the marriage
of those seeking divorce to consider itsparticular situation becomes
irreconcilable.
In similar terms, in the direct protection under review1819/2014,63 the First
Chamber explained that "with the expression of the decision to not
continue the marriage, the right to the free development of personality is
exercised, for deciding to not to continue to remain married, a change of
marital status, is the way the individual wants to live his life project; the way
the individual chooses hisfreely autonomous life project",which was

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

of September 23, 2009, resolved unanimously votes of the four


Ministers Jose Ramon Cossio Diaz, Juan N. Silva Meza, Olga Sanchez Cordero of Garcia
Villegas (Rapporteur) President Sergio A. Valls Hernndez. Absent Minister Jos de Jess
Gudio Pelayo.
63 Judgment of 22 October 2014, decided by a majority of four votes of the
Ministers Arturo Zaldvar Lelo de Larrea, Jorge Mario Pardo Rebolledo, Olga Snchez Cordero
GarciaVillegas (Rapporteur) and Alfredo Gutierrez Ortiz Mena. Dissident: Jose Ramon Cossio Diaz,
who reserved its right to formulate dissentingRegistration.
64, Tenth Season 2,008,492, Instance: First Chamber, Thesis Type: Isolated,
Source: Gaceta Judicial Weekly of the Federation, Book 15, February 2015, Volume II,
Matter (s): Constitutional, Thesis: 1a. LIX / 2015 (10a.), Page: 1392

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

of February 25, 2015, determined by a majority of four votes of the


Ministers Arturo Zaldvar Lelo de Larrea (Rapporteur), Jorge Mario Pardo Rebolledo, Olga Snchez
Cordero Garcia Villegas and President Alfredo Gutirrez Ortiz Mena against issued by the
Minister Jose Ramon Cossio Diaz, with regard to competition and by a majority of three
votes Ministers Arturo Zaldvar Lelo de Larrea (Reporter ), Jose Ramon Cossio Diaz (who
reservesthe right to make concurring) and Olga Sanchez Cordero Garcia Villegas,
contraryto those issued by the Ministers Jorge Mario Pardo Rebolledo and President Alfredo
Gutirrez Ortiz Mena (who reserved the right to formulate dissenting), which
refersto the background.

39

cover in principle to a variety of actions and decisions connected directly


with the exercise of individual autonomy. However,in this case the first
question to be answered is whether thedecisions and actions thus
described are protected by the law in question.
The complainants claimed that Health unlawfully refused to grant them
permission to"use marijuana regularly, personally and for purely
recreational purposes." They claimed that they recognized "correlative
rights to the consumption ofmarijuana, such as planting, growing,
harvesting, preparing, possession, transport in any form, employment,
consumption and use, in general, any act related to the recreational use
of marijuana," on the understanding that his request expressly excluded
commercial transactions, such asdistribution, sale and transfer of the
same.

The appellants argue that thefree development of personality gives cover


to the decisionto consume marijuana for recreational purposes and,
consequently, alsoall the necessary tools to be able carryout their own
consumption (planting, growing, harvesting, preparation, preparation,
possession, transportation, etc.) In this regard, the First Chamber
understands that the fundamental right in question allows prima facie that
seniorsmay decide without state interference decide what type of
recreational or leisure activities they want to enjoy.

40

The choice of a recreational or leisure activity is a decision that


undoubtedly belongs to the sphere ofpersonal autonomy protected by the
Constitution. Thatchoice may include, as in this case, the intake or
consumption of substances that produce experiences that in some way
"affect" the thoughts, emotions and / or feelings of the person.66 In this line,
the decisionto smoke marijuana can have different purposes, including "the
relief of stress, the intensification of perceptions or include the desire for
new personal and spiritual experiences."67 So, being"mental experiences",
they are among the mostpersonal and intimate that anyone can
experience, sothat the decision of an individual of senior age to "affect" his
personality in this way for recreational or entertainment purposes is
covered under for the right to free development of personality.68
Now, discussed in the regulatory framework for the control of narcotic and
psychotropic substances in theGeneral Health Law and the premium

content of the facie rightto free development of personality, this First


Chamber is in aposition to conclude that the articles of that system
identified by the District Judge acts claimed aseffectively influencing the
premium content of the facie fundamental right, because they constitute a
legal obstaclepreventing the plaintiffs from exercising the right to decide
what recreational or leisure activities they want to perform, while also
66 In

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

preventingthem from lawfully carrying out all necessary actions and


activitiesto realize that choice through the consumption of
marijuana.
That being said, the free developmentof personality is not an absolute valid
right valid, so youmay be limited in order to pursue some constitutionally
valid goal. In this regard, it is important to identify the limits to this right that
have been recognized by the HighCourt. Under this theme, in that direct
protectionof the 6/2008 plenary Supreme Court she explained that this
right "is not absolute, as is its limits in the rights of others and public order".
As can be seen,these outer limits to the right to work as provisions
authorizing the legislature to intervene in the free development of the
personality to pursue those aims.69
In this vein, the specialized doctrine has stated that fundamental rights and
their outer limitsoperate as principles, so that relations between the law

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

this understanding the way in which the outer limits of theoperate,


rights see Prieto Sanchis, Luis, constitutional justice and fundamental rights, Madrid,
Trotta, 2003, p. 222
70 Idem.

42

In other words, the measure in question has to pass a test of proportionality


in the broad sense.
According to this, the fact that the Supreme Court has established that the
free development of personality givesfacie premium coverage to a specific
duty to decide andimplement whatever recreational or leisure activity you
want to perform, whichmay include the use of certain substances for
leisure orentertainment, does not mean that this right is final.
In this sense, the fundamental right adopts double face: the proportionality
test presents a basisand only after it has completed the scrutinyacquires a
definitive character, so that if the legislative measure limiting the right fails
the test of proportionality, the final content of the right will coincide with the
attributed prima facie;however, if the law is justified in light of the

proportionality testthe contents of the right will be smaller than the


apparent or prima facie.71
III. Analysis of proportionality in the broad sense of the
measure challenged
As explained above, in a second stage of analysis must be determined:
whether the rule involved in theinitially area protected by the fundamental
law isconstitutional. So, at this stage of the analysis we should consider
whether inthere is justification from the point of view of the constitutional
casethat the legislative measure limits the raw content of the facie right.
This exercise involves establishing whetherthe legislative action pursues a
constitutionally valid purpose and examines whether the measure exceeds
71 Ibid,

p. 221.

43

an analysis of strict suitability,necessity and proportionality.


In the case, remember the measure whose constitutionality is analyzed is
the "system of administrative bans" set by the contested articles, which
form part of the regulatory framework established by the General Health
Lawon the control of narcotic drugs and psychotropic substances. In this
regard, it shouldbe clarified that the "punitive system" under the General
Health Lawand the Federal Penal Code in relation to this issue will not be
subject to any ruling ofconstitutionality. In thisline, it also reiterates that
neither the request of the complainants before the administrative authority
or the request for defense includedrequest for a "commercial market" for
marijuana, hence the First Chamberdeems appropriate to clarify that there
will be no pronouncement on this activity.

1. The constitutionality of the aims pursued by the measure


First, we must identify the aims pursuedby the contested measure to
determine whether they are constitutionally valid. This stageof the analysis
presupposes the idea that there is any purpose can justify limiting a
fundamental right.72. In effect, we are considering whether theends can
justify the legislative intervention on the exercise of fundamental rights.
72 Barak,

op. cit., p.245.

44

In this vein, fundamental rights, propertycollective and legal rights as


guaranteed constitutional principlesconstitute legitimate purposes
underlying theintervention of the legislature in the exercise of other rights. 73
However,it should be clarified that thestate can not require people to act in
accordance witha particular model of virtue.74
In the caseof the precepts thatmake up the "system of administrative
bans" it appears that the legislature considered it necessary to prohibit the
administrative authorization to perform all activities related to marijuana,
with special attention paid to the harmful effects associated with that
product in the "health" and "public order." Indeed, the General Health Law
was tointended to regulate the right to health protection. 75 In thisregard,
among the goals envisaged in the law itself was to promote the physical
and mental well-being of man, to contribute the full exercise of their
abilities." (Section I ofArticle 2) Thus, in order to achieve that level of

welfare, the legislature considered it necessary to implement a "health


check" of psychotropic and narcotics, under the premise that their use is a
73 Bernal

Pulido, op cit., p. 697.


74 Nino, op. cit., pp. 425-426.
75 This law replaced the former Health Code and was promulgated on February 7, 1984.
From that date have not been renovated Articles 235 and 237, which were challenged by
the complainants.

45

problem for public health in that both generate dependency in the


consumer.76
Later reforms to various provisions were made in order to better clarify
which substances can be considered narcotics or psychotropic
substances77 Sothe legislature understood that such details are moved in
"toprogressive realization of the right to health protection, contained in
article 4. of our Constitution substances:."78 In this regard, in thepreamble
to the latest amendment to Article 245 of the General Health Law, in which
were added as psychotropic substances mephedrone, piperazine, TFMPP,
midazolam andK2,79 it was noted that "one of the most serious problems of
public healthserious at the international level is relative to consumption and
marketingof drugs, a phenomenon that in recent years has experienced

increasing complexity due to the internationalization of illegal building


activities, production and smuggling ofprecursor chemicals."80
In this vein, the preamble also stated that "[t]hese behaviors represent an
increase in illicit activities and have allowed criminal groups amass great
resources andincome; theproblem should be analyzed from the
perspective of the impact that causes on public health, as this phenomenon
76 So

warns of the preamble to the Act, and their corresponding


legal opinions. In this regard, see: Preamble, Chamber of Chamber of
Deputies, Mexico, Federal District November 15, 1983 on the initiative of the GeneralLaw
Origin:.Health
77 In this respect, the December 23, 1987 was enacted an amendment to the Articles 245,
247 and 248 of the General Law of Health. This last item has not been modified since.
78 Opinion of the chamber of origin of the Joint Commissions and General Health
First Section of the Legislative Studies of the Senate of 26
November1987.
79 This reform he issued the January 7, 2014 and was the last to be made to article
245.
80 Reason of January 23, 2012 by Federal Executive in the
draft reform of sections I and III of Article 245 of the General Law Health.

46

causes theincrease of diseases, disorders and even death, all a result of


their addictive use, making its effects feltin the social, economic, and
political fields.81
Moreover, it is noteworthy that the current Article 1 of the General Health
Act provides that this law aims toregulate the right to the protection of the
health of anyperson in the terms of Article 4 of the Constitution, and to
establish the basis and methods for access to health services and the
participation of the Federation and the states in terms of "general health".
According to the law itself, thisconcept includes, among other things, both
the preventionof drug and psychotropic substances as the existence of a
program against drug abuse (section XXI of article 3).

In accordance with the foregoing, we conclude that the purpose of the


regulatory framework for the control of narcotic and substances
psychotropic referred to in the General Health Act is to protect the "health"
and "public order", since under a systematic interpretation of the system as
well as the different processesto amend the law, it can appear that the
legislatureintended to ensure the health of drug users and protect society
from the harmful consequences ofdrug use, since it was considered that
thisactivity has harmful effects both for the consumer and for society in
general.
81 Reason

for January 23, 2012 by the Federal Executive, in the


draft reform of sections I and III of Article 245 of the General Health Law.

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

people have access to health services.84 In the direct protection under


review4321/2014,85 the First Chamber acknowledged that in order to
safeguard andprotect the human right to health, the State must undertake
theactions necessary to achieve that purpose, such as policy development,
quality control of health services,identifying the main problems affecting
the publichealth, etc. In this sense, we can say that theGeneral Health Act
identifies marijuana as a public health problem.
Closely related to the protection of public health is protecting public order.

While it is difficult to definewhat this constitutional principle is,86 it is a


conceptthat refers to the welfare of society in general. If so understood,
there is no doubt that public policy is thepursuit of collective social goals
throughlegislative or public policy decisions. Moreover, it should be noted
thatthe Constitution recognizes as a legitimate state interest the protection
of society as a whole.
In contrast, the prohibition of marijuana by mere moral self-degradation
involves not pursue a legitimate purpose.The Constitution does not impose
an ideal of human excellence; it allows each individual to choose his own
life plan and adopt the model each person considers valid, while not
84 P.

/ J. 136/2008, based on the Ninth Period Judicial Weekly of the Federation


and its Gazette, Volume XXVIII, October two thousand eight, sixty-one page, under the heading:
"HEALTH. THE
RIGHT TO PROTECTION UNDER YOUR ARTICLE on the 4th., THIRD PARAGRAPH, OF THE
CONSTITUTION OF THE UNITED MEXICAN STATES, is a
socialresponsibility.
"85 Judgment of June 10, 2015, determined by a majority of a majority of four votes
of the Honourable Ministers Jose Ramon Cossio Diaz, Jorge Mario Pardo Rebolledo (Rapporteur), Olga
Snchez Cordero Garcia Villegas, and President Alfredo Gutirrez Ortiz Mena, contrary
issued by the Minister Arturo Zaldivar Lelo de Larrea, who said that it reserves the right
to formulate an individual opinion.
86 The principle of public order is recognized in the Constitution in Articles
6, first paragraph, 16, eighth paragraph, 115, section VII, 122, FIFTH BASE, first paragraph, 94
paragraphF)and 130 second paragraph.

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

promote a particular clear model of personal virtue. As explained, the law


seeks toprotect the health and public order.Once it has been established
that the regulatory framework for thecontrol of narcotic drugs and
psychotropic substances provided for in theGeneral Health Law is a
constitutionally valid purpose, we must now analyze whether the prohibition
of marijuanafor recreational purposes and therefore the ban on all the
necessary tools to be able to carry actionsout their own consumption
(planting, growing, harvesting,preparation, possession, transportation,
etc.), is a measureappropriate to protect the health and public order.
87 Nino,

op. cit., p.423.


to some studies, the effects of marijuana on school andlife
professionalof the average consumer are unclear. Although it has been associatedpoor
withschoolperformance frequency of use, it has also been suggested that this may be due to
other causes, such socioecmicos and cultural conditioning of those who consume it. In this
regard,see Caulkins, Jonathan P, Hawken, Angela Kilmer, Beau, and Kleiman, Mark, Marijuana
Legalization: What Everyone Needs to Know, New York, Oxford University Press, 2012, p. 77. In
this vein, in a survey conducted in Mexico City found that 70% of
marijuana users are working, 43% study and 20% study and work. Cf. Zamudio Angles,
Carlos Alberto and Castillo Ortega, Rain, First survey of users of illegal drugs inCity,
Mexico Mexico, Collective for an Integrated Drug Policy to the AC, 2012.
89 "amotivational syndrome" ("syndrome amotivational ') is defined as a pattern of
behavior characterized by a lack of motivation, energy and initiative. Cf. Hall, Wayne,
Degenhardt, Louisa, and Lynskey, Michael, The Health and Psychological Effects of Cannabis Use,
2nded.,
Canberra, Australian Government Publishing Service, 2001, p. ix.
88 According

50

2. Suitability of the measure


At this stage of scrutiny we should examine whether the measureis an
appropriate means to achieve the ends sought by the legislature. In this
regard, consideration of suitabilitypresupposes an empirical relationship
between the right interventionand the intended purpose of such
involvement, it is sufficient that the measurecontributes in some way and to
some degree to achieve the purpose sought by the legislator.90 Thus, the

suitability of a legislative measure must beshown from scientific knowledge


or social convictionsgenerally accepted.91However, in this case we must
determine whether the "systemof administrative bans" set by the items
contested is an appropriate measure to protect health and public order.
Before carrying out such scrutinyit is essential to make some
methodological considerationsabout how to conduct the examination of the
suitability of the measure.First, the legal literature that addresses the issue
of the adequacy the of prohibition of consumption of drugs,it is sometimes
often noted that this analysis is to determine whether the measure
effectively reduces the consumption. Supporters of the analysis of
adequacy onsider that a ban which in fact proves to be ineffective in
90 Although

in American law the proportionality test is not used


whenanalyzes the constitutionality of a measure usually done a similar analysis to test
suitability. In this regard, see for all Bates v. Little Rock 361 US 516; Roe v. Wade, 410 US
113 (1973); McLaughlin v. Florida, US 379 184 (1964). In connection with the ban on the
consumption of marijuana, American literature also agrees on the need for
such restrictions outweigh intense scrutiny. On this point, see Weber, Tim,
"Would Government of Marijuana Prohibition Pass Strict Scrutiny?" Indiana Law Review, vol. 46,
2013, pp. 529-556; and Carcieri, Martin D., "Obama, the Fourteenth Amendment, and the Drug
Warm" Akron Law Review, vol. 44, 2011, pp. 303, 307-308, 311-312.
91 Bernal Pulido, op.cit., P. 733.

51

reducing consumption.92 On this point, there are indeedmany studies


showing that the ban does not deterconsumption.93 Thus, in the present
case it could be argued that the"system of administrative prohibitions" set
by the articlescontested has failed to reduce marijuana use. 94 Inthis line,
for example, data from the National Addiction Surveyindicate that between
2002 and 2008 the consumption of illegal drugs increased from 4.6% to
5.2% among the population ages 12 to 65, 95 whichcould be interpreted as
meaning that the system of prohibition is ineffective in reducing

consumption.However, the First Chamber considers that the methodology


set out above is inadequate to determine the suitability of the contested
measure . In this vein, we accept that theanalysis performed in this manner
would lead to declareunconstitutional any prohibition or obligation that was
ineffective in achieving the mandates established by those rules. In this
92 Uprimny,

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

An alternative way to analyze the suitability is to argue that the "system of


administrative bans" setby the contested items will be suitable to achieve
the aimspursued by the legislature, consisting of the protection of health
and public order, to the extent that an empirical relationship exists between
the consumption of marijuana and certain damages to health and public
order. In other words, ifmarijuana does not cause injury or damages to
health or associety a whole, the ban will not be a suitable measure
to protect these constitutional objectives. The examination of fitness then
requires corroborationof the existence of an empirical relationship between
usemarijuana and certain states of affairs that can be characterized as
damages to health or society.
Now, if you examine the literature that hasanalyzed the effects of the
recreational use of marijuana, it is possible to identify at least the following
states of thingsnormally considered to be associated with the recreational
use ofmarijuana: damages to health; propensity to use "harder" drugs; and
incitement to commit other crimes. So, in the next section marijuana will
96 In

the literature the "primary problem" caused by thediffer.


abuse of a psychoactive substance, of the "secondary problems" arising from policies
controlthat States adopt against substance Cf. Uprimny, Guzman and Vine, op. cit., p.
108.

53

be evaluatedregarding the causes of the above damages to health and


public order.It should also be pointed out that to pass the test of suitability it
will be enough that such damages exist, regardless of grade. In other
words, to find constitutional justification for the prohibition of marijuana from
the point of view of the adequacy of the measure, it is necessary to show
that it affects the health and public order, even if that involvement is

minimal.97 Thus, an intervention maybe considered suitable if the


correlation between means and end is positive, regardless of their level of
efficiency.
According to the above, then the court will analyze whether there is
empirical evidence to support the belief that marijuana causes the damage
or damages identified above.
To corroborate the existence of such a relationship, the First Chamber will
rely on the scientific literature that has addressed this issue, as well as
several empirical studies available on the subject. As a preliminary
observation, it is worth noting that theavailable evidence shows that indeed
marijuana causes harm or damages of various kinds. However,as shown
below, some of these damages havebeen confirmed conclusively, while
others areunlikely or that are mere speculations.It is worth noting that the
uncertainty largely explains thefact that it is difficult to determine whether
marijuana use causes adverse effects on health and public order or if
97 According

to the Global Commission on Drug Policy, public drug policies


should be based on evidence showing that indeed these will help reduce damage to the
health, safety of people and society in general. Open Society Institute, op. cit., p. 5.

54

this is just a simple correlation98


A.Impact on Health
In general, the studies agree that from the evidence that exists, marijuana
use inadults does not pose a significant risk to health, except when it is

used chronically and excessively.99 In relation tothe effects caused by


marijuana on the health of people, the literature distinguishes overrides
chronic. So while the first place persists only for duration of the poisoning in
the body, the second persist even if the consumer does not feel
intoxicated.100Temporary alterations occur in the immediate aftermath of
marijuana use. Some of the effects producedare panic, anxiety reduction,
alertness, stress, increased sociability, gradual reduction of cognitive and
motor functions, enhanced perceptions ofreality--colors, flavors,
sensations--or visual and/or hearing hallucinations. 101 So, being dependent
98 On

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

So as regards temporary marijuana intoxication, research indicates that


these effectsare reversible and do not represent a provenhealth risk.102
The alleged existence of chronic disorders asa result of consumption is
controversial in theliterature. Studies indicate that permanent implications
are unlikely or minimal, their persistence isuncertain and may even have

originated from a plurality ofdifferent factors consumption.103 An example of


the latter situationis the association found between smoking marijuana and
respiratory cancers,104 which could be explained because many marijuana
users also smoke tobacco,implying that the existence of a causal link
between marijuana use and cancer is not proven. 105
psychologically vulnerable, such as people with schizophrenia. In this regard, see Ashton,
Heather, "Pharmacology and Effects of Cannabis: A Brief Review", The British Journal of
Psychiatry, vol. 178, no. 2, 2001, pp. 101-106.
102 Douaihy, Antoine, "Cannabis Revisited" UPMC Synergie, 2013, pp. 1-9.
103 Ashton, op. cit., pp. 101-106. As an example, a study shows, among other
things, that there is uncertainty about whether the adverse effects associated with marijuana are
causally related to its consumption, which is not clearly address the relationship between
consumptionand depressive disorders or emotional damages that cognitive
orintellectual intensity and reversibility of the impact is uncertain, and consequences
psychoticare subject to the consumer suffers any special susceptibility to
psychiatric disorders. In this regard, see Hall and Degenhardt, op.citMathieu.;
104 In this regard, see Mehra, Berthiller, Julien, Straif, Kurt, Boniol, Voirin,
Nicolas; Benham-Luzon, Veronique; Ayoub Ben Wided, Dari, Iman, Laouamri, Slimane, HamdiCherif, Mokhtar, Bartal, Mohamed Ayed Ben Fahrat and Sasco, Annie, "Cannabis Smoking and Risk
of Lung Cancer in Men: A Pooled Analysis of Three Studies in Maghreb ", Journal of Thoracic
Oncology, 2008, vol. 3 no. 12, p. 1398; Reena, Moore, Brent A., Crothers, Kristina, Tetrault,
Jeanette; Fiellin, David A., "The Association Between Smoking and Lung Cancer Marijuana. A
Systematic Review ", Archives of Internal Medicine, vol. 166, 2006, pp. 1359-1367; and Hashibe, Mia,
Morgenstern, Hal, Cui Yan, Tashkin, Donald P., Zhang Zuo-Feng, Cozen, Wendy, Mack, Thomas
M., and Greenland, Sander, "Marijuana Use and the Risk of Lung and Upper aerodigestive Tract
Cancers: Results of a Population-Based Case-Control Study, "Cancer, Epidemiology, Biomarkers &
Prevention, Vol. 15, no. 10, 2006, pp. 1829-1834.
105 on this discussion, see Caulkins, Hawken, Kilmer and Kleiman, op. cit .; Hashibe,
Morgenstern, Cui, Tashkin, Zhang, Cozen, Mack, and Greenland, op. cit .; Hall and Degenhardt, op.cit;
Hall, Wayne, and Taylor, D. Robin, "Respiratory Health Effects of Cannabis: Position Statement of The
Thoracic Society of Australia and New Zealand", Internal Medicine Journal, Vol. 33, 2003, pp. 310313; Hall, Wayne, "What you Research over the Past Two Decades Revealed About The Adverse
Health Effects of Recreational Cannabis Use?" Addiction, vol. 110, no. 1, 2015, pp. 19-35.

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

studies that said the effectsnormally considered "chronic" are essentially


reversibleafter consumption is suspended for a variable period of time.110
Similarly, studies agree that therelationship between marijuana and
psychotic or mental disorders is unclear,111 except in consumers who are
susceptible to mental illness. In this line, it has not been shown
conclusively that consumption producedamage in the reproductive
systems of the consumer,112 nor is thereevidence that marijuana generates
a permanent impairment inthe cardiovascular system,113 nor has it been
106 Al

respect, see Royal College of Physicians of London, Cannabis and


Cannabis-BasedMedicines. Potential Benefits and Risks to Health, London, 2005; Joy, Janet E, Watson,
Stanley, and Benson, John A (eds.), Marijuana and Medicine: Assessing the Science
Base, Washington,DC, National Academy Press, 1999.
107 Ballotta, Danilo, Bergeron, Henri, and Hughes, Brendan, "Cannabis Control in Europe,"
SharonRodner Sznitman, Brje Olsson, Robin Room (eds.), A Cannabis Reader: Global Issues
and Local Experiences, Perspectives on Cannabis Controversies, Treatment and Regulation in
Europe; Lisbon, EMCDDA, 2008; and Report by the Advisory Committee on Drug Dependence, op.
cit.
108 Ballotta, Bergeron, and Hughes, op. cit.
109 Ashton, op. cit., pp. . 101-106
110 As an example, see Solowij, Nadia, Cannabis and Cognitive Functioning,
Cambridge, Cambridge University Press, 2006; and Pope, Harrison G., Gruber, Amanda J., Hudson,
James I., Huestis, and Marilyn A. Yurgelun-Todd, Deborah, "Neuropsychological Performance in
Long-term Cannabis Users", Archives of General Psychiatry of 2001, vol. 58, no. 10 pp. Number 909
915.
111 Zammit, Stanley Moore, Theresa HM, Lingford-Hughes, Anne Barnes, Thomas R.
E., Jones, Peter B. Burke, Margaret, and Lewis Glyn, "Effects of Cannabis Use on Outcomes of
Psychotic Disorders: Systematic Review, "The British Journal of Psychiatry, vol. 193, no. 5. 2008,
pp. 357-363; Hall and Degenhardt Lynskey, op. cit., p.75.
112 Hall, Degenhardt and Lynskey, op. cit., p.56.
113 Hall, Degenhardt and Lynskey, op. cit, p. 64.

57

proven that prolonged severe cognitive damages occur similar to those


observed after chronic alcohol consumption.114
Under such conditions, the First Chamber notes that while the medical
evidence shows that marijuana cancause damage to the health of
consumers, it isless than or similar to those damages produced by other

substances not prohibited such as alcohol or tobacco. So it can be


concluded that the damage to health from the consumption of marijuana is
not serious.
B. Development
In the scientific literature, experts usually distinguish between abuse and
substance dependence. While considering abuse from the continuous use
of drugs, the agency requires that consumption meet additional criteria,
such as development of drug tolerance,withdrawal and consumption
interference with the developmentof other consumer activities.115 In this
regard,regular marijuana users do not necessarily qualify as drug addicts.
However, there are clear differences in the literature regarding the
frequency with which the drug ispresented in marijuana users. Additionally,
there are discrepancies in the period and intensity of consumption that are
necessary for marijuana to cause some degree of addiction. In this regard,
there are studies that suggest that there is a low degree of probability that
marijuana produces dependence. Indeed, according to this research not
114, Hall

Degenhardt and Lynskey, op. cit, p.86.


Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
DSM-5, 5th ed., Washington, DC :, New School Library, 2013, p. 483.
115 American

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

Stanley, Watson, and Betson, op cit.


Hawken, Kilmer and Kleiman, op. cit., p. 66
118 Hall and Degenhardt, op.cit; Hall and Degenhardt Lynskey, op. cit .; Ashton, op cit., Pp. 101106.
119 Hall, Degenhardt and Lynskey, op. cit.
120 Hall and Degenhardt, op.cit .; Hall and Liccardo Paccula op. cit .; Hall, Wayne, and Degenhardt,
Louisa "Extent of Illicit Drug Use and Dependence, and Their Contribution to the Global Burden of
Disease," Lancet, vol. 379, no. 9810, pp. 55-70.
117 Caulkins,

59

C. Propensity to use "harder"drugs.


In general it can be said that available studies show that marijuana has a
low level of incidencein the consumption of other riskier drugs riskier.121
However,it is true that they have identified associations between

marijuana useand consumption of more intense drugs likeheroin or


cocaine.122 In this regard, some studies have tried toexplain these
correlations from a pharmacological perspective,arguing that the chemical
effects of marijuana are conduciveto the consumption of other narcotics.123
However, this approach has been contrasted with various social and
contextual explanations that understand the phenomenon from the socioeconomic, cultural and biological conditioning of the consumer.124 Thus, it
can be said that theseapproaches to the problem which are based
essentially on thehypothesis that there are a number of reasons beyond
their ownmarijuana consumption for the use of other drugs are more
empirically supported.125
121 Hall

and Degenhardt, op.cit.


Denise B., Examining the Gateway Hypothesis: Stages and Pathways of Drug
Involvement in Kandel, Denise B. (ed.), Stages and Pathways of Drug Involvement. Examining the
Gateway Hypothesis. New York, Cambridge University Press, 2002, pp. 3-18.
123 Yet studies have supported this explanation, say their results should
be examined carefully, recognizing that there are different explanations that
could make sense of a probable causal relationship, as genetic or social factors. As
an example, see Emmet, David and Nice, Graeme, What You Need to Know About Cannabis:
Understanding the Facts, London, Jessica Kingsley Publishers, 2009.
124 Hall, Degenhardt, and Lynskey, op. cit. In this regard, it may be noted that the relationship has been
explained from the fact that marijuana users usually have greater
opportunity to get other illicit drugs on the black market.
125 In this regard, see, inter alia Hall and Degenhardt, op.cit .; Wagner, Fernando A, and
Anthony, James C., "Into the World of Illegal Drug Use: Exposure Opportunity and Other
Mechanisms Linking the Use of Alcohol, Tobacco, Marijuana, Cocaine and" American Journal of
Epidemiology, vol. 155, no. 10, 2002, p. 918; Fergusson, David M, Boden, Joseph, Horwood,
John, "The Developmental Antecedents of Illicit Drug Use: Evidence From a 25-year Longitudinal
Study", Drug Alcohol Depend, vol. 96, Nos. 1-2, 2008, p.165; Backpack, Andrew, McCaffrey, Daniel,
Paddock, Susan ,. "Reassessing the Marijuana Gateway Effect" Addiction, vol. 97, No. 12, 2002,
p. 1493; Lessem, Jeff, Hopfer, Christian, Haberstick, Brett, Timberlake, David, Ehringer, Marissa, and
Smolen, Andy, "Relationship Between Adolescent and Young Adult Marijuana Use Illicit Drug Use",
Behavior Genetics, vol. 36, no. 4, 2006, p.498.
122 Kandel,

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

conclusion by noting that there is no conclusive evidence to show that


marijuana leads to the use of otherdrugs.127
Thus it can be said that the reports agreethat marijuana has a low degree
of impact on theconsumption of riskier drugs. In any case, it appears that
theconsumption of subsequent drugs is the result of several factors acting
together, but not simply the consumption of marijuana itself.128 In this
regard, for example, sociological studies showthat peer pressure or the
continued use of marijuana increases the likelihood that someone
consumedfirst,129 which of course does not mean consumption will grow
continuously.130
D. Incitement to commit other crimes
The evidence that marijuana use leads to an incitement to commit other
crimes is highly speculative.Indeed, several studies have concluded that
126 Joy,

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

marijuana is not a determining factor in the commission of crimes.131 First,


the correlation is too statisticallysmall to be considered significant.132
Furthermore, it is notedthat the commission of crimes and marijuana use
mayoriginate in the same social causes.

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

and Skardhamar op. cit., pp. 109-118.


Hawken, Kilmer, and Kleiman, op. cit., p. 75.
133 Caulkins, Hawken, Kilmer, and Kleiman, op. cit., p.74.
134 National Commission on Marihuana and Drug Abuse, Marijuana: A Signal of
Misunderstanding, 1972, pp. 70-71; and Report by the Advisory Committee on Drug Dependence, op.
cit.
135 Zamudio Angles and Castillo Ortega, op. cit.
136 Caulkins, Hawken, Kilmer, and Kleiman, op. cit., p. 74.
132 Caulkins,

62

the chances of causing road accidents.137 In fact,the effect is increased


when marijuana is combinedwith alcohol.138 It is important to note thatthe
decline in driving skills when marijuana is consumed is more variable than
when alcohol is ingested, since itseffects are subject to factors such as

dose and tolerancedeveloped by frequent consumption, among several


others.139
Thus, of the analyzed evidence it shows that marijuana does not encourage
the commission of other crimes. Although consumptionand crime are
usually associated situations, thismay be due to various social and
contextual explanations,as both may have the same courses causes. On
the other hand, many addicts face the punitive system of the state precisely
because of the existence of prohibitions onmarijuana. It was also found
that marijuana useitself adversely affects the ability to drivemotor vehicles
and may increase the likelihood of causingaccidents.
137 Hartman,

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

Conclusion on suitability analysis

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

64

proportionality test.The test of necessity implies, first, whether there are


other meansequal or superior to achieve the aims pursued and, second,
whether these alternatives involve with lower intensity the fundamental right
affected. The first aspect of the necessity test is very complex, since it
involves making acatalog of alternative measures and determining the
degree of suitabilityof these, ie, assess their level of efficiency, speed,
likelihood andthe material impairment of its object. 140
Thus, the search for alternative means could be endless and require the
constitutional court to imagine and analyze all possible alternatives.141
However, such scrutiny can bebounded by weighing measures that the
legislature consideredappropriate to similar situations or alternatives in
comparative law that are designed to regulate the same phenomenon.
In this vein, we will then examine whether the measures used to regulate
substances which causesimilar damage, such as tobacco or alcohol, are
equally or more suitable toprotect health and public order, and if they limit
140
141

65

Bernal Pulido, op. cit., p.750.


Bernal Pulido, op.cit., P. 742.

to a lesser degree the right to free development of personality. Moreover,a


comparative analysis was also performed with the alternatives to prohibition
of marijuana that have been implemented in comparative law.
A. Regulating marijuana-like substances
As shown in the examination of suitability of the measure, marijuana
produces adverse health effects similarin their intensity to those caused by
tobacco or alcohol, althoughvery different from those produced by other
narcotics andpsychotropic substances. Marijuana produces the same
respiratory problemsas other smoked substances,142 is lessharmful than
other substances such as opium, amphetamines andbarbiturates,143 and
the implications for health and social consequencesreported by those who
seek to control their consumption aremuch less severe than those reported
by people addicted toother substances, such as opium or alcohol.144
However, despite the similarities to tobacco and alcohol in terms of the
damagethat marijuana produces, legislators designed a "regime of
enabling controlled for the consumption of the twoformer substances.
Below are the most features are setimportant of the scheme prohibited.;
According to the General Law for the Control of Tobacco, the prohibition of
thesale, distribution and possession of tobacco by minors extends
Royal College of Physicians, op. cit.
Ballotta, Bergeron, and Hughes, op. cit; and Report by the Advisory Committee on Drug
Dependence, op. cit.
144 Report by the Advisory Committee on Drug Dependence, op. cit.
142
143

66

to public and private educational institutions. 145 Consumption of tobacco is


also prohibited in 100% smoke-free spaces; in public and private
elementary and secondary schools;and indoor areas of work whether
public or private.146 The production of and trade in tobacco are subject to
various administrative provisions.147 Finally, advertising of tobacco
products is allowed only when it is directed to adults through adult
magazines, mail and withinfacilities whose access is exclusively restricted
to adults.148
Similarly, the General Health Law establishesprohibitions to sell or supply
145 General

Law for the Control of Snuff:


Article 17. The following activities are prohibited:
I. Trade, distribution, donation, gift, sale and supply of products snuff to
minors;
II. Trade, distribution, donation, gift, sale and supply of snuff products
in public and private educational institutions of basic and secondary education, and
III. Employ minors in commerce, production, distribution,
supply and sale of these productsControl.
146 General Act Snuff
Article 26. It is prohibited for any person using or have to have on any
product of snuff in the spaces 100 % smoke-free snuff, as well as in schools
publicand private elementary and secondaryand higher education.
In such places be set inside and outside signs, logos and emblems
established by the Secretariat.
Article 27. In places with public access, or indoor work areas, public or
private, including universities and colleges, there may be areas
exclusively for smoking, which should in accordance with the
regulations:
I. Be located in open spaces or
II. In isolated interior spaces that have mechanisms that prevent the transfer of
particles into the spaces 100% smoke-free snuff and is not liable for
nonsmokers step.
147 These laws provide that the companies producing snuff should have a
health license and report the content of snuff products, the ingredients used and
emissions and their effects on health at the Ministry of Health and the public in general.
While those who trade, sell, distribute or supply products of snuff,
should within their businesses have announced the ban on the sale and supply to
minors, require buyers accreditation of age and display legends
warningabout the consumption of snuff.
148 General Control Act the Snuff:

67

alcohol to minors.149 As a control measure, the Ministry of Healthsets limits


for alcohol in the blood and expired air of the drivers of motor vehicles. 150
With respect toproduct advertising, the law states that all alcoholic
beverages shall displayon the packaging the words "abuse in the
consumption of this productis harmful to health," written in easily legible
type and contrasting colorswithout invoking or making reference to any
legal provision.151
B. Setting in comparative law:
Examples of Colorado, Washington State, the Netherlands,
Uruguay
Regarding marijuana, in comparative lawcomparative there may be
alternative methods of regulation.This section briefly explains some of the
regulations that are alternatives to a ban on the total consuption of
marijuana.
The state of Colorado, in the United States, allows the use of marijuana
and marketing in certain conditions.
149 General

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;

68

Permission is limited to consumptionby persons over twenty years and can


only be sold in quantities limited to an ounce to each resident and a quarter
ounce to nonresidents. Mass advertising is prohibited, especially if said
advertising can reachchildren. Moreover, cultivation and the distribution of
the product inshops is strictly controlled by thestate uthority responsible
for regulating alcohol and tobacco, which is achieved through a system of
licensing ofgrowers, producers, transporters and stores.152
Washington State, also in the US, takes theprocess of authorizing the use
of marijuana through the state agency that also regulates alcohol. Here
also isthe issuance of permits for trade and the strictly regulated amount of
sale and consumption. For example, driving with more than
five nanograms of marijuana concentration per milliliter of the blood
is a crime. In addition, sales of theproduct have a high tax burden and the
revenue collected isdevoted to education, research and treatment of
problemsassociated with this drug.153
In the Netherlands there is a different scheme for the regulation of
marijuana. Although this country has never formally legalized production,
this activity is not monitored or sanctionedeffectively. The trade of the
substance is restricted to coffeeshops, distribution centers which are
Room, Robin, "a market for Legalizing cannabis for pleasure: Colorado, Washington,
Uruguay and Beyond" Addiction, vol. 109, no. 3, 2014, pp. 345-351.
153 Room, op. cit., loc. cit.
152

69

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

70

places of sale and consumption (ii) ban on driving or operatingdangerous


equipment or substances under the influence of the substance; (iii)
prohibitions on publicizing the product; and (iv) restrictions on the age of
those who can purchase and consume. As can be seen, there are
measures that viewed as a whole do not prohibit the consumption
absolutely and, in contrast, only limit the use of the substance in very
bounded regulations.
It is important to note that where marijuana has been legalized in other
countries, just as is done with the consumption of tobacco and alcohol in
Mexico, these legalization regimes have beenaccompanied by educational
and health policies. In this sense, we have already implemented various
information campaigns onthe adverse health effects of the consumption of
these substances (tobacco and alcohol), as well as social programs to
address the damage to the health ofpeople who have developed an
addiction.159 In this regard, we cansay such policies would also form part of
an alternative measure to the ban now under consideration, which would in
general terms be a regime that only limited marijuana use in certain
circumstances and that couldinclude the parallel implementation of
educational and public health policies.
In this regard, see for example the Health Sector Program 2013.2018, published in
the Official Journal of the Federation on December 12, 2013, whose main objective is the
improvement and protection of health, through public policies of prevention, protection and
promotion of physical activity, diet, reduced consumption of alcohol, snuff,drugs.
illicit and generally in all those situations that endanger the physical or mental integrity
With regard to the topic addiction, the main lines of action are the
strategy 1.4, entitled "Promoting comprehensive actions for the prevention and control of
addiction", among which the promotion of information campaigns; the promotion of anetwork
nationalfor the treatment and prevention of addictions; promote actions to reduce
demand,availability and access; promote models of alternative justice for people with
addictions in conflict with the law; and promote intersectoral actions promoting alife
productivein adolescents.
159

71

D. Evaluation of the need for the contested ban


Now the court will consider whether this is an appropriate measure to
achieve the aims of the measure atlegislative issue, which involves
assessing whether it is causallyadequate to prevent or combat the harms
associated withmarijuana use. As noted, these consist of damage to the
healthof the person, developing dependence on the substance, inducing
theuse of other more harmful drugs, spreading the use of drugs ,and traffic
accidents committed under the influence of the substance.
It should be noted that the alternatives to the measure articulated and
identified aboveare also suitable to prevent damage to health and
marijuana dependency. In fact, one cansay that is more effective a policy
that seeks to preventdirectly those damages to health by attacking the
social factors that cause marijuana use, rather than a measure that
combats this problem indirectly through theprohibition of consumption.160 In
this regard, information campaigns and public strategies to conceive
drug dependence as a public health problem, for example, have proven
more effective thanprohibitionist policies. As already explained, the
prohibition ofmarijuana has not reduced the number of consumers and,
consequently,has not diminished the health damage associated with
consumption.161
Hamilton, Olavo, first gives proporcionalidade and war as drugs " Mossor,
Hamilton & Hamilton, 2014, p.158.
161 In this regard, see footnote no. 94.
160

72
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

73

measures actually prohibit only a more specific subclass" of such acts


(acts of consumption in very specific circumstances).163 In thisorder of
ideas, it can be said that the legislative measure at issue prevents the use
of marijuana in any circumstances where, for the purposes intended, such
prevention could be limited to discouragecertain behavior or establish
prohibitions on more specific situations,such as driving underthe effects of
the substance, consuming in public places or inducing others to also
consume it.
In other words, the "system of administrative bans" set by the contested
articles is highly suprainclusivo.As is known, a standard is
suprainclusiva when it comprises orregulates circumstances that have no
basis in justificationof this standard.164 In this case, as already explained,
the state chooses to perform an absolute prohibition of marijuana although
it is possible to ban its use only in cases that are justified by the protection
of health and public order.In this way, it can be said that regulations that
allow marijuana use, limiting the age to consume and / or the place where
you can make such consumption, are measures which identify better the
assumptions where actualdamage to health and public order are produced.
These regulations onlylimit consumption in these cases, which involve less
intervention to free development of the staff. In contrast, the contested
measureis longer than necessary, because it prohibits marijuana use in
any situation.
In a similar vein, see the discussion in Nino, op. cit., p.444.
Schauer, Frederick, Playing by The Rules. A Philosophical Examination of Rule-Based
Decision-Making in Law and in Life, New York, Oxford University Press, pp. 31-34.
163
164

74

This results in an interference with the right in question to a greater degree.


Consequently, we can say thatalternative regulations are more benign for
the right tofree development of personality.
In accordance with the above, the "administrative system of bans" set by
the contested items isan unnecessary measure, since there are alternative
measures equally suitable to protect health and public order which infringe
upon the fundamental right to a lesser extent.
Thus, the First Chamber considers that the ban on personal use of
marijuana for recreational purposes is unconstitutional as it does not stand
the test of proportionality.
Strict proportionality of the measure
Throughout this constitutional scrutiny it has been shown that although the
measure in question is suitable for protecting health and public order, there
exist suitable alternative measuresinvolved the right affected to a lesser
degree. Inthis section the proportionality test will be held strictly to highlight
the imbalance between the intense involvement of the right to free
development of personality against the minimum degree to which legislative
purposes are met by prohibiting theconsumption of marijuana.
The proportionality test in the strict sense isto make a balance or weight
between two competing principles. In the present case we should compare
the effectiveness with which the "system of administrative prohibitions"
challenged by theplaintiffs satisfies the health protection of people and the
public orderwith the level of infringement upon the right to free
development ofpersonality. In the section where the suitability of the
measure was examined, it was enough to show that it contributes positively

75
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

76

low level of incidence or questionable use of other ,riskier drugs. Similarly, it


wasacknowledged that to drive and operate hazardous tools under the
influence of marijuana itself poses a risk topublic order. Finally, it was
stated that there is uncertainty aboutthe claim that marijuana encourages
the commissionof other crimes or does it in some degree.
In contrast to the limited effects on the health and public order protecting
the "system of administrative prohibitions" about marijuana regulated by the
General Health Law, infringement upon the right to free development of
personality is intense. As noted in analyzing the scope of the contested
articles,they impose an obstacle in law that prevents plaintiffs from
consuming marijuana legally and from carrying out all actions correlative to
consumption (planting, growing, harvesting, preparing, possession,
transportation, etc.).The measure analyzedconstitutes an intervention in
the free development of the personalitybecause it involves interference
with personal autonomy. As explained above, the way in which an individual
wishes to recreate belongs to his most intimate and private sphere, as only
he can decide how he wants to live hislife. In this vein, the measure in
question has avery significant effect on the right to free development of
personality, since it prevents the plaintiffs from deciding which recreational
or leisure activities they wish to perform.

77

Indeed, an intervention in a fundamental right which totally prohibits


performing a behaviorcovered by this law will be more intense than an
intervention thatis realized to regulate or prohibit certain conditions in the
exercise ofthat right. From this point of view, the allocation to the free
development of the personality that carries the "system of administrative
bans" regulated by the General Health Lawcan be described as very
intense; it is a virtually absolute prohibition to consume marijuana and
performactivities related to the consumption of this, 167 suchthat it
suppresses all legal positions on the right exercised. The measure in
question is not confined toregulate how and where these activities can be
done, but directly prohibits all such conduct.
So from an analysis of strict proportionality, the state would be justified in
enacting such a severe limitation on the right to free development of
personality only if there were serious harm associated with marijuana use.
Conversely, if the legislative measure were only able to avoid or prevent
minor damage, then the absolute ban would represent a disproportionate
As explained by exposing the regulatory framework on the control of narcotics and
psychotropic substances in the General Health Law, the possibility of having up to five grams of
marijuana in terms of the provisions of Article 478 and 479 of the General Health Law, not
isan authorization or a right to personal consumption, but an exclusion of
liability only makes sense in the context of "punitive system" under theLaw
General Healthand the Federal Penal Code, but that is irrelevant to the
"system of administrative bans" contested by the complainants. Moreover, of these
items are limited to decriminalize consumption in a very small amount and do not allow in
any way the performance of the other corollaries to subsistence activities such as planting,
growing, harvesting, preparation, transportation, etc.
167

78

legislative action that severely affects the free development of


personality168
Once we have analyzed the benefits and costs of the measure, the First
Chamber considers that the "system of administrative bans" on marijuana
contained in the Articles of the General Health Act challenged by the
plaintiffs, cause an intense infringement upon the right to free development
of personality, compared with the minimum level of protection of health and
public order.
Although theSupreme Court recognizes that the legislature may limit the
exercise ofactivities involving damages to the rights protected byour
Constitution, in the case of the restriction to the free development of the
personality that underlies the measure, the First Chamber does not find that
the damages were of such gravity as towarrant an absolute ban on
consumption.
In addition, it is worth noting that throughout this constitutional scrutiny it
has been shown that there are alternative measures that infringe to a
lesser degree the right to freedevelopment of personality, consisting of
regulatory regimes subject to conditions that the legislature deems
relevant. These regulations may beaccompanied by public education
policies andhealth protection. Moreover, although these alternatives
represent economic costsfor the state and society in general, they are
comparable to those arising through the system of prohibition for personal
consumption.
Uprimny, Guzman and Vine, op. cit., p.107.
According to some scholars, in addition to its limitations in effectiveness, the
system of prohibition on marijuana and activities related to it have high
costs for the state and society, both direct and derivativeseradication
169,168
169

cropThe prosecution of trafficking networks and the prosecution and imprisonment of

79

Even though the "system of administrative bans" formed by the articles of


the General Health Act challengedby the plaintiffs exceeds the first two
steps of theproportionality test, having been established that it is a move
intendedto protect health and public order, the First Chamber considers
that it isa measure not only unnecessary, but is also disproportionate
in the strict sense, since it generates minimal protection of health and
public order while producing intense intervention into the right of people to
decide what recreational activities they want to perform.
It must be emphasized that the First Chamber does not minimize the
damage that can result from the consumption of marijuana. It is a decision,
however, that is rightfully made by each individual. The High Court
considers that it belongs within the strict scope of individual autonomy
protected by the right to free development of personality: the possibility to
responsibly decide whether to experience the effects of this substance
despite the harm that this activitycan generate to a person.
peoplerelated thereto; and indirect, more difficult to estimate, derived from
other factors such as casualties of the war on drugs and the loads they
must support hundreds of people losing their freedom during it. In this regard,
see for all Camacho, Adriana Gaviria, Alejandro, and Rodriguez, Catherine, op. cit.; Uprimny,
Guzman and Vine, op. cit., p. 106; TNI and WOLA, 2010

80

IV. The unconstitutionality of the challenged articles


Based on the foregoing, the First Chamber reaches the conclusion that
Articles 235, 237, 245, 247 and 248, all of the General Health Law, in the
specific sections introducing a prohibition of acts related to personal use of
marijuana for recreational purposes (that is, to plant, cultivate, harvest,
prepare, possess, transport, etc.), are unconstitutional.
This decision rests only and exclusively in connection with the drug
"cannabis" (sativa, indica and American or marijuana resin, prepared and
seeds) and psychotropic "THC"(Tetrahydrocannabinol, the following
isomers: 6A (10a), 6A (7), 78, 9, 10 9 (11) and their
stereochemical variants) collectivelyknown as "marijuana." This declaration
ofunconstitutionality does not in any way authorize any persons to carry
out business activities, or any other provisionthat refers to the sale and / or
distribution of substancesreferred to above.
It shouldbe noted that, as has been reiterated in the present resolution, no
statement is made regarding theconstitutionality of the criminal provisions
that penalize consumption andother marijuana-related events. The truth is
that this declaration by the High Court regarding the constitutionality of
the provisions of the General Health Act outlined above ,shall allow the
appellants to receiveauthorization from the Ministry of Health to perform all
activitiesnecessary for the use of recreational marijuana, to make them
recurring and not crimes against health provided by both the General
Health Law itself and by the Federal Penal Code.

81

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.

82

an obligation on the Ministry of Health to issue the authorization referred to


in Articles 235 and 247 of the General Health Law, and it is obvious that the
complainants may not commit thecrimes in question.
The Federal Penal Codecontains certain offenses relatingto narcotics that
do not have this typical element (in particular, those contained in Article
194, Sections II, III and IV; 196 Ter; 197 and 198); however, it warns that
they are not aimed atpunishing behavior sought by the complainants in
terms of the above in the present application for Code review.172
172 Federal

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

toconsume any of the narcotics listed in Article 193.


Article 198. who dedicated as main activity own
field work,plant, cultivate or harvest marijuana plants, poppies, hallucinogenic mushrooms, peyote or
any other plant that produces similar effects on their own, orfinancing
third partywhen it attend poorly educated and extreme financial need, be
willimposed imprisonment of one to six years.
The same penalty shall be imposed on a property in his ownership, possession or possession,
consents planting, cultivating or harvesting these plants in similar circumstances to
previous assumptions.

83

Finally, it is also important to note that the situation describedabove is


being updated in the same wayregarding administrative penalties provided
in Articles 421 and 421bis of the General Health Law, thereto providing
for fines arising from a violation of Articles 237, 238, 247, 248, 375, 376,
235 and 289 of the same law, concerning the authorization of the Ministry
of Health to perform actsrelated to narcotics and psychotropic
substances,173 forforwarding those provisions made to items that have
been
declared unconstitutional. However, there could not be imposition of an
administrative penalty to the complainants in the light of the provisions this
judgment performed.
In connection with the foregoing, the First Chamber notes that in his
seventh offense, related to the sixth concept of violation raised in the
petition for relief, the plaintiffs argued that the District Judge improperly
attended hisargument to the effect that Articles 234, 235, 237, 245, 247,
248,368 and 479 of the General Health Act, are unconstitutional by
transgressing Article 73, Sections XVI and XXI of the Constitution, based
on the power to legislate in matters of public health and establish the
crimes and offenses against the Federation, because this power "is an
implicit limit on individual relationships that do not interfere the sphere of
action of another person or persons". In this regard, complainants
173 General

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.

84

presented several arguments about the ethical limits of criminal law


regarding the consumption ofmarijuana.
Even though it is observed that the District Judgedescribed as unfounded
and ineffective that concept ofviolation, the First Chamber considers that
the grievance becomesinoperative, while as stated in preceding
paragraphs,the items identified by the complainants as claimed acts do not
refer to offenses relating to drugcrimes, but merely administrative
regulationson authorization for studies and acts related to narcotic and
psychotropic drugs.
Thus, it is clear that the First Chamber isunable to rule on the
constitutionality of thecriminalization of marijuana, as claimed by the
appellants, for articles containing the offenses in question were not
challenged in the appeal for protection or applied in administrative decision
claimed. Moreover,as the appellants stated above, it does not cause harm
the existence of the mentioned offenses, while in obtaining authorization
from the Ministry of Health theirbehavior under this ruling would not shape
crimesagainst health provided by the General Health Law and the Federal
Penal Code.
In connection with the above argument, it is also the argument irrelevant
injured third party consisting ofArticle 478 of the General Health Law in
relation to the tableof guidance on maximum dosage for consumption set
out Article 479, which allows the use of marijuana, while as explained these

85

provisions were not applied to the complainants above. In addition, as


noted at the time, the possibility of possessing five grams of marijuana is
not a right topersonal consumption, but an exclusion of liability.
In another vein, it is unnecessary to examine the other grievances having
been granted constitutional protection to the plaintiffs in the above specified
terms, while no practical purpose tolead the implementation of the relevant
study.
V. Effects of the judgment of amparo
So, as noted above, this Supreme Court of Justice declares as
unconstitutional Articles235, last paragraph, 237, 245, section I, 247, last
paragraph, and 248,all General Health Act, for the reasons stated
throughout this judgment. It should be taken in consideration that the
declaration of unconstitutionality is limited to regulations which refer to only
thenarcotic "cannabis" (sativa, indica and American, resin, prepared and
seeds) and psychotropic "THC" (Tetrahydrocannabinol, the following
isomers: 6A (10a), 6A (7), 7 8, 9, 10 9 (11) andits
stereochemical variants), together known as"pot"; on the understanding
that the declaration ofunconstitutionality has no scope to allow the
issuance ofan authorization for recurring use involving commercial
transactions,supply or any other that relates to the sale and / or distribution
of the substances above-mentioned .

86

Accordingly, the High Court then revoked thecontested judgment and


granted the injunction to the effect that the Executive Director of Regulation
Narcotics, Psychotropic andChemical Substances of the Federal
Commission for Protection AgainstRisk health, identified as responsible in
the injunction as the authority with power to grant the plaintiffs the
authorizationreferred to in Articles 235 and 247 of the General Health Act,
with respect to the substances and effects to those referred to above, on
the understanding that theauthority may not use the regulatory portions
whichhas been declared unconstitutional in the terms outlined above as a
basis for issuing the corresponding resolution.
Due to the above, the First Chamber of the Supreme Court of Justice of the
Nation, is
RESOLVED
FIRST. In the matter of the review, the judgment under appeal is revoked.
SECOND EU Justice covers and protects *****,*****, ***** and *****,
against the issuance and enactment ofArticle 235, last paragraph, 237,
245, section I, 247, last paragraph, and248, all of the General Health Act
and its application,consisting of the office of *****, issued by the Executive
Director ofRegulation of Narcotics and Psychotropic Chemicals of the
Federal Commission for the Protection against Sanitary Risk, for the
reasons stated in this judgment.

87

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

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