Law In 2001, Portugal famously overhauled its drugs policy to allow for a system based on treatment rather than punitive penalties – making possession of personal quantities of all drugs, including cannabis, a non-criminal offence. Since then, Portuguese society has experienced major benefits, including a drop in “hard” drug use.
Legality of Cannabis Possession, Sale and Cultivation
Cannabis Consumption and Possession
Portugal’s drug law is based on the Decree Law 15/93 of January 22, 1993. This law regulates various aspects of the criminal code relating to drugs, including penalties, treatment orders, crime prevention, and so on, and makes a clear distinction between crimes of trafficking and lesser crimes of possession. It also set out lists of controlled substances: heroin is in list 1a, cocaine in list 1b, and cannabis in list 1c.
Decree Law 15/93 was heavily modified and partially revoked by the introduction of Law 30/2000, which was formulated in 1999 and implemented in 2001. Prior to July 2001, use of cannabis and other drugs was considered a criminal offence that was punishable by up to three months’ imprisonment or a fine. If the quantity of drugs seized exceeded three days’ worth to an individual user, the penalty was increased to a maximum of one year’s imprisonment or a fine. Sentences could be suspended if the individual was an occasional user or first-time offender.
In 2000, Law 30/2000 was passed, which formally decriminalized the consumption and possession of all illegal drugs insofar as they are found in small quantities and for personal use. Consumption and use are both still considered to be administrative offences, and may be punishable by fines or rehabilitation orders, but in practice many cases are suspended. In cases where the amount in question exceeds that deemed necessary for personal use, individuals may be subject to up to one year’s imprisonment and a fine of up to 120 day-rates (day rates are a form of financial penalty common in Europe, based on the offender’s daily income).
According to the new law, individuals found in possession of small quantities of drugs for personal use (in quantities not exceeding that required for an average individual over ten days of use) cannot be subject to criminal penalties. In such cases, the drugs will be seized and the case transmitted to a local Commission charged with implementing a rehabilitation strategy. The majority of such cases end up with legal proceedings being suspended; around 10% of cases are punished with monetary penalties. Furthermore, if a treatment order is issued, the individual may choose not to undertake it without incurring any penalty.
What constitutes a daily personal requirement for a drug is codified in Portuguese law as: heroin 0.1g; cocaine 0.2g; cannabis 2.5g; hashish 0.5g; delta-9-THC 0.05g; amphetamine 0.1g. This implies that the assumed potency of hashish is no more than 10% and cannabis no more than 2% in THC, although many commercial varieties far exceed that.
Sale of Cannabis
Portuguese law differentiates between different types of drug trafficking both according to the substance in question, the state of addiction of the defendant, and the quantity of the substance in question.
For cannabis, which is classed as list I, trafficking crimes are punishable by custodial sentences of between 4 and 12 years. The 4-12 year range is also applied to substances in lists II and III, while traffic in list IV drugs (tranquillisers and analgesics) is punishable by 1–5 years’ imprisonment.
If the defendant is an addict, and has committed the crime of trafficking in order to supply his or her own needs, the penalty is reduced to a maximum of 3 years’ imprisonment for lists I-III and a maximum of 1 year’s imprisonment for list IV.
For a defendant found to be conducting “traffic of minor importance”, penalties may be significantly reduced. Traffic of minor importance is that of smaller quantities, less-harmful substances, and without aggravating circumstances; in such cases, a maximum of 1–5 years’ imprisonment (lists I-III) or up to 2 years’ imprisonment (list III) are levied.
Aggravating circumstances may increase penalties considerably. For example, evidence of criminal association (involvement in organized crime) can lead to custodial sentences of 10–25 years.
Cultivation of Cannabis
Cultivation of cannabis is illegal in Portugal, even small crops intended for personal use. In fact, the Law 30/2000 specified that while custodial sentences for drugs were to be repealed, cultivation was to be excepted from this. Even now, after fifteen years of successful decriminalization, the Portuguese authorities remain surprisingly inflexible in their attitudes towards cannabis cultivation, and the risk of prosecution for growers remains high.
Recently (May 2013), a motion brought to parliament by the Left Bloc group of political parties, which aimed to decriminalize the cultivation of small amounts of cannabis for personal use by individuals or social clubs, was rejected by the ruling coalition. Furthermore, an amendment implemented in 2003 actually criminalized the sale and possession of any cannabis seed not certified as of a European hemp variety, meaning that Portugal is one of very few European nations to criminalize cannabis seeds, as well as banning the sale of equipment intended for cultivation. Thus, despite the general trend towards liberalization, it seems that opposition to cannabis cultivation is not likely to soften considerably in the near future.
This remarkable contradiction is one of the most striking downfalls of Portugal’s decriminalization experiment, as it keeps the means of production of the country’s most commonly used drug out of the individual’s hands, and forces consumers to rely on criminal means of supply.
The campaign for legal cannabis cultivation is perhaps not so strident in Portugal as it is in many other European nations, partly due to the high risk of prosecution and harsh penalties. Furthermore, Portugal’s neighbouring country of Spain has such a well-developed cannabis market that many users in Portugal rely on cannabis and hashish of Spanish provenance, which is either grown in Spain or imported from Morocco, in the case of hashish. However, a small subculture of cannabis growers certainly exists, although their existence and work is generally highly secretive.
Medical Cannabis in Portugal
There are currently no specific medical cannabis laws on Portugal’s books, although the medical cannabis preparation Sativex has been legally available in the country since 2012. Following the defeat of the Left Bloc’s proposal to decriminalize personal cultivation of cannabis in 2013, it appears no further efforts to bring about legislative change in Portugal have been made.
In April 2015, Minister for Justice Paula Teixeira da Cruz publicly announced her support for the decriminalization of cannabis cultivation and the adoption of a social club model that would allow individuals to access cannabis for personal and medicinal reasons; however, da Cruz has now left office, and it does not appear that her comments led to any significant change.
In 2014 Portugal’s National Drug Authority issued for the first time a license to a company listed as Terra Verde to produce cannabis for medicinal purposes, apparently with the intention of supplying GW Pharmaceuticals, the UK company responsible for bringing the cannabis preparation Sativex to market. According to statements released by the National Drug Authority, the crop licensed to be grown in Portugal will contain THC levels not exceeding 2%, with CBD levels considerably higher. However, it is not clear if the plan has gone ahead, or what the results have been thus far.
History of Cannabis in Portugal
As a significant power in Asia and Africa during the Colonial period, the Portuguese had significant opportunities to encounter cannabis during the course of their overseas operations. The Indian state of Goa (once a Portuguese colony) has a long history of cannabis use, as do the African nations of Mozambique and Angola, both of which were territories controlled by the Portuguese for long periods of their history. In fact, it is even thought that the Portuguese were instrumental in bringing cannabis to Brazil in the early part of the 16th century, either themselves or through the transport of slaves and workers from the colonies to the Brazilian plantations. Thus, it is likely that Portuguese traders were bringing back hashish and cannabis to their home country for several hundred years.
As well as this, Portugal has been cultivating hemp for centuries, and made extensive use of hemp fibres in rope- and sail-making, which greatly contributed to the nation’s seafaring ability and the development of its empire. Today, Portugal still cultivates minor amounts of industrial hemp.
In the modern era, the liberalization policies were shaped in response to an alarming increase in the rate of drug addiction that occurred in the years following the Carnation Revolution of 1974. The reasons behind the explosion in recreational drug use during this period are not clear; however, the nation was in a state of ongoing turbulence, and it is thought that the new-found sense of freedom and experimentalism that pervaded society found an outlet in use of drugs, which unfortunately escalated into rampant use of hard drugs, in particular heroin.
In the 1990s, the heroin epidemic reached frightening proportions, and the government began to look at alternative drug policies that would assist in solving the crisis. It was decided that a harm-reduction approach that focused on rehabilitating users would be appropriate, and that personal quantities of drugs would be decriminalized to reflect this.
What Next for Cannabis in Portugal?
The policy of decriminalization has been widely accepted as successful, and Portugal has been cited as an example for other countries seeking to adopt more liberal and less punitive drug policies. Problem drug addiction has decreased, and problems anticipated by opponents of the scheme, such as increases in drug tourism, have not come to light. As well as this, HIV infection rates among injecting drug users have fallen (a result of improved needle exchange and care schemes), and drug-induced deaths have fallen sharply. An excellent resource showing more of the consequences of Portugal’s decriminalization policy can be found here.
However, Portugal’s drug policy is deeply flawed, and the ongoing refusal to legislate to allow for personal cultivation of cannabis seems contradictory and regressive. Furthermore, the lack of progress on medical cannabis reforms, and the failure in 2013 of the social club proposal brought by the Left Bloc, are disheartening signs. It seems unlikely that the nation will continue to maintain its status as a trailblazer in the field of liberal drugs policy, as countries throughout the world are beginning to adopt legislation that far exceeds Portugal’s in their scope and effectiveness.