"The Supreme Court of Justice, considering that it was not intended to legalize drug use, but only to decriminalize less severe consumption, reestablishes the crime of drug use (article 40°, Decree-Law n. 15/93) for cases in which the amounts identified exceed those established. Later, in 2014, the Constitutional Court did not consider the interpretation of the Supreme Court of Justice unconstitutional and validated its position (judgment n. 587/2014, December 3). Although not fully binding, judgement n. 8/2008 is currently used as an uniformizing instrument for judicial decisions. This position has been seen as polemical [24] even among renowned judges, who were persuaded that the Supreme Court action is contrary to the spirit of the decriminalization law [25].
"Notably, these sanctions are not directed at dealers, nor at dealers/users, but uniquely to those who have been proven only to be a drug user. It should also be underlined that it is not the quantity that serves to distinguish between use and trafficking. The Portuguese system is a model guided by threshold values only to differentiate between types of use (ones that should be considered a crime or a misdemeanour), and avoiding the hazards associated with the introduction of metrics that, in general, generate more punitive systems [26].
"Paradoxically, despite having decriminalized the use of all illegal drugs, Portugal has an increasing number of people criminally sanctioned - some with prison terms - for drug use [25,26,27]. Regarding criminal sanctions, in 2019, among the convictions under the Drug Law (1883 individuals), drug use (42%) was the second most common, behind drug dealing (58%); no one has been sanctioned for dealing-using [27]. Before 2008, reflecting the decriminalization law, sentences for drug use were almost non-existent and exclusively related to cultivation, which continued to be a crime (article 40° of the Decree-Law n. 15/93, of 22 January).
"After 2008 (Fig. 2), the sharp increase of sanctions for drug use - which includes fines (suspended or effective), jail time (suspended or effective) and a combination of fines and jail time - is seemingly attributable to the establishment of jurisprudence. According to SICAD [27], in 2019, the Supreme Court judgment n. 8/2008 is explicitly stated in about 99% of the convictions. Moreover, between 2010 and 2019, while convictions for the crime of drug use saw an increase, convictions for drug dealing, including the dealer-user category, registered a decrease [27]."
RÊGO, X., OLIVEIRA, M.J., LAMEIRA, C. et al. 20 years of Portuguese drug policy - developments, challenges and the quest for human rights. Subst Abuse Treat Prev Policy 16, 59 (2021). doi.org/10.1186/s13011-021-00394-7.
