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Mexican Supreme Court Rules 5 Gram Simple Possession Limit as Unconstitucional

Updated: 3 days ago

On Wednesday, May 11, the First Chamber of the Mexican Supreme Court voted in favor of an amparo case for violating the constitucional rights of defendant Edgar Sanchez, who was charged with simple possession of cannabis. The case had been scheduled for a vote on October 13, 2021, but was postponed by the High Court to debate the constitucional effects of the ruling. Minister Juan Luis Gonzalez Alcantara Carranca presented a draft resolution before the First Chamber. The Chamber voted 3-2 in favor of the resolution.


The resolution did not contemplate declaring simple possession as unconstitucional, which carries a penalty of 10 months to 3 years in prison as defined by article 477 of the General Health Law. Instead, the ruling found article 478 to be unconstitutional, which allows possession for personal consumption of up to 5 grams. Article 478 states, ¨The Public Ministry will not take criminal action for the offense...against anyone who is a drug addict or a consumer and possesses any of the narcotics indicated in the table, in equal or less quantity [5 grams for cannabis]...for its strict personal consumption... The Public Ministry will report the non-exercise of criminal action to the federal health authority, where the resolution is adopted with the purpose of promoting the corresponding medical or preventative treatment.¨

In a statement issued by the court, the Ministers declared that ¨the penal regulation that does not allow recognizing the use or consumption of cannabis sativa for personal purposes as a case of exclusion of the crime is unconstitutional, since both the legal operator [public prosecutor] and the recipient [defendant] are unable to ponder when there is no crime in such a case.¨ The ruling in essence allows the lower circuit courts and the Public Ministry to determine when a criminal defendant can be charged with the crime of simple possesssion on a case by case basis. Since the resolution passed with only 3 votes, however, the ruling would not become obligatory for the lower courts - 4 votes are required to establish legal precedent, as outlined in the Amparo Law.


The civil rights group Mexico United Against Delinquency (MUCD) filed the amparo appeal on behalf of the criminal defendant to the High Court. The group issued a statement lamenting the First Chamber´s decision not to declare simple possession as unconstitucional, despite ruling personal consumption as a constitutional right in 2018 and issuing a General Declaration of Unconstitucionality June of last year, which eliminated administrative barriers in the General Health Law that prohibited the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) from issuing adult-use, personal consumption permits. See the MUCD´s infographic below for a breakdown on the Court´s ruling.




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