Recurso foi acolhido pela 3ª Turma do TRF-1ª Região
POR ASCOM/DPU (imprensa@dpu.def.br)
A 3ª Turma do Tribunal Regional Federal da 1ª Região reformou, em abril, sentença proferida pela Primeira Instância e concedeu habeas corpus (salvo-conduto) à Regina Mota*, 50 anos, para importar sementes da Cannabis Sativa ou cultivá-la, exclusivamente para fins terapêuticos, na sua residência em Vitória da Conquista. A assistida foi diagnosticada com Fibromialgia há mais de 15 anos e já experimentou, sem sucesso, vários tipos de tratamento e até cirurgias.
Com a relatoria do Desembargador Federal Wilson Alves de Souza, a 3ª Turma determinou a expedição da decisão aos Agentes Policiais Federais, Civis ou Militares para que se abstenham de realizar medidas de restrição de liberdade, apreensão ou destruição de materiais destinados ao tratamento. Foi estabelecido o limite de importação de até 60 sementes e o cultivo de até 60 pés da planta por ano.
No recurso, interposto em janeiro, a Defensoria Pública da União argumentou que a mulher sofre com dores por todo o corpo – um dos traços principais da doença –, cansaço frequente, alterações do sono, rigidez muscular, ansiedade, problemas de memória e Síndrome do Intestino Irritável e que teria apresentado melhora significativa no seu quadro de saúde e na qualidade de vida após o uso de medicamento à base de Canabidiol.
“O medicamento se mostrou imprescindível para o tratamento, visto que foi o único realmente efetivo para controlar os sintomas da doença, que é crônica, e para a melhoria significativa em sua qualidade de vida”, pontuou a Defensora Federal Leila Carinhanha.
A Defensoria Pública da União anexou diversos documentos, como comprovante de residência, certificado do Curso de Cultivo e Extração de Cannabis Medicinal, emitido pela Associação Brasileira de Estudos da Cannabis Sativa (SBEC), autorização de importação emitida pela Anvisa, orçamentos da substância, além de receitas e relatórios emitidos pelo Médico Reumatologista que a acompanha.
Batalha Judicial
Regina já havia ajuizado outra Ação Judicial para que o Estado fornecesse o medicamento, mas o pedido foi julgado improcedente após Perícia Médica concluir que o medicamento não era imprescindível ao tratamento.
Neste novo Processo, visando o salvo-conduto para o cultivo doméstico da planta, a assistida, inicialmente, também teve decisão desfavorável. O juízo da 2ª Vara Federal de Vitória da Conquista/BA extinguiu o feito sem análise de mérito, sob o argumento de “inadequação da via eleita”. Posteriormente, o TRF-1 reconheceu a adequação do habeas corpus para discussão do tema e o caso foi remetido de volta ao juízo originário para análise do mérito.
Embora reconhecendo a jurisprudência favorável ao cultivo medicinal em casos análogos, o magistrado indeferiu o pedido sob o argumento de que não havia provas suficientes. Ele afirmou que os Laudos e Relatórios Médicos particulares não comprovaram a imprescindibilidade do Óleo de Cannabis para o tratamento e também entendeu que não houve o esgotamento de alternativas terapêuticas convencionais.
Divergindo da Primeira Instância, a 3ª Turma do TRF 1ª Região reformou a sentença e concedeu a ordem de habeas corpus para importação e cultivo de sementes da Cannabis Sativa, reconhecendo que os documentos apresentados eram suficientes para demonstrar a necessidade do medicamento à base da planta.
Foto: Shutterstock
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