Commentary on Judgment No. 14608 of 2023: Possession of Pepper Spray and Regulatory Differences
The judgment no. 14608 of March 14, 2023, issued by the Court of Cassation provides important clarifications on the issue of possessing cans containing pepper spray based on oleoresin capsicum, the active ingredient derived from chili plants. In particular, the Court established that the possession of such sprays may constitute a misdemeanor if the circumstances of time and place demonstrate their unlawful use.
The Regulatory Context of Reference
Law no. 110 of 1975 regulates the possession of weapons and instruments capable of causing harm. In particular, Article 4, paragraph 2, provides penalties for possession in public places of instruments considered dangerous. The Court also referred to the penal code, specifically Article 699, which punishes illegal possession of weapons. It is essential to understand the differences between the two regulations, especially concerning the concept of self-defense.
Cylinder containing “pepper” spray based on “oleoresin capsicum” - Possession in a public place - Misdemeanor provided by Art. 4, paragraph 2, law no. 110 of 1975 - Configurability - Conditions - Misdemeanor under Art. 699 penal code - Differences. Possession in a public place of a cylinder containing "spray" based on "oleoresin capsicum" (principle extracted from chili plants) constitutes the misdemeanor referred to in Art. 4, paragraph 2, law April 18, 1975, no. 110, when the specific circumstances of time and place of detention indicate that the "item" is intended for an unequivocally unlawful purpose (in this case, to the detriment of individuals being robbed) and is completely incompatible with that of self-defense, for which possession in a public place is legally permitted.
The Conditions for Configurability of the Misdemeanor
The Court emphasized that the possession of pepper sprays can constitute a misdemeanor only if specific conditions of offensiveness exist. It is necessary to evaluate the characteristics of the context in which the possession occurs, distinguishing between situations of legitimate defense and scenarios where the use of the spray is aimed at committing a crime, such as robbery.
- Presence of circumstances of time and place suggesting unlawful use.
- Incompatibility of the intended use with that of self-defense.
- Assessment of the characteristics of offensiveness according to the combined provisions of laws and ministerial decrees.
Conclusions
Judgment no. 14608 of 2023 represents an important precedent regarding the possession of pepper spray. It clarifies that it is not sufficient to own such instruments to justify their public possession; a comprehensive assessment of the circumstances of the specific case is necessary. This judgment invites broader reflection on legality and individual responsibility in the use of potentially dangerous instruments. Therefore, it is essential for citizens to be informed about the legal risks associated with the possession of such sprays, especially in public contexts.
