STF resumes judgment on possession of drugs for personal use

decriminalization

The creation of parameters that can differentiate a user from a dealer has also motivated debate

Brasilia DF) – Stopped at the Federal Supreme Court (STF) since 2015, the trial that discusses the constitutionality of the crime of possession of drugs for personal consumption will be resumed this Wednesday, 24, as marked by the President of the Court, Minister Rosa Weber.

The discussion has been at a standstill since Minister Teori Zavascki requested a review of the records. Two years later, in 2017, he died in a plane crash. Minister Alexandre de Moraes took his place and, on November 23, 2018, returned the case files for the continuation of the trial. Since then, the process was in the agenda queue, awaiting the resumption.

The STF judgment analyzes the constitutionality of Article 28 of Law No. 11,343 of 2006 on “buying, storing or possessing drugs without authorization for personal use. Penalties: I – warning about the effects of drugs; II – provision of services to the community; III – educational measure of attendance at an educational program or course”, according to the Court of Justice of the Federal District and Territories (TJDFT).

Rapporteur’s vote

As the rapporteur for the case, Gilmar Mendes was the first minister to speak, in 2015, and he substantiated his position by saying that the criminalization of personal consumption hurts private life. “It affects the right to free development of personality for various manifestations,” he said. According to the minister, the measure also “seems to disproportionately offend private life and self-determination.”

In practice, the minister considered that article 28 of Law 11,343, of 2006, which deals with drugs, is unconstitutional. The device defines as a crime the fact of acquiring, keeping or carrying drugs for personal consumption. Despite the case under analysis involving the possession of marijuana, Gilmar Mendes opted for a more comprehensive analysis, which affects all narcotics.

According to the vote of the rapporteur, a person who is caught with drugs should be taken to a judge, who would define what should be done next. He criticized the way the process is carried out today, in which it is up to a police chief to define whether the drug dealer is a drug dealer or a user. “The word and assessment of the police deserves credit, but there is a need for a judge,” he said, adding that a magistrate has more “neutrality” to handle the case.

In addition, although he voted for a drug carrier not to be criminally punished, the minister admitted administrative restrictions, as already provided for in Article 28 of the law.

Minister Edson Fachin was emphatic in saying that decriminalization should be carried out “exclusively” for possession of marijuana and Minister Luís Roberto Barroso stated that he would not comment on other types of narcotics.

The creation of parameters that can differentiate a user from a dealer also motivated debate between Fachin and Barroso. “While there is no pronouncement from the Legislative Power on such parameters, it is mandatory (mandatory) to recognize the need to fill this gap”, said Fachin. That was when Barroso proposed a carrying limit of 25 grams, the same criterion adopted by Portugal. For Fachin, however, the parameters must be established by the Executive Branch – until Congress approves a law on the subject.

Three of the eleven Justices of the STF returned in 2015:

– Gilmar Mendes: in favor of decriminalizing the possession of all drugs for personal use.

– Edson Fachin: in favor of decriminalizing the possession of marijuana for personal use.

– Luís Roberto Barroso: in favor of decriminalizing the possession and cultivation of marijuana for personal use. Establishes parameters to differentiate trafficking possession: 25 grams of marijuana and cultivation of six female plants.

Resource

The appeal reached the Federal Supreme Court in 2011 and has general repercussions, that is, it will serve as the basis for decisions in similar cases in all courts in Brazil.

*With information from IstoÉ

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