The Federal Supreme Court (STF) once again postponed the judgment that deals with the possible decriminalization of drug possession for personal consumption. The appeal on the subject was scheduled for this week, but was removed from the plenary agenda. Questioned, the advisory of the Supreme said only that the President of the Court, Minister Rosa Weber, who is responsible for managing the agenda, is analyzing a new date to reschedule the trial of the case, which began eight years ago, when it was interrupted by a request for review. , and has not been discussed in plenary since then. Votes So far, three ministers – Luís Roberto Barroso, Edson Fachin and Gilmar Mendes – have voted, all in favor of some type of decriminalization of drug possession. The appeal on the subject has recognized general repercussion, and should serve as a parameter for the entire Brazilian Judiciary. Mendes was the only one to vote for the decriminalization of possession of any drug, without specifying quantity, due to the right to privacy and the inviolability of the user’s personal life. Fachin, in turn, suggested that only marijuana possession be decriminalized. Barroso also voted in that direction, and suggested that the Supreme determine that it is not a crime to carry up to 25 grams of marijuana or grow up to six plants for personal consumption. The analysis of the case was interrupted, still in 2015, by a view (more analysis time) requested by Minister Teori Zavascki, who died in 2017. He was replaced by Alexandre de Moraes, who released the appeal to be discussed in 2018. Since then, the case has stalled in the Court, going through several presidencies of the Supreme Court. The case deals with the possession and possession of drugs for personal consumption, a low-level criminal offense set out in article 28 of the Drug Law (Law 11.343/2006). The foreseen penalties are mild: warning about the effects of drugs, community services and educational measure of attending a program or course on drug use. Arguments Despite this, critics claim that the device gives excessive discretionary power to judges to frame anyone caught with drugs as a user or dealer, since the law does not provide for a specific amount to define personal use. Entities defending the rights of black people, for example, argue that this leads to discrimination and exposes racism in judicial decisions, since the vast majority of those arrested for trafficking are black, even though a good part has been caught with smaller amounts of drug than white defendants framed as users. Even those who are classified as users have to face criminal proceedings and lose benefits such as being a first offender, which favors those who are better able to pay for better lawyers, argue defenders of decriminalization. Those who are against decriminalization argue that, by consuming illegal drugs, the user threatens public health and fuels trafficking, which is why the law cannot be said to be unconstitutional. Another argument is that personal use has already been decriminalized, with no more serious sanctions, which would undermine the need to decriminalize use. Another point discussed by the ministers is whether it is up to the Supreme Court to act on the subject or whether it is the responsibility of the Legislature alone to decide on whether or not to criminalize drug possession and personal consumption. Concrete case In the concrete case, the Supreme Court is analyzing an appeal against a decision by the Justice of the State of São Paulo, which upheld the conviction of a man for possession of three grams of marijuana for personal use. For public defender Leandro de Castro Gomes, who works on the case, the tiny amount of drugs does not represent a risk to public health, but only to the personal health of the user. For this reason, there would be no damage capable of constituting a crime, argues the defender. For the state of São Paulo and the Public Ministry of São Paulo, the law that typifies the crime of possession of drugs for personal consumption does not contain any irregularities and the damage to public health caused by the user is of an abstract nature, which is why it could not be quantified . Another argument is that drug use fuels trafficking, which the State has a duty to combat. “The Federal Constitution provides that the State has the duty to repress trafficking and the law guarantees the user or dependent legally differentiated treatment from the trafficker”, argued Marcio Elias Rosa in the tribune of the Supreme Court, then Attorney General of São Paulo when the trial in 2015.
Agência Brasil
Folha Nobre - Desde 2013 - ©