Experts consulted by Poder360 comment on the judgment in the STF that can release personal use; case has been stopped since 2015
O stf (Federal Supreme Court) will resume this Thursday (June 1, 2023) the judgment on the possession of drugs for personal use. Action judged by the Court questions article 28 of the Drug Law (Law 11.343/2006), which deals with transportation and storage for personal use. The foreseen penalties are mild: warning about the effects, community services and educational measure of attending a program or course on drug use.
According to experts consulted by the Power360, the trial could have consequences for the Brazilian prison system. Journalist Anita Krepp indicated that since the implementation of the Drug Law in 2006, the prison population has increased by 70%.
“We are talking about a topic that encompasses many others. It encompasses trafficking, which can, yes, this impact be reduced through a less criminalist policy. It impacts public health, obviously. Because we also have to think about how this will reach society, how we will respond. And this mainly impacts the prison system.”said the journalist.
Anita Krepp also stated that this 1st impact of an eventual decriminalization will be felt by the black population, which, according to her, is the biggest target of drug criminalization. The journalist, however, claims that some definitions need to be made from decriminalization, including a limit on the quantity allowed for possession.
“The 1st effect is for us to reduce institutionalized racism in our society, because we know that the vast majority of people who suffer from the criminalization of drugs are peripheral and black people. So this is the 1st, but the culture doesn’t change overnight, so we have to see how this is going to be done”said to Power360.
Lawyer André Damiani, specialist in Economic Criminal Law and founding partner of Damiani Sociedade de Advogados, also defends this definition. He also explained that the discussion in the Supreme Court is not about the legalization of drugs, but will decide whether the citizen caught using a narcotic can be held criminally responsible.
“It is extremely important that the Supreme Court, in addition to analyzing the constitutionality of article 28 of the Drug Law, set objective parameters to differentiate the user from the dealer, such as, for example, the amount of drugs brought by the subject, thus avoiding , that the subjectivism of the authorities generate contradictory decisions”he stated.
Damiani also says that decriminalization should not have an impact on drug trafficking, since the Court’s decision should only stipulate parameters to differentiate the user from the dealer. According to him, this measure should reduce the number of prisoners with small amounts of drugs.
“A favorite victim of state oppression, the black population is the one that suffers the most from the fruitless war on drugs, representing the overwhelming majority of the country’s prison population. […] It would be important for Brazil to adopt a new criminal policy that seeks to combat the mass incarceration of the black population”completed.
The trial began in 2015, but was paralyzed by a request for a review by then-minister Teori Zavascki. He died in a plane crash in 2017. Upon taking over from Teori, Minister Alexandre de Moraes inherited the case and released it for voting in November 2018. Now, the case is under the rapporteurship of Gilmar Mendes.
So far, 3 ministers have already voted: Gilmar Mendes, Edson Fachin and Roberto Barroso. As it has general repercussions, what is decided by the Court will affect all other actions on the subject that are being processed in the country’s courts.
Rapporteur, Gilmar voted for the unconstitutionality of article 28 and the application of administrative sanctions for cases of personal use, without criminal punishment. Fachin and Roberto Barroso followed the rapporteur in voting for the unconstitutionality of article 28, but limited the vote to personal possession of marijuana.
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