In Mantena, judge decriminalizes possession of drugs for personal use – General

General view of the city of Mantena, in the interior of Minas Gerais
Judge of Mantena decriminalizes the possession of drugs for own use and files cases (photo: City Hall of Mantena/Disclosure)

Penalizing a user, whose consumption does not affect third parties, violates the Federal Constitution. This was the decision rendered in the Judicial District of Mantena, in the Rio Doce Region, where the magistrate summarily acquitted a defendant based on article 28 of Law 11.343/06, which establishes penalties “for those who acquire, store, have in deposit, transport or bring with them, for personal use, drugs without authorization or in disagreement with legal or regulatory determination”.

The case had repercussions and attracted the attention of the city in the interior of Minas Gerais, which has just over 27 thousand inhabitants. In his opinion, Judge Thiago Guimares Emerim, of the Special Court, considered that Article 28 of the Drug Law is incompatible with the constitutional system. Thus, all lawsuits that were in progress and under investigation regarding the possession of drugs for personal use were filed.


According to the magistrate, an eventual criminalization of behavior that only implies self-harm – the possession of the drug for one’s own consumption -, without harm or danger of harm in the legal sphere of third parties, is not supported by a democratic rule of law. “This would imply undue interference in the sphere of the citizen’s private autonomy, provided for in article 5 of the Federal Constitution, also violating the dignity of the human person, provided for in article 1 of the Magna Carta,” said the judge.


He recalled that the constitutionality of the offense provided for in Article 28 of Law 11.343/06 is challenged through Extraordinary Appeal 635.659, which is still being analyzed by the Supreme Court.


“The principle of offense prevents exactly that conduct that does not represent harm or danger of harm in the legal sphere of third parties from being typified as a crime or misdemeanor,” explained the magistrate.


When it characterizes a crime


“If, however, the conduct of acquiring, storing, depositing, transporting or bringing drugs is addressed to a third person, even if undetermined, this is characterized as the crime of trafficking, which must be penalized”, explained the magistrate.


According to the judge from Mantena, the non-penalty of the user provided for in this decision does not remove the illicit nature of narcotic substances and the need to combat their use and trade, but also does not mean the release of the drug and is not an obstacle to the repressive actions of the police.


With this understanding, the magistrate has already rendered similar decisions, summarily acquitting other accused persons based on the same article and law, in Mantena and in the other cities that make up the district and that belong to the same jurisdiction – Mendes Pimentel, Itabirinha de Mantena, Central de Minas , So Joo do Manteninha, So Flix de Minas and Nova Belm. The Public Ministry appealed against the decisions, which are awaiting analysis by the Court of Justice of Minas Gerais and by the Appeal Panel of Governador Valadares.


Expert says that drug use needs hardening and no flexibility


The Constitutionalist and Criminalist lawyer Adib Abdouni observes with concern the decision of the Judiciary in Mantena, which, according to him, calls for itself – in place of the National Congress – the juridical-political responsibility of dictating the course of the nation as regards changes in the anti-drug policy, by proposing, on the grounds that article 28 of Law 11.343 of August 23, 2006, is unconstitutional, the decriminalization of drug consumption.


“In fact, there is no trace of unconstitutionality, and it is important to verify that the legislator, when editing the 2006 legal diploma, has already understood to attenuate the criminal reprimand to the detriment of the user, with the aim of ruling out the application of the private penalty of freedom, with replacement by the sanctions (still penal in nature) of warning about the effects of drugs, provision of community services and educational measure of attendance at an educational program or course, interchangeable by verbal warning and fine, in the exact guideline of the constitutional command that emerges from article 5, XLVI”, points out Abdouni.


Also according to the lawyer, these court decisions – like the one that took place in the interior of Minas Gerais – end up encouraging the use and fomenting the activities of criminal organizations.


“They end up weakening the repression of drug consumption, which requires toughening and non-flexibility, since it still presents itself as the most efficient instrument for combating drug trafficking, under penalty of decriminalization encouraging the use and promoting the activities of organizations criminals, with complex and sophisticated structures aimed at the doctrine of crime, exposing the safety of Brazilian society to an intolerable risk, and especially the lives and health of young people”, said the criminal lawyer.

About Abhishek Pratap

Food maven. Unapologetic travel fanatic. MCU's fan. Infuriatingly humble creator. Award-winning pop culture ninja.

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