O art.28 da Lei 11.343 de 2006: reflexões acerca de sua inconstitucionalidade à luz do Recurso Extraordinário 635.659

Abstract

The present work aims to expose reflections about the unconstitutionality of art. 28 of Law 11.343/06, whose issue is under analysis in the Federal Supreme Court, through Extraordinary Appeal 635.659. For a long time, the problem of drug decriminalization was seen as a real taboo. However, like any problem, this issue deserves to be addressed. Given the current state of society, it is essential to reflect on the issue, given the need to seek alternatives to the failed criminal policy to combat drugs. The present research has as theoretical framework the theory of the mechanism of control of constitutionality in criminal matters, which was presented by Minister Gilmar Mendes in said Extraordinary Appeal. Thus, a careful analysis of doctrinal and jurisprudential positions was performed based on the verification of their levels of intensity. At first, an attempt was made to make a panorama of the aforementioned Extraordinary Appeal, after highlighting the main issues discussed in the Supreme Court, such as the right to privacy, the issue of legal good and verification of constitutionality through levels of intensity. Finally, it was concluded that there was no justification for the intervention of Criminal Law and the need for alternatives to face the issue, such as relocating the issue to another branch of law, encouraging public policies and setting objective criteria to distinguish trafficker.