What are the changes in practice?
On June 25th, the Plenary of the Federal Supreme Court (STF), while analyzing item 506 of general repercussion, granted the Extraordinary Appeal 635659/SP (RE 635659) to declare the unconstitutionality, without reduction of text, of article 28 of Law 11,343/2006 (Drug Act), to remove from said provision all effects of a criminal nature. The text and non-criminal implications are maintained until the enactment of specific legislation on the matter.
The STF also established the following thesis:
Anyone who acquires, poses, has in storage, transports, or carries with oneself, for personal consumption, the substance cannabis sativa does not commit a criminal offense, without prejudice to the recognition of the extra-criminal illegality of the conduct, with seizure of the drug and application of warning sanctions on its effects (art. 28, I) and educational measure of attendance at an educational program or course (art. 28, III).
The decision also includes specific provisions for the repercussions of this thesis:
- The sanctions established in items I and III of article 28 of Law 11,343/06 will be applied by the judge in a non-criminal proceeding, without any criminal repercussion for the conduct.
- In the case of possession of cannabis for personal consumption, the police authority will seize the substance and notify the perpetrator of the fact to appear in court, in accordance with the regulation to be approved by the National Justice Counsel (CNJ). Until the CNJ deliberates on the matter, conducts of article 28 of Law 11.343/06 will be submitted to the Criminal Misdemeanors Court (Jecrim), according to the current system, barred the attribution of any penal effects to the sentence.
- Under paragraph 2 of article 28 of Law 11,343/2006, a user will be presumed to be a user who, for his consumption, acquires, keeps, has in storage, transports, or brings with him, up to 40 grams of cannabis sativa or six female plants, until the CNJ legislates on the matter.
- The presumption is relative and does not prevent the police authority and its agents from making the arrest in flagrante for drug trafficking, even for quantities lower than the limit established above, when there are elements that indicate commercial intent, such as:
- the form of packaging of the drug
- the circumstances of the seizure
- the variety of substances seized
- the simultaneous seizure of instruments such as scales
- records of commercial operations and cell phones containing contacts of users or traffickers.
- In case of arrest, the Chief of Police must register, in the flagrante delicto paperwork, a detailed justification for removing the presumption of possession for personal use, and the allusion to arbitrary subjective criteria is prohibited.
- In the event of imprisonment for amounts lower than those established in item 4, the judge, at the custody hearing, must evaluate the reasons invoked for removing the presumption of possession for personal use.
- The seizure of quantities higher than the limits set herein does not prevent the judge from concluding that the conduct is atypical, pointing out in the records sufficient proof of the condition of the user.
If, on the one hand, the decision ended a long discussion about the amount of the substance necessary to differentiate between possession and trafficking. On the other hand, it created, without a legislative process, an administrative offense to be prosecuted by the Criminal Courts.
This is because the seizure, the arrest notice in flagrante delicto, and the case submission to the JECRIM are criminal and criminal procedural measures that should be – according to the STF’s decision – applied to an “administrative offense”.
Furthermore, the aforementioned “administrative offense” may gain criminal relevance if, at the discretion of the police and judicial authority, there is justification to adapt the conduct to the crime of trafficking.
In other words, the STF’s decision still leaves room for the discretion of the police and the judiciary in removing the presumption created by the amount of cannabis sativa.
In practice, the decision ended up creating an “administrative offense” with no legal provision – since the provision of article 28 is a crime – subject to typically criminal procedural acts. The situation is even more complex because the presumption established by the STF is restricted to cannabis sativa. That is, the same conduct, if it fits the description of article 28 of Law 11,343/2006, can vary between administrative and criminal offense, depending on the type of drug involved.
