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On June 25th<\/sup>, 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.<\/p>\n The STF also established the following thesis:<\/p>\n 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,\u00a0 III).<\/em><\/p>\n The decision also includes specific provisions for the repercussions of this thesis:<\/p>\n 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.<\/p>\n This is because the seizure, the arrest notice in flagrante delicto,<\/em> and the case submission to the JECRIM are criminal and criminal procedural measures that should be \u2013 according to the STF’s decision \u2013 applied to an “administrative offense”.<\/p>\n 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.<\/p>\n 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.<\/p>\n In practice, the decision ended up creating an “administrative offense” with no legal provision \u2013 since the provision of article 28 is a crime \u2013 subject to typically criminal procedural acts. The situation is even more complex because the presumption established by the STF is restricted to cannabis sativa<\/em>. 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.<\/p>\n","protected":false},"excerpt":{"rendered":" What are the changes in practice? On June 25th, the Plenary of the Federal Supreme Court [\u2026]<\/span><\/p>\n","protected":false},"author":1,"featured_media":489,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20,47],"tags":[],"class_list":["post-486","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-all","category-news"],"yoast_head":"\n\n