A violação do princípio da presunção de inocência na acusação por tráfico ilícito de entorpecentes decorrentes da indeterminação da Lei 11.343/06

Abstract

The purpose of this paper is to demonstrate the violation of the principle of presumption of innocence, enshrined in art. XI of the Declaration of the Rights of Man and of the Citizen and in art. 5, item LVII of the Federal Constitution, in the cases of those accused of the crime of illicit traffic in drugs provided for in articles 33 and 34 of Law 11.343 / 06. Such treatment of the accused is associated with the theory of criminal law of the Enemy developed by Gunther Jakobs. The inhumane treatment of those charged with the crime of trafficking entails the expansion of criminal law and the preponderance of the Criminal Law of the Author and Symbolic Criminal Law, unbearable in a Democratic State of Law. A brief study is made of the Drug Law (Law 11.343 / 06) in order to verify the presence of several indeterminations that lead to the broad discretion. The lack of objective criteria for the differentiation of trafficker and user is one of the gaps that contributes to police and judicial arbitrariness. In order to corroborate this statement, statistical data and excerpts from the statements of legal operators, especially from the State of São Paulo, are used. Thus, using the inductive method, it is concluded that this context causes the reversal of the burden of proof, and that the accused for trafficking must prove that he is only a user. Finally, we study the Principle of Presumption of Innocence, its historical aspects, its meaning, its disrespect and the consequences of this in cases of illicit drug trafficking. It is attributed the attack to the said principle, mainly, to the yearning to punish the State leading to a modern inquisitorial procedural model, inadmissible in democratic times. Keywords: Criminal Law of the Enemy; Symbolic Criminal Law, Criminal Law of the Author, Expansion of Criminal Law, Principle of Presumption of Innocence.