Estudo sobre a inconstitucionalidade do artigo 28 da lei nº 11.343 de 2006: Aspectos históricos normativos do paradigma proibicionista das drogas e sua aplicação como política pública

Abstract

The consumption of drugs is part of the daily life of societies, being a millenarian relationship, which lasts during time and space. Since 1912 Brazil has been influenced by the interests of the United States of America through the adherence of protocols from the various international conventions on drugs. In the spirit of international meetings and interests, Brazil, between 1914 and 2006, modified, multiplied and enriched its normative diplomas several times until culminating in a legal shield. A prohibitionist paradigm was created which perpetuates the regime of Public Policy of War on Drugs. At the same time, Law 11.343 of 2006 legislates on the subject of drugs in Brazil, affirming that drug trafficking is a crime, and that drug use is a crime with less offensive potential. The data presented in the study attest to the inefficacy of the current prohibitionist system in reducing the consumption of psychotropic substances. The prohibitionist paradigm created over the years underpins the interminable War on Drugs and raises the great social relevance of the topic in discussing an alternative way to Public Policies of drugs in Brazil. The hypothetical-deductive analysis method proved the unconstitutionality of the criminal type of article 28 of Law 11.343 / 06 in light of the constitutional principles of isonomy, privacy and human dignity, as well as the incompatibility of that article with the concept of modern individual freedom and the precepts listed by the principle of the lesivity of Criminal Law. Thus, article 28 of Law 11.343 / 06 shows strong unconstitutional evidence.