1. SUMMARY
This monograph intends to follow the line of qualitative research, on the path to understanding, about how a process triggered by a Special Appeal – RE, filed by a state body, is decided by the Supreme Power. It is not focused on the final decision. It was based on an appeal filed with the STF, RE 635.659/SP, which alleges a possible transgression of article 5, item 11,343/06, the Drug Law. The titles of the three chapters that make up the monograph are the script for this work. The first chapter is titled Constitutionality Control Mechanism; the second The Unconstitutionality of Article 28 of Law No. 11,343/06 in the STF and the third chapter was entitled The Votes Delivered by the Ministers of the Federal Supreme Court. Law 11,343/06 brought significant changes, removing the criminal nature of drug possession for personal consumption. Only three ministers voted in the case of the proposed RE. The three opted for the unconstitutionality of article 28 of Law 11,343/06.
KEYWORDS: Drugs; Article 28; Law No. 11,343/06; Unconstitutionality; User; Decriminalization.
ABSTRACT
This monograph has the pretension of following the line of qualitative research, in the way of understanding, about how a process triggered from a Special Resource – ER, brought by a state body, is decided by the Supreme Power. It doesn’t focus on the final decision. Based on an appeal that was filed in the STF, RE 635.659 / SP, which alleges possible transgression of Article 5, X, of the Constitution. And has the objective of corroborating the possible unconstitutionality of Article 28 of the Law 11,343 / 06, the Drug Law. The titles of the three chapters that compose the monograph are the script of this work. The first chapter brings the title Mechanism of Control of Constitutionality; the second The Unconstitutionality of Article 28 of Law No. 11.343 / 06 in the STF and the third chapter received the title The Votes Delivered by the Ministers of the Supreme Federal Court. The Law 11,343 / 06 brought significant changes, removing the criminal nature of drug’s possession for personal consumption. Only three ministers voted in the case of the RE brought. All three opted for the unconstitutionality of article 28 of Law 11,343 / 06.
Keywords: Drugs; Article 28; Law nº 11,343/06; Unconstitutionality; User; Decriminalization.
two. INTRODUCTION
With the aim of corroborating the possible thesis of unconstitutionality of Article 28 of Law 11.343/06, this work brings reports and arguments about facts, in addition to some readings and studies aimed at this purpose, based on the Magna Carta of 1988, having as I focus on a Special Appeal – RE, No. 635.659/SP, of August 2015, filed under the allegation of transgression of article 5, item X, of the aforementioned Charter.
From the report of a case that had a lot of repercussion, in the legal world, the curiosity arose that motivated me to prepare and develop a research project, to understand the circumstances that allow a conflict to be analyzed and decided, in the Federal Supreme Court – STF. A case that, depending on the understanding of the STF ministers, could be an indication for the decriminalization of drugs in the near future. Or, by not decriminalization. Does Article 28 of Law 11343/06 violate legal principles of Brazilian law?
The case in question has as its central character an ex-convict named Francisco Benedito de Souza, who was serving a sentence in the Provisional Detention Center in the city of Diadema/SP, for armed robbery. It was up to the Public Defender’s Office of the State of São Paulo to substantiate and file a RE, based on article 102, item III, paragraph A, of CF/88, alleging the unconstitutionality of article 28 of the Drug Use Law, as the main thesis of defense. The RE was motivated because the detainee, when caught with three grams of marijuana, in his lunch box, inside his cell, had a new crime configured, that of possession of drugs for personal consumption. The São Paulo Public Defender’s Office, which is appealing against the punishment, claims that the ban on possession for personal consumption offends the constitutional principles of intimacy and private life.
The case cited prompted me to follow the line of research, on the path to understanding, about how a process triggered by an RE, brought by a state body, is decided by the Supreme Power. Regardless of the final decision, in the STF. Without worrying about reporting the sentence attributed to defendant Francisco Benedito de Souza.
The methodology used is qualitative. Based on the interpretation and understanding of theoretical phenomena, where the object of study is approached in an open and broad manner, this work was developed seeking to contribute to a better understanding of the phenomena, based on different readings of doctrinal texts (NEVES, 1996). Also based on reading and forwarding votes from ministers who provided support for the methodical development.
Qualitative research presupposes and allows greater concern with the process, with the aim of better understanding behavior and experience, in order to understand the way in which people construct meanings and meanings, giving meaning to these meanings (BOGDAN & BIKLEN, 1994) , replacing the criterion of explanation with that of understanding, as it allows us to grasp structural relationships when dealing with complex phenomena. And it also allows reporting analyzed data, which used different approaches and specificities.
Mendes (2006) states that it was with the intention of reinforcing the abstract control of norms, being able to submit any constitutional question to the Federal Supreme Court, that a representative change in the model of constitutionality control was achieved, starting with CF/88.
In Chapter 1, under the title Constitutionality Control Mechanism, the theoretical reading allowed us to understand that constitutionality control is a constitutional defense mechanism. Mechanism that ensures the supremacy, legal superiority of the Magna Carta, against laws or normative acts (BARROSO, 2010). For the development of this chapter, which is subdivided into two others (1.1 Concentrated Control of Constitutionality and 1.2 Diffuse Control of Constitutionality), in addition to Barroso (2010; 2012), Silva (2006); Mendes (2006); Novelino (2009); and Sarlet et all(2015).
Chapter 2 is entitled The Unconstitutionality of Article 28 of Law No. 11,343/06, in the STF and is subdivided into: 2.1 Extraordinary Appeal No. 635,569/SP; 2.2 Article 28 of Law No. 11,343/06: Interpretation of Unconstitutionality and 2.3 Principles Affected by Article 28 of the Drug Law.
Based on citations and considerations from theorists, concerning the theme of unconstitutionality and specifications of the Drug Law, a broader view is possible, allowing conclusions to be drawn.
With the title The Votes Proffered by the Ministers of the Federal Supreme Court, Chapter 3 presents a summary of the arguments that led the ministers to decide that the article in question was unconstitutional. The chapter was subdivided into: 3.1 The Vote of Minister-Rapporteur Gilmar Mendes; 3.2 Minister Edson Fachin’s Vote; and 3.3 The Vote of Minister Roberto Barroso.
3. CONSTITUTIONALITY CONTROL MECHANISM
Control mechanisms aim to guarantee the sovereignty of the Federal Constitution. According to Barroso (2010, p. 85), “An important part of constitutional jurisdiction consists of the control of constitutionality, the purpose of which is to declare the unfeasibility and paralyze the effectiveness of normative acts that are incompatible with the Constitution.” This control mechanism is directly linked to the idea of Supremacy of the Constitution, an idea that aims to guarantee the normative sovereignty of the Magna Carta, which is at the top of the legal system.
With the aim of corroborating the possible thesis of unconstitutionality of article 28 of Law 11,343/06, this work brings reports, arguments and analysis of facts, in addition to some readings and studies aimed at this purpose, based on the 1988 Magna Carta, because “it is there that the fundamental norms of the State are found, and only in this will its superiority in relation to other legal norms be noted.” (SILVA, 2006, p. 45).
Therefore, constitutionality control consists of the constitutional defense mechanism, ensuring supremacy against laws or normative acts that may transcend the legal superiority of the Federal Constitution, and the purpose of an important part of this jurisdiction is to “declare the unfeasibility and paralyze the effectiveness of normative acts that are incompatible with the Constitution.” (BARROSO, 2010, p. 85).
The idea of legal order is idealized by Hans Kelsen in the format of a legal pyramid, where inferior laws are subordinated to the constitutional text, to the supreme law of the State and “means that the Constitution is placed at the apex of the country’s legal system, to whom it confers validity, and that all state powers are legitimate, to the extent that it recognizes them and in the proportion distributed by it.” (SILVA, 2006, p. 45).
Judicial control of constitutionality is spread across two streams, the first is the American model, which is called diffuse; and the second, European control or concentrated model. The model adopted by Brazil is mixed, because despite the Federal Constitution having preserved the traditional, diffuse model, it adopted instruments such as, for example, the actions provided for in article 103 CF, thus existing singularities of both models, in the Brazilian legal system.
Mendes (2006) reinforces the importance of the instrument:
This fact strengthens the impression that, with the introduction of this system of abstract control of norms, with broad legitimization and, particularly, the granting of the right to propose to different bodies of society, the constituent intended to reinforce the abstract control of norms in the legal system. Brazilian as a peculiar instrument for correcting the general incident system. It is no less certain, on the other hand, that the broad legitimation given to abstract control, with the inevitable possibility of submitting any constitutional question to the Federal Supreme Court, brought about a substantial change — albeit unwanted — in the model of constitutionality control until then in force in Brazil.
The author emphasizes that, with this change, legitimacy was expanded, as controversies are submitted to the STF:
The monopoly of action granted to the Attorney General of the Republic, in the 1967/69 system, did not cause a profound change in the incident or diffuse model. This remained predominant, integrating the representation of unconstitutionality into it as an ancillary element, which contributed very little to differentiating it from other “diffuse” or “incident” systems of constitutionality control. The 1988 Constitution reduced the meaning of incidental or diffuse constitutionality control, by significantly expanding the legitimacy for filing a direct action of unconstitutionality (CF, art. 103), allowing, practically, all controversies