MPSP speaks out against the decriminalization of drug possession for personal consumption
Dr. Mario Luiz Sarrubbo, Attorney General of the State of São Paulo, filed a memorial with the Federal Supreme Court (STF) with the position of the São Paulo Public Prosecutor's Office on the agenda that deals with the possible decriminalization of drug possession for personal consumption.
The PGJ's position was forceful for the non-decriminalization of drugs and for the constitutionality of article 28 of law 11343/2006.
This agenda was on the STF's agenda to be judged on 06/01, but was postponed. The new date is scheduled for 06/21/2023.
We need to be attentive and mobilized, as well as the São Paulo Public Prosecutor's Office, because the risk to society is real and there are only three votes left for the decriminalization of possession to have a favorable majority in the Supreme Court.
According to Agência Brasil, so far, three ministers - Luís Roberto Barroso, Edson Fachin and Gilmar Mendes - have voted, all in favor of some kind of decriminalization of drug possession. The appeal on the subject has recognized general repercussion, and should serve as a parameter for the entire Brazilian Judiciary.
Mendes was the only one to vote for the decriminalization of the possession of any drug, without specifying quantity, due to the right to intimacy and the inviolability of the user's personal life. Fachin, in turn, suggested that only marijuana possession be decriminalized. Barroso also voted in this sense, and suggested that the Supreme Court determine that it is not a crime to carry up to 25 grams of marijuana or grow up to six plants for personal consumption.
The next minister to vote will be Alexandre de Moraes.
This will be a decision that will affect the lives of millions of Brazilians and their families for the worse.
We quote here what Dr. Guilherme Athayde, Prosecutor (MPSP), partner of Freemind and ISSUP and Specialist in Chemical Dependency at UNIAD-Unifesp, said: "Children, adolescents and young people will be the ones who will suffer the deleterious impacts of any decriminalization measure and greater "normalization" of drugs. If there is an absolute priority to follow, it is the full protection of children, adolescents and young people. In conclusion, it is worth noting that decriminalization paves the road that will lead to the abyss of legalization of more drugs - in a country of continental dimensions".
It is time for society and Congress to take a stand and openly speak out against this release. It is time to sensitize the Ministers of the Supreme Court, warning of the damage, direct and indirect, to the entire population.
Below are some excerpts from the memorial presented by the MPSP:
"The maintenance of the prohibition and incrimination of the so-called "possession of narcotics for personal use", also applicable to the acquisition, storage, storage and transportation, is justified because it is not considered an attack against the individual health of the person who practices the conduct, but because it is an attack against public health, protected by the Federal Constitution, in the Chapter of Social Security, specifically in the Health section (articles 196 to 200). Indirectly, there is a violation of public security, protected by articles 5, caput, and 6, caput, of the Charter.
Therefore, the purpose of anti-drug legislation does not contradict the Constitution or subvert its objectives.
Now, if the objective is the protection of health and, mediately, of public safety, the criminalization of the conduct of possessing drugs - to use a generic term - is an adequate means to achieve such a relevant purpose.
It can be perfectly stated that such an incrimination will not prevent the proliferation of drugs. Even if one could empirically demonstrate the correctness of such a statement, it must be refuted by means of a simple observation: in order for any restriction to a fundamental right (here, as is alleged, the right to privacy) to be considered appropriate, it is not necessary that the objective (in casu, the non-proliferation of illicit drugs) be effectively achieved, it is sufficient that, in a relationship of means and ends, it is verified that the measure adopted (the criminalization of possession for personal consumption) is suitable.
If the objective of preventing proliferation is in accordance with the principle adopted by the Federal Constitution, one of the ways to achieve this objective is by prohibiting the free circulation of psychoactive substances that are understood to be harmful to the individual and the collectivity. Are there other ways to prevent proliferation? It is possible, but the criterion of adequacy only requires an analysis of the suitability of the means chosen by the legislator. And the means adopted - the criminal treatment of the matter - is suitable.
It is also necessary.
...
Today, in our country, no other suitable means has yet been presented that can be minimally effective to prevent the proliferation of illicit drugs, even more so since the decriminalization of the logical antecedent of possession for personal consumption, that is, the drug trade, is not considered. Finally, our normative system does not provide any other form of protection for the legal interest protected by the rule attacked in the present appeal.
If the thesis of the unconstitutionality of article 28 of Law No. 11,343 wins, we will have made a peculiar decriminalization: anyone can have any drug with them, for personal consumption; Prison, however, will be the fate of the one who provides it. In a structurally unequal nation, it does not take much intellectual effort to know, in advance, who will continue to attend prisons and which privileged ones will continue to enjoy, in oblivion, complete freedom.
It is true that other countries have adopted the path of decriminalization, even partial, of illicit drugs. It so happens that the latter, by adopting such a solution, did so as a state policy, bringing, including to the public service, means to deal with practical problems inherent to the liberalization of these substances.
In Brazil, as is obvious, the tragic example of the city of São Paulo and its "Cracolândia" should serve as a warning for any attempt to, overnight, throw the final tip of the criminal commercial chain of drugs into full legality, as it reveals how unprepared we are to deal with such a problem.
It is legitimate to ask, if the unconstitutionality of article 28 is declared, how the possession and consumption of drugs will be controlled: can it take place in any public place or only in the corners of private life? Where can the user smoke his portion of crack? On the sidewalk of the school? Will the injection of cocaine into the bloodstream be allowed in a square, in broad daylight? By the way, who will sell the drug? Are such "freedoms" really in accordance with the Brazilian Federal Constitution? We believe not.
Thus, criminalization persists as the only effectively known and tested means of drug control, even if its effectiveness is questionable, even if the merits of the "war on drugs" and everything else we have seen in recent decades can be discussed. But, for the time being, there is no other, it should be repeated, minimally efficient way to prevent the proliferation of such substances.
....
The reason for the continuity, for the time being, of the criminalization of the conduct through article 28 of Law No. 11,343 is absolutely proportional to the intended purposes of reducing the proliferation of drugs, as well as safeguarding public health and the community in general.
And, as previously stated, the Drug Law brought a sanction proportional to the seriousness of the conduct, even preventing any possibility of applying a custodial sentence, since the legislator opted only for penalties that restrict rights, favoring the general positive prevention of the penalty.
Finally, contrary to the aforementioned unconstitutionality, it can be affirmed, in view of all the considerations already presented, that the criminalization of the possession of drugs for personal consumption is, in Brazil, at the present time, an imperative, if one really wants to face the serious problems of public health and safety brought about by illicit drug trafficking, which is why the absence of criminalization of the last stage of the trade chain would bring virtual unprotection of these same rights fundamental and social rights, representing deficient protection by the State, which, in view of proportionality, also represents a posture that affronts the Constitution.
Conclusion
In view of the above, the Public Prosecutor's Office of the State of São Paulo expects the extraordinary appeal to be dismissed, maintaining the conviction in full, declaring the criminal type of article 28 of Law No. 11,343/2006 constitutional ."
