The illegitimacy of the crime of possession of illicit drugs for personal use: an analysis of the conflicts between the criminal type of art. 28 drug law and the basis of constitution and criminal law

Abstract

nitially, the study will seek to expose the general characteristics existing in article 28 of Law No. 11.343 / 2006 (Drug Law), which describes the possession of drugs for personal consumption, bringing the existing discussions regarding the typification conduct as a crime or not. Secondly, the need to recognize criminal law from the perspective of subsidiarity is emphasized and should only be triggered when undoubtedly relevant legal interests are being threatened. This logical construction will be necessary to support the central idea that criminalizing personal illicit drug use has been disproportionate and lacking in legitimacy, as it hurts the subject's self-determination as well as the pillars of the criminal juridical interest theory since the allegedly threatened interest, public health, is not liable to injury when a user takes illicit drugs, which, at best, could be characterized as self-harm. Therefore, the present study aims to recognize that this growing and unnecessary criminalization of conduct by the State only testifies to the unbridled pursuit to achieve such idealized public security, but in practice only reveals itself through an illogical punishment, with effects quite different from the originally intended. Regarding the methodological aspect, we used bibliographic analysis that also develop the theme under discussion, serving as a foundation for the notes that will be raised here