‎Brazil News

The Senate approved this Tuesday, 16th, in two rounds, the proposal that includes in the Federal Constitution the criminalization of possession and possession of any quantity of illicit drugs. PEC 45/23 had 53 votes in favor and nine against in the first round, and 52 in favor and nine against in the second round. The text goes to the Chamber of Deputies.

 

Presented by the president of the House, Rodrigo Pacheco, the PEC adds an item to art. 5th of the Federal Constitution to consider possession and possession as a crime, regardless of the quantity of narcotics and drugs without authorization or in violation of the law. According to the proposal, the distinction between the trafficker and the user must be observed due to the factual circumstances of the specific case, applying alternative penalties to prison and addiction treatment to users.

 

Art. 1 The caput of art. 5th of the Federal Constitution comes into force with the addition of the following section LXXX:

 

"Article 5. .............................................. .....................

 

.................................................... ...............................

 

LXXX - the law will consider possession and possession, regardless of quantity, of narcotics and similar drugs without authorization or in violation of legal or regulatory determination as a crime.

 

.................................................... .................. (NR)

 

Art. 2 This Constitutional Amendment comes into force on the date of its publication.

 

Pacheco clarified that the PEC makes a reservation about the impossibility of depriving freedom of possession for drug use. "In other words, the user will never be penalized with incarceration" , he said. He also highlighted that the use of substances derived from illicit drugs for medicinal use will not be affected by the PEC.

 

Currently, law 11,343 , of 2006, known as the drug law, establishes that it is a crime to sell, transport or supply drugs. The penalty is imprisonment for five to 15 years, in addition to a fine. Acquiring, storing, transporting or cultivating drugs for personal consumption is also considered a crime under current law, but in this case the penalties provided for are warning, educational measures and provision of services to the community. The legislation does not establish a quantity of drugs that differentiates the two crimes.

 

When justifying the presentation of the PEC, Rodrigo Pacheco argues that there is no drug trafficking if there are no people interested in purchasing them. "The drug trafficker earns income - and uses it to acquire weapons and expand his power within his territory - only through the commercialization of the product, that is, through sale to an end user" , he says.

 

 

Senate deliberates on PEC 45/23, known as PEC on Drugs. (Image: Roque de Sá/

Voting in the STF

 

The approval of the PEC by the Senate is a response to the STF, which also evaluates the issue of drug possession. The judgment on the matter was suspended in March due to a request for review presented by Minister Dias Toffoli. Before the interruption, the trial was 5 votes to 3 for the decriminalization of only marijuana possession for personal use.

 

Read more

STF forms majority to differentiate trafficking from marijuana use; Toffoli asks for a view

 

In the appeal analyzed, the STF judges the constitutionality of article 28 of the drug law. To differentiate users and traffickers, the rule provides alternative penalties for providing services to the community, warning about the effects of drugs and mandatory attendance at an educational course for anyone purchasing, transporting or possessing drugs for personal consumption.

 

The law no longer provided for a prison sentence, but maintained criminalization. Thus, drug users are still the target of police investigations and legal proceedings seeking to enforce alternative sentences.

 

In the specific case that motivated the trial, the defense of a convict asks that possession of marijuana for personal use no longer be considered a crime. The accused was arrested with 3 grams of marijuana.

 

 

Discussion sessions

 

The first discussion session of the matter in the first round was held on March 19. The second discussion session was the following day. The third discussion session took place on March 26. On April 9, the fourth discussion session was held. This Tuesday's vote was preceded by the fifth discussion session, as required by the Constitution. 

 

Speaking in favor of the approval of the PEC on drugs were senators  Bolsonaro, Ciro Nogueira, Rodrigo Cunha,  Alves and others. They argued that it is the National Congress that should draw up public policies on drugs, not the STF. 

 

They also argued that the decriminalization of marijuana in other countries increased trafficking and consumption of the drug, including among children under 18, and increased psychological illnesses. According to supporters of the proposal, research has already shown that the vast majority of the Brazilian population is against the decriminalization of drugs due to the damage to public health and public safety.

 

"The reality is that this type of undue, mistaken interference, absolutely harmless judicial activism will result in serious harm to society. There is no practical demonstration that this decision by the Supreme Court, without a response from Congress, will generate any type of benefit: it will not improve public health, because all the indicators of the countries that have gone in this direction are of increased dependence, increased consumption; it will not improve the economic part, because the other stages of the process are not legalized" , said Alessandro Vieira.

 

Senators Humberto Costa,  Carvalho,  Faro, Renan , Wagner,  Maia and others spoke for the rejection of PEC 45/23. They argued that the STF does not legislate, but has to take a stand when provoked and has to interpret the laws in accordance with the Constitution. They also argued that the proposal does not innovate legislation and will continue to "criminalize poverty", further increasing the arrest of poor and black people with small amounts of drugs. Furthermore, they stated that the approval will not change in any way the reality of drug consumption or trafficking in the country.

 

"It will not be by clogging up the prisons that we will solve the drug problems in Brazil" , said Wagner.