POSSE E PLANTIO PESSOAL DA CANNABIS À LUZ DA TEORIA DA IMPUTAÇÃO OBJETIVA

Abstract

Cannabis (marijuana) is the most consumed illicit substance in Brazil. Even in the face of the repressive and prohibitionist policy, most strongly inaugurated in the 70's, the consumption of the herb never went into decline. On the contrary, the international agenda of the wars on drugs did not prove to be very effective in reducing the number of users or the circulation of narcotics. Even so, a rigorous penal efficiencyist view prevailed, that is, practiced by the jus puniendi, mainly, in the face of the explosion of the so-called crimes of abstract danger. In these crimes, there is a very preventive protection by the State to safeguard collectivized and universal legal goods, believing that criminal law can, in the first instance, guarantee their safety and status quo. From the perspective of the modernity of risks, the marijuana user plays a dangerous role for the health of the community, because the simple fact that this individual uses marijuana, even if for personal purposes, there is an understanding that this would harm others. In this sense, there is the criminalization of art. 28 of Law no. 11.343/06, although this law has followed, in its principles and objectives, the constitutionalist movement of criminal law after redemocratization, referring, therefore, to the self determination of the being, freedoms and dignity of the human person. However, guaranteeism leads to criminal selectivity and inefficiency in maintaining this criminal policy, making it necessary to carry out a debate on mechanisms capable of interpreting in the modernity of fears whether, legally, the personal use of the herb creates a prohibited risk (ex ante) and intolerable to the legal good. In this line, this work makes this analysis based on Claus Roxin's theory of objective imputation, combined with the analysis of constitutional principles, which are minimum material assumptions for the legitimacy of penal intervention. Therefore, in the first chapter, the systematization proposed by the functionalist model and the theory of rox.