REFLEXOS DAQUANTIDADE ENATUREZADADROGANAAPLICAÇÃODO TRÁFICO PRIVILEGIADO: UM ESTUDO DA JURISPRUDÊNCIA DOS TRIBUNAIS SUPERIORES

Abstract

This study aims to analyze the impact of the quantity and nature of drugs seized on the application of privileged drug trafficking provision, as set forth in article 33, § 4, of Law 11.343/2006, considering the jurisprudence of higher courts. For this research, a qualitative approach was used, with an inductive method, primarily employing bibliographic and documentary methods. The systematic review of case law focuses on decisions by the Supreme Federal Court and the Superior Court of Justice, analyzing concrete cases to identify the theses that establish the parameters for applying and setting penalties in privileged drug trafficking. The 2006 Drug Law introduced a stricter approach to drug trafficking but also innovated by establishing a penalty reduction for those minimally involved in criminal activities, characterizing privileged drug trafficking. However, the legislative flexibility, evidenced by the lack of objective legal parameters for sentencing and the scaling of the reduction between 1/6 and 2/3, has introduced significant challenges. Through an analysis of the jurisprudence of the Federal Supreme Court and the Superior Court of Justice, it was found that the quantity and nature of the drugs are frequently used as criteria to modulate or deny the reduction, although these factors are suited to the first phase of sentencing, thereby indicating an overlap of grounds that results in the violation of the ne bis in idem principle when considered cumulatively. The alternative use of these criteria, in turn, should also be avoided, as it disrupts the order of the trifurcated sentencing process, deviating from the principle of strict legality. Consequently, the current interpretation expands the magistrate's discretionary power in applying the reduction for privileged drug trafficking without clear legal parameters. It is concluded, therefore, that overcoming the issue of modulating the reduction fraction based on the quantity and nature of the drug requires a legislative revision of Article 33, § 4, of the Drug Law, eliminating the scaling and establishing a fixed standard for sentence reduction, thereby limiting judicial discretion.