A legitimidade do STF para descriminalizar o porte de maconha para uso pessoal: análise à luz dos fundamentos proferidos no RE 635.659/2014

Abstract

The present study analyzes the decision issued by the Supreme Federal Court (STF) in Extraordinary Appeal No. 635,659, which decriminalized Article 28 of Law No. 11,343/2006, known as the Drug Law, when applied to the substance marijuana, and established objective criteria to differentiate the conduct of possession for personal use from the crime of drug trafficking, provided for in Article 33 of the same law. The main objective of this study is to analyze the constitutional limits of the Supreme Federal Court’s actions in adopting this position, verifying whether there was an overreach of its constitutional role. Furthermore, as secondary objectives, the study also: analyzes the context of the drug enforcement policy adopted by Brazil; analyzes the specific case that led to the decision, as well as the votes and legal reasoning that resulted in it; and investigates the legislative reaction to this ruling. Regarding the methodology, this research was carried out as a case study, with a qualitative approach and descriptive nature, focusing on documentary and bibliographic analysis, specifically on the Supreme Federal Court’s decision in Extraordinary Appeal No. 635,659. The analysis was based on the interpretation of specialized legal doctrines and normative texts, especially the 1988 Federal Constitution and Law No. 11,343/2006, as well as academic works related to the topic. The central theme of this study is justified by the intense debates it has generated across various sectors of society, as it represents a landmark decision that directly impacts the application of drug policy in Brazil. Concepts of legal phenomena that are prominent in current studies, such as judicial activism and the backlash effect, are essential for a better understanding of the subject under analysis. As a result, it was found that the Supreme Court did not overstep the role of the Legislative Branch regarding the decriminalization of marijuana possession, as its actions were limited to exercising its function of constitutional review of infraconstitutional norms. However, concerning the definition of practical parameters to distinguish the conduct described in Article 28 of the Drug Law, there is evidence of judicial activism, albeit moderate, which is justified given the legislative omission.