A declaração de inconstitucionalidade do art. 28 da lei 11.343/2006: uma análise sobre o controle de constitucionalidade realizado no re 635.659 e o critério adotado para distinguir o uso pessoal do tráfico

Abstract

This paper analyzes the grounds for the constitutionality review of Article 28 of Law No. 11.343/2006 in the context of the judgment of Extraordinary Appeal No. 635.659 by the Federal Supreme Court of Brazil. The legal, constitutional, and social foundations surrounding the criminalization of drug possession for personal use and the impacts of the Supreme Court's decision were examined, with particular focus on the establishment of an objective criterion to distinguish users from traffickers. The study considers the historical development of drug legislation in Brazil, highlighting the influence of discriminatory concepts and foreign policies that led to penal selectivity. The enactment of Law No. 11.343/2006 introduced health-based measures in place of custodial sentences. However, the lack of objective criteria to differentiate users from traffickers has allowed discriminatory practices to persist, undermining the purpose of the legislation. The analysis of RE 635.659 showed that, due to legislative omission, it became necessary for the Supreme Court to define minimum parameters, establishing a rebuttable presumption of personal use for possession of up to 40 grams of cannabis sativa or six female plants, with the aim of mitigating distortions produced by the justice system. Although this criterion represents progress in terms of legal certainty and limits on arbitrariness, it still leaves room for subjective interpretations, especially in socially vulnerable contexts. The judicial intervention, while relevant to the mitigation of structural inequalities, must be accompanied by concrete legislative action to establish a drug policy that is fairer, more rational, and consistent with constitutional principles.