A (i)legitimidade da intervenção penal no porte de drogas ilícitas para consumo pessoal do art. 28 sob a ótica dos princípios penais fundamentais

Abstract

The objective of this study is to analyze the legitimacy or illegitimacy of the application of Criminal Law and, therefore, of criminal intervention, within the scope of the privacy related to the possession of illegal drugs for personal consumption. 28, caput, of Law 11,343 / 2006. In order to do so, three of the fundamental criminal principles, namely the principles of legality, minimum intervention and lesivity, were first analyzed in order to understand their limiting functions and how they relate to the prohibition of drug possession for personal consumption. In a second moment, the analysis about the legal nature of art. 28 of Law 11,343 / 2006, and then the main inconsistencies were presented in the speeches favoring the maintenance of criminalization of the possession of illicit drugs for personal consumption. Afterwards, the topic and legitimacy of state paternalism, in general and in the legal-penal modality on the subject of drugs, was elaborated, expanding the discussion to deal with the question of the incompatibility between the foundations of the paternalistic state intervention and the censuratory nature of the penalty. Finally, a comparison was made between reality and legal norms in its two species, rules and principles, by which it is possible to affirm that there is a violation of fundamental criminal principles in the criminalization of possession of drugs for personal consumption and, therefore, be illegitimate criminal intervention