Lei de drogas: a tipicidade penal e a discricionariedade na distinção entre usuário e traficante

• Autor(a) principal: Rueda, Adriano Apodaca
• Data de Publicação: 2022
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/32805
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Lei de drogas; Usuário; Traficante; Consumo pessoal; Tráfico de drogas; Diferenciação; Seletividade penal; Tipo penal; Tipicidade; Ausência de critérios objetivos; Lei de drogas; User; Drug dealer; Personal consumption; Drug dealing; Differentiation; Criminal selectivity; Criminal type; Typicity; Absence of objective criteria

The present work studies the distinction between the figure of the user and the figure of the drug dealer established in the Lei de Drogas 11.343/2006, in view of the judgment of criminal typicity. With this purpose, first a brief historical context about drug policy in Brazil was presented, paying attention to the influence of the prohibitionist culture in the construction of legislation on the subject. Next, the Lei de Drogas was studied in terms of its main changes in the legal system. After that, the structures of the criminal types expressed in articles 28 and 33 of the current Lei de Drogas were analyzed in light of the concepts of criminal type and typicality, taking into consideration the absence of objective criteria to determine the adequate subsumption of the fact to the abstract legal model. In addition, the consequences of the discretionary differentiation between crimes of personal consumption and illegal commerce of narcotic substances were examined, giving importance to penal selectivity. At the end, in order to corroborate the core of the study herein developed, a very brief research was carried out on recent judgments handed down in the various Varas Criminais do Foro Central da Barra Funda, located in the Comarca de São Paulo. Finally, through this theoretical and practical study, it became clear that there is a technical-legislative flaw in the wording of the aforementioned criminal types, which offends the principle of typicality, fundamental in the area of Criminal Law