Honorable Judge President of the Distinguished COURT OF SAO PAULO
Patient: FERNANDA INDIAN
plaintiffs DR. MUHAMMAD USAMA SAMARA
constraining Authority: MM JUDGE OF CRIMINAL LAW OF THE FORUM OF STICK COUNTY AIR CASE NO CONTROL 0000000000000 No. 00000000
by the plaintiff below-signed, with the fulcrum in Article 5, item LXVIII of the Federal Constitution, has, before you, imploring this
HABEAS CORPUS APPLICATION WITH PRELIMINARY
FERNANDA
in favor of Indian, Brazilian, cohabitating, home against an act of MM JUDGE OF CRIMINAL LAW STICK AIR
by arguments, fact and law, then alluded to.
FACTS
According remains found in inquisitorial harvest, on 17/05/2010, prison guards who were escorting prisoners at the Presidio Parade Neto in Guarulhos, managed to secure the patient to the side wall of the prison held 300 grams of narcotic substance and alleged drug traficância. Finally, on 02.08.2010, the patient was considered guilty and sentenced to 05 years imprisonment, and being a good record primary and the reprimand was reduced by 2 / 3 for a total of 1 (one) year and eleven (11) months of imprisonment in the original scheme closed, no the penalty being replaced by restricting rights by explicit legal prohibition such as raids on art. 33, caput of Law 11.343/06,
is the brief account of the facts.
FUNDAMENTALS
By denying the substitution of imprisonment for a restrictive law was no distortion of constitutional principles and the provisions of the Federal Constitution, art. 5, XLI and XLVI. To bring up this writ, therefore, to stop the violation identified by virtue of the principle of individualization of punishment and the principle of proportionality.
The legislator has pinpointed the Law 11.343/06, the new anti-drug law, repealing the Law 6368/76 and Law 10.409/00. The legislature did well at various points of law 11.343/06, in appreciation, especially for those who recognize that narcotic door, or is chemically dependent, has to be treated differently by the state of him who actually trafficked in large quantities or part of criminal organizations. And walked well, too, in paragraph 4 of Article 33 which provided: "In Caput and offenses defined in the first paragraph of this article, trafficking crimes, the penalties could be reduced by 1 / 6 to 2 / 3 fenced conversions penalties restricting rights provided that the agent is a primary and a good record and not engaging in criminal activity or criminal organizations delivered.
What actually did the legislator? Recognized the recurring phenomenon in society that is the occurrence of small traffic, or traffic privileged, or if you like that "ant" practicing a trade that has a lower figure of great dealer, this rather large quantities of narcotics trafficking. In this case, meaning that the patient was in possession of 300 grams of cocaine, packaged in a way uncharacteristic of trafficking are not in doubt I. Judgmental, and here I would call them to attention what is questioned is the expression contained in Article 44 "PROHIBITED IN converting penalties restricting rights," but I draw the attention of V.ex th, that paragraph 4 of Article 33 that there is not a criminal type, but the circumstances of the agent characterize the trafficking of a minor or minor also contains the same expression, not exactly the same, but close very similar.
lords justices are not in doubt, and is well known that the legislator has a wide discretion and which measures to adopt to protect the legal criminal society and he has this wide margin, certainly, but that margin is not unlimited and I think there should be limits and main limit to my mind is the principle of proportionality is to say in his shed in the strict sense, better, and better apply to the case expression to the principle of prohibition of excess here that defender believes that if the seal on issues similar to that the conversion of imprisonment for restricting rights in the legislator went beyond that allowed him to violating the Charter of the Republic not only proportionality, and unwritten principle that derives from the democratic rule of law, but rejected by the Judiciary of injury and threat of injury to the right, but also by the judiciary inafastabilidade injury and threat of injury rule of law in order that obstructs the judiciary in this case to assess the possibility that citizens have their sentence of imprisonment substituted in restricting rights violation, yet, due process, and closely connected here and particularly on the individualization of punishment. For the principle of individualization of punishment, "Ab initio," the mission of Law is to protect fundamental values \u200b\u200bfor the livelihood of legal goods, such as life, health, freedom, the individualization of punishment is of fundamental ethical-social criminal law following the Federal Constitution:
"art.5 ° - omissis
XLVI - the law shall regulate the individualization of punishment and
adopt, inter alia, the following:
a) deprivation or restriction of liberty;
b) loss of assets;
c) fine;
d) alternative social;
e) suspension or disqualification; "
The principle of individualization correspondence between the sentence requires the accountability of the agent's conduct and the sanction to be applied, so that the sentence reaches its goals of prevention and repression. The State therefore has a ...........................................
CONTACT usama_salin@hotmail.com
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