The first casualty of the government Dilma is felt in the resignation of Peter Abramoway National Secretariat Drug Policy. Abramoway lost his job because he advocated an end to prison for minor drug dealers. The Secretary argued that it was just consecrate, in a bill, the understanding of the Supreme Court in recent judgments that provides for the replacement of the penalty restricting freedom of penalties restricting rights to those accused of drug trafficking that are primary good background, not his / herself to criminal activities or integrate criminal organization.
Not that I am politically, religiously, ethically, or against any criminal activity, among them drug trafficking. But the inconsistencies, the constraints illegal, unconstitutional due to new laws must be discussed and countered primarily by us, the professionals of the area.
As a criminal lawyer I have as a basis for justice, because justice is a society built on fundamental laws imposing rules determining rights and duties that all citizens should orient.
When the legislature is wrong, down laws that violate rules or determining rights violating constitutional requirements or often appeals to meet society's tired of so many excesses and eager to give satisfaction to the same society in relation to any crime in evidence but injuring rights we have to rebel against such attitudes.
this case, as a professional Amabroway, aware of these facts and with the intent of justice only, has been misinterpreted, because society thinks that by defending the rights of criminals, more specifically, drug dealers, are in favor of such illicit activity, which is not true. Thought this
, Dilma also our president, who like his predecessor, runs away from the controversial to not be misunderstood by society.
turn now to the analysis of such controversy.
Paragraph 4 of Article 33 of Law 11.343/06 (Drug Law) provides as follows: In § 4
crimes defined in the introduction and in § 1 of this article, the sentences could be reduced by one sixth to two thirds, sealed conversion to penalties restricting rights, provided that the agent is a primary, a good record, not engaging in criminal activities or to integrate criminal organization.
So the "caput" of article 33 of that Act provides:
Section 33. Import, export, remit, prepare, produce, manufacture, purchase, sell, expose for sale, offer, storing, transporting, carrying, storing, prescribing, administering, delivering the consumption or supply drugs, even for free, without authorization or in violation of legal or regulatory:
Penalty - 5 (five) to 15 (fifteen) years and payment of 500 (five hundred) to 1,500 (one thousand five hundred) fine-days.
Thus a drug dealer who has a good record, is primary (never got involved with crime), and does not engage in criminal activity and criminal organizations do not incorporate it will have a maximum penalty of 1 (one) year and eight (8) months' imprisonment.
The same law forbids verbatim, in Article 44 to replace the penalty restricting freedom in restricting rights and amnesty, grace, pardon and parole:
Article 44 The crimes set forth in arts. 33, caput and § 1 and 34 to 37 of this Act are and insusceptible probation, grace, pardon, amnesty and parole, prohibited the conversion of their sentences in restricting rights. (HERE IS THE ARTICLE 44 OF THE LAW ON DRUGS).
And this is where all this controversy arose because Article Article 44 of the Penal Code is very clear:
Article 44. The penalties restricting rights are autonomous and replace the private of freedom, where:
I - applied imprisonment for not more than four years and crime is not committed with violence or serious threat to person or whatever punishment if the crime is manslaughter; II - Defendant not repeat in a felony, and III - the guilt, the history, social behavior and personality of the offender, as well as the reasons and circumstances indicate that this replacement is sufficient. (HERE IS THE ARTICLE 44 OF THE CRIMINAL CODE).
(Writing amended by Law No. 9714 of 1998)
It is here that you take that as required by art. 44 of the Criminal Code is possible to replace custodial sentences by restricting rights if the offense is not committed with violence or serious threat to the person, the penalty of imprisonment imposed shall not exceed the limit of four years and the agent meet the requirements to receive the subjective benefit . The
the crime of drug trafficking objectively conforms to the provision contained in art. 44 of the Criminal Code, as violence or serious threat to a person not part of the offense.
However, art. 44 of Law 11.343/06 veda, abstractly, the replacement of deprivation of liberty by restricting rights, tarnishing the principles and the need of individualization of punishment.
This is the position of the Supreme Court:
SUMMARY: HABEAS CORPUS. CRIMINAL. TRAFFICKING IN DRUGS. FIXING THE PENALTY. FAVORABLE CIRCUMSTANCES. LEVY SCHEME MEETING MORE SEVERE THAN EXPECTED IN LAW. LAW TO REPLACEMENT OF custodial sentence BY OTHER RESTRICTED RIGHTS. Illegal constraint. EXCEPTION TO SUMMARY 691. Narcotics trafficking. The sentencing procedure. Circumstances favorable court. Fixed penalty in an amount which allows replacement of the deprivation of liberty for restriction of rights or the beginning of the sentence in the open. Enforcement, however, the regime closed. Give rise to unlawful constraint exception to 691/STF Precedent. Order granted. (STF, 2nd Class, HC 101 291-SP, rel. Min. Eros Grau, DJE 12/02/2010).
SUMMARY: HABEAS CORPUS. CRIMINAL. TRAFFICKING IN DRUGS. REPLACING THE PEN OF FREEDOM BY ANOTHER PRIVATE RESTRICTED RIGHTS. REQUIREMENTS. CONSTRAINING ILLEGAL EVIDENCE. EXCEPTION TO SUMMARY 691/STF. REDUCING THE PENALTY REFERRED TO IN THE ART § 4. 33 THE LAW N. 11.343/2006, SEALED REPLACEMENT FOR OTHER RESTRICTED RIGHTS. SITUATION most onerous. Inapplicability. 1. Conviction for trafficking narcotics, one year and eight months' imprisonment in a closed regime. Presence of the requirements for replacement of deprivation of liberty for other restriction of rights, as well as the open system. Evidenced illegal constraint, justifying an exception to this Court Precedent 691. 2. Reduction of 1 / 6 to 2 / 3 of the penalty provided for in § 4 of art. 33 of Law No 11.343/2006, sealed replacement by another restriction of rights. Situation more burdensome to the patient. Inapplicability. Order granted in part, ex officio, to ensure the patient to replace the term of imprisonment by another restriction of rights, as well, so that if there reversal, the commencement of the deprivation of freedom takes place under the initial open. (STF, 2nd Class, HC 100 590-DF, Rel. min. Eros Grau, DJE 27/11/2009).
Thus, the intention of the Secretary, as I said, was only to establish a position based on understanding the Supreme Court.
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