The (un)constitutionality of the Drug Law in light of the principle of proportionality in the judgment of RE 635.659 by the Brazilian Supreme Court (decriminalization of marijuana possession)

Abstract

This text analyzes the decision of the Brazilian Supreme Court (STF) in Extraordinary Appeal No. 635,659, which declared unconstitutional, without reducing the text, article 28 of Law 11,343/2006 (Drug Law), which deals with the acquisition, storage, transportation or possession of drugs for personal use. The subject of the judgment was whether the possession of small amounts of marijuana for personal use should be considered a crime. The STF ruled that possessing small amounts of marijuana for personal use, of 40 (forty) grams or 6 (six) plants, continues to be prohibited, but no longer constitutes a crime. The dictum was based on the protection of the right to privacy and individual liberty, according to art. 5, item X of the Constitution. Furthermore, it was recognized that the use of marijuana as a criminal act would encourage criminal activities, not reduce consumption. However, after a careful examination of the proportionality test in criminal matters, we disagree with the conclusion of the plenary, which disregarded the empirical epistemological and public health doubts that were relevant to the analysis. Therefore, we conclude that art. 28 of the Drug Law is constitutional, in protection of legislative activity, which ensures due parliamentary debate for the formation of norms, since in the case of empirical and public health doubts, when relevant to the proportionality test, as prescribed by Robert Alexy, there is a prima facie prevalence of the formal principle of the democratic legislator.