Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 28-A CPP – Criminal non-prosecution agreement and dementi drug policy

Contribua com a manutenção deste site, faça um pix para [email protected].

Art. 28-A. If this is not a case of filing and having the investigated person confessed formally and circumstantially to the commission of a criminal offense without violence or serious threat and with a minimum penalty of less than 4 (four) years, the Public Prosecution Service may propose an agreement of non-criminal prosecution, provided that it is necessary and sufficient for disapproval and crime prevention, subject to the following conditions adjusted cumulatively and alternatively:  (Included by Law No. 13,964, of 2019)

I – repair the damage or return the thing to the victim, except when it is impossible to do so;  (Included by Law No. 13,964, of 2019)

II – voluntarily renounce goods and rights indicated by the Public Prosecutor’s Office as instruments, proceeds or benefits of the crime;  (Included by Law No. 13,964, of 2019)

III – provide service to the community or public entities for a period corresponding to the minimum penalty for the crime reduced by one to two thirds, in a place to be indicated by the judgment of execution, pursuant to art  . 46 of Decree-Law No. 2,848, of December 7, 1940 (Criminal Code) ;   (Included by Law No. 13,964, of 2019)

IV – pay a pecuniary benefit, to be stipulated under the terms of  art. 45 of Decree-Law No. 2,848, of December 7, 1940 (Criminal Code),  the public entity or one of social interest, to be indicated by the enforcement court, which has, preferably, the function of protecting legal interests equal to or similar to those apparently injured by the crime; or     (Included by Law No. 13,964, of 2019)

V – fulfill, for a specified period, another condition indicated by the Public Prosecutor’s Office, provided that it is proportionate and compatible with the criminal offense charged.  (Included by Law No. 13,964, of 2019)

§ 1 In order to assess the minimum penalty for the offense referred to in the caput of this article, the causes of increase and decrease applicable to the specific case will be considered.  (Included by Law No. 13,964, of 2019)

§ 2 The provisions of the caput of this article do not apply in the following cases:   (Included by Law No. 13,964, of 2019)

I – if a criminal transaction within the competence of the Special Criminal Courts is applicable, under the terms of the law;  (Included by Law No. 13,964, of 2019)

II – if the investigated person is a repeat offender or if there are probative elements that indicate habitual, repeated or professional criminal conduct, except if past criminal offenses are insignificant; (Included by Law No. 13,964, of 2019)

III – have been the agent benefited in the 5 (five) years prior to the commission of the infraction, in an agreement of non-criminal prosecution, criminal transaction or conditional suspension of the process; and   (Included by Law No. 13,964, of 2019)

IV – in crimes committed in the context of domestic or family violence, or committed against women for reasons of their female status, in favor of the aggressor.   (Included by Law No. 13,964, of 2019)

§ 3 The agreement of non-criminal prosecution will be formalized in writing and will be signed by the member of the Public Prosecutor’s Office, by the investigated person and by his defender.  (Included by Law No. 13,964, of 2019)

§ 4 For the approval of the agreement of non-criminal prosecution, a hearing will be held in which the judge must verify its willingness, through the hearing of the investigated person in the presence of his defender, and its legality. (Included by Law No. 13,964, of 2019)

§ 5 If the judge considers the conditions set forth in the non-criminal prosecution agreement to be inadequate, insufficient or abusive, he will return the case to the Public Prosecutor’s Office so that the proposed agreement can be reformulated, with the agreement of the investigated person and his lawyer. (Included by Law No. 13,964, of 2019)

§ 6 Once the agreement of non-criminal prosecution has been judicially ratified, the judge will return the case files to the Public Prosecutor’s Office so that execution can begin before the criminal enforcement court. (Included by Law No. 13,964, of 2019)

§ 7 The judge may refuse approval to the proposal that does not meet the legal requirements or when the adequacy referred to in § 5 of this article is not carried out.  (Included by Law No. 13,964, of 2019)

§ 8 If approval is refused, the judge will return the records to the Public Prosecutor’s Office for analysis of the need to complement the investigations or to file a complaint.  (Included by Law No. 13,964, of 2019)

§ 9 The victim will be notified of the ratification of the non-criminal prosecution agreement and its non-compliance.  (Included by Law No. 13,964, of 2019)

§ 10. Failure to comply with any of the conditions stipulated in the agreement of non-criminal prosecution, the Public Prosecutor’s Office must notify the court, for the purpose of its termination and subsequent filing of a complaint. (Included by Law No. 13,964, of 2019)

§ 11. Failure to comply with the agreement of non-criminal prosecution by the investigated person may also be used by the Public Prosecutor’s Office as a justification for the eventual non-offering of conditional suspension of the process. (Included by Law No. 13,964, of 2019)

§ 12. The conclusion and fulfillment of the agreement of non-criminal prosecution shall not appear on a criminal record certificate, except for the purposes set forth in item III of § 2 of this article. (Included by Law No. 13,964, of 2019)

§ 13. Once the agreement of non-criminal prosecution has been fully complied with, the competent court will decree the extinction of criminal liability.  (Included by Law No. 13,964, of 2019)

§ 14. In case of refusal, by the Public Prosecutor’s Office, to propose the agreement of non-criminal prosecution, the investigated person may request the remittance of the records to a higher body, pursuant to art. 28 of this Code.  (Included by Law No. 13,964, of 2019)

Negotiation. Advance or retreat? Background. Less bad.

https://www.youtube.com/embed/VVHwNn0ljjI?feature=oembedCriminal non-prosecution agreement

The negotiation of the right to punish: In the common law system , the transaction is a negotiation. Negotiation between the parties. There is no judicial oversight. In the European system, there is possibility of judicial review. In Europe, the transaction was introduced by the Public Ministry in the 1970s. Currently, several countries, including Latin America, adopt conciliation, such as Germany, Holland, Spain, Italy, Colombia, Chile, Uruguay and Argentina. In Brazil, conciliation is introduced in 1995, with Law n. 9,099/1995 (special courts) for crimes punishable with a sentence not exceeding two years, through the institutes of transaction ( article 76 ) and suspension of proceedings ( article 89 ).

Is it really a breakthrough?The introduction of the non-criminal prosecution agreement has been much celebrated. We have doubts, however, about the benefits of the agreement for criminal policy. Praise for the system is based mainly on the reduction, in the judiciary, of minor cases, thus allowing judges to pay more attention to the most important and serious criminal procedures, reducing costs of criminal justice. It does not take into account the circumstance that the criminal process, even if its end is predictable in many cases, poses a threat of loss of liberty to the accused. He is, for years, under the risk of being arrested. Such a threat of imprisonment, in the subjectivism of the accused, does not cease until the end of the process, even when it is known in advance that the process will not result in imprisonment, even after a conviction has been passed. Now, this unfolding of the procedure, that sequence of procedural acts, with questioning of witnesses, interrogation, subpoenas, mandatory attendance, produce the same effect that is expected from the penalty, which is that of special prevention, which aims at the rehabilitation of the delinquent ( valid statement for when the accused is guilty). It is not only the penalty foreseen in the abstract, or the one applied in concrete, that has preventive and repressive effects of the crime. The process also seeks these results. The process whose prognosis is to end without arrest has less relevance. There is no rush, as celerity, as a principle, does not apply to all cases – it is a principle of civil procedure, of the criminal process of the arrested accused and of the accused in which the existing body of evidence indicates innocence. There is no rush to judge it – on the contrary, because the greater the temporal dosage of the medicine, the more likely the cure will be –, it cannot be said that the procedure disturbs the progress of the relevant processes. It can wait. If it prescribes rather than results in a sentence, that is to say, it makes no difference from a criminal policy point of view. No, we cannot agree that conciliation instruments represent progress for criminal policy. The fact that they have been adopted in different countries does not say much. It’s a new experience. It has existed in US law for many years, and there it is a disaster. The thief (theft) of today may be the burglar (theft) of tomorrow. Anyone who gets involved in crimes of personal injury (and there are those who do it with some frequency) can become the murderer of the future. A simple conciliation hearing, which is possible to foresee, informal and quick, in these cases, is very far in terms of effectiveness for the criminal policy when compared to a long and threatening criminal process (we point out: the accused in the process whose evidence is favorable to him has instruments to enforce the principle of celerity). We are not convinced of the benefits of penal transactions. None of them. Virtually all offenses that do not involve violence can, in theory, be included in the non-prosecution agreement system. Among them there are serious crimes that deserve greater reprimand, even if it is the (pedagogical) punishment of a long criminal process. Among other crimes we are referring to, there are concussion (article 316 of the CP), active corruption (article 333 of the CP), passive corruption (article 317 of the CP), embezzlement (article 312), false testimony or false expertise (Article 342), forgery of a public document (Article 297 of the CP), theft (Article 155 of the CP – including some forms of aggravated theft) and arson (Article 250). The population does not know, in general, the right and the law. The same is not true of their transgressors. Delinquents know several provisions of the penal code, especially those related to the crimes they usually commit. They soon acquire knowledge of crimes that do not result in arrest when committed for the first time. How many will not take advantage of this opportunity? The pedagogical purpose of the criminal procedure is being neglected – not least because it is little commented on.

Resolution 181. The normative antecedent: The mother of the non-criminal prosecution agreement is resolution n. 181 of the National Council of the Public Ministry – CNMP . It is arguably a resolution outside the law. When edited, it had no legal basis. It violated the principle of obligation. This ordinance is strange, since it is up to the Public Ministry, according to the constitutional precept, to defend the legal order ( article 127 of the CF). At the Supreme Court, two actions have as object its constitutionality, the ADIs 5790 and 5793, proposed by the Association of Brazilian Magistrates and by the Federal Council of the OAB. The grandmother of the non-prosecution agreement is the criminal transaction of the special courts. As a matter of fact, this agreement is not something so new. It is the transaction of the Special Courts under a new guise (article 76 of Law n. 9.099/95), only applicable to more serious crimes. Comparing the two forms of conciliation, it appears that they are identical in several aspects.

The imposed limit. Lesser of evils:The agreement can only be carried out if the minimum sentence for the crime is less than four years. If the minimum penalty were higher, or if no penalty limit were established for the non-prosecution agreement, we would be subject to the same disaster as the US punitive system. There, where the prosecutor is more committed to politics and the community than to the law, it is not uncommon for the prosecution to use two adversarial negotiation “strategies”: one, to convince the accused that he has more evidence than who really owns; two, to convince the accused that the evidence available to him typifies a more serious crime than the one they actually indicate. Both strategies have a single purpose: to obtain, under threat, the worst deal for the accused. Singularities of a system admired by some contemporary writers, a wonder that is only justified by the fact that some do not assimilate that law has the history and culture of a nation as its substrate. What is good for one people may be bad for another. On this topic, the groupPrerogativas , made up of well-known Brazilian jurists, made interesting considerations in the article Deconstruction of Moro’s “anti-crime” package and the brake against retrogression, published in Revista Conjur. According to the publication’s signatories, “the outdated and inquisitorial Brazilian Criminal Procedure does not support a negotiating space without a penalty limit, the infantile Americanization proposed by Moro, in which the Public Ministry could negotiate a penalty with the corrupt person, but also with the drug dealer and even with the rapist. Imagine the dialogue: we have plenty of proof that you are the perpetrator of the rape, we have DNA, recognition, etc. (…) We could ask for a sentence of 12 years in prison, but if you confess, we’ll close in 6 years in the semi-open regime, is that ok? Of course! And the victim, do you have to agree? No, she doesn’t even speak. The “anti-crime” package left no room for the victim in this negotiation (…) But if the negotiation benefits the confessed criminal, it is the martyrdom of the innocent. abusive accusations,plea bargaining to make the so-called ‘voluntary’ of the agreements a mere coup d’état, mere illusory rhetoric to sedate the senses of the unwary (…) Moro was proposing the lethal dose for the Brazilian reality, which fortunately was reduced, in the approved project , to the agreement of non-criminal prosecution (…)”.

Conditions. Minimum penalty. Just cause. Confession. prohibitive reasons.

Mandatory cumulative conditions of the agreement: According to the caputof article 28-A, if it is not a case of dismissal and if the investigated party has formally and circumstantially confessed to committing a criminal offense without violence or serious threat and with a minimum penalty of less than 4 (four) years, the Public Prosecution Service may propose a non-prosecution agreement criminal law, provided that it is necessary and sufficient for reproving and preventing the crime, under the conditions of items I to V, adjusted cumulatively or alternatively. There are four cumulative and obligatory conditions for the conclusion of the agreement: just cause; confession of criminal offense without violence or serious threat, and with a minimum sentence of less than four years; criminal non-prosecution agreement, provided that it is necessary and sufficient for the reprobation and prevention of the crime; that the investigated person agrees to submit to the conditions of items I to V of article 28-A. Absent any of these conditions, the agreement cannot be enforced. It should be noted that in order to determine the minimum penalty for the crime, the causes of increase and decrease applicable to the specific case will be considered (paragraph 1 of article 28-A).

Assessment of the minimum penalty: In order to assess the minimum penalty for the crime, the causes of increase and decrease applicable to the specific case will be considered. In the causes of increase, the factor that least increases must be applied; in the decreasing ones, whichever decreases the most. In the case of an attempt (article 14 of the CP), for example, in which the penalty can be reduced by one to two thirds, for purposes of calculating the viability of the agreement, it is reduced by two thirds.

Just cause as a mandatory condition: The agreement, says the caput of the device now being examined, is viable if it is not a case of shelving. When is it archived? Procedural assumptions are the essential requirements for the procedural legal relationship to be established. Among others, we have: lack of lis pendens, res judicata, illegitimacy, absolute incompetence, suspicion. There are three generic conditions of the action: the legal possibility of the request, the interest to act and the legitimacy. The generic conditions of the action are those requirements that must be present in each and every action. Action-specific conditions are those that are required for only certain actions. Examples of specific conditions are: representation, requisition and posting of tax credit. The investigated fact must be a crime, that is, there must be a legal possibility of the request. Prescription also removes the legal possibility of the request. The lack of interest in taking action occurs when there are not enough evidentiary elements for the filing of the action, that is to say, the existing evidence must point to both the crime and the authorship being probable. The presence of legitimacy is required. In a private action crime, there is active illegitimacy of the MP. If the investigated is under 18 years old, there is passive illegitimacy on the part. One more drawback that we make to criminal transactions: there will be no lack of cases in which the presence of sufficient evidence for the filing of the action will be earned by the reaction of the investigated. Under threat of prosecution, if he confesses, the evidence will be considered present. That way, it will never be known whether the deal was closed out of fear or guilt. the existing evidence must point to both the crime and the authorship being probable. The presence of legitimacy is required. In a private action crime, there is active illegitimacy of the MP. If the investigated is under 18 years old, there is passive illegitimacy on the part. One more drawback that we make to criminal transactions: there will be no lack of cases in which the presence of sufficient evidence for the filing of the action will be earned by the reaction of the investigated. Under threat of prosecution, if he confesses, the evidence will be considered present. That way, it will never be known whether the deal was closed out of fear or guilt. the existing evidence must point to both the crime and the authorship being probable. The presence of legitimacy is required. In a private action crime, there is active illegitimacy of the MP. If the investigated is under 18 years old, there is passive illegitimacy on the part. One more drawback that we make to criminal transactions: there will be no lack of cases in which the presence of sufficient evidence for the filing of the action will be earned by the reaction of the investigated. Under threat of prosecution, if he confesses, the evidence will be considered present. That way, it will never be known whether the deal was closed out of fear or guilt. One more drawback that we make to criminal transactions: there will be no lack of cases in which the presence of sufficient evidence for the filing of the action will be earned by the reaction of the investigated. Under threat of prosecution, if he confesses, the evidence will be considered present. That way, it will never be known whether the deal was closed out of fear or guilt. One more drawback that we make to criminal transactions: there will be no lack of cases in which the presence of sufficient evidence for the filing of the action will be earned by the reaction of the investigated. Under threat of prosecution, if he confesses, the evidence will be considered present. That way, it will never be known whether the deal was closed out of fear or guilt.

Formal and detailed confession: The investigated person, as a mandatory condition of the agreement, must, in the letter of the law, formally and circumstantially confess to the commission of a criminal offense. The confession made at the police stage is worthless for the purposes of agreement. On the other hand, if there is no confession in the inquiry, there is no impediment to its being produced in the agreement. The requirement of confession, which is not required for purposes of suspending the proceeding or settlement in the Special Court, is unconstitutional and illegal. Article 5, item LXIII of the CF provides  that the prisoner will be informed of his rights, including the right to remain silent, being assured the assistance of his family and lawyer. The  Pact of San José of Costa Rica– enacted by Decree n. 678/1992 –, in article 8, letter “g”, establishes as a minimum guarantee of the accused the right not to be forced to testify against himself, nor to plead guilty. In the agreement there is no process, however, in the event of non-compliance, there may be. More unreasonable is the requirement that the confession be circumstantial, since, in this case, there would be a real production of evidence against you, in addition to the confession. If there is a confession in the agreement, and in the event of its termination, the first consideration is that the agreement, as well as the confession, must be safeguarded in a notary, at the exclusive disposal of the parties (see: 1 – subheading The process does not give up the  search unattainable of the truth  in the title  Introducing the judge of the guarantees  of article 3o-B; – 2 subtitle Important interpretation with regard to safeguarding the  title  inquiry Introducing the judge of the guarantees  of article 3o-B; 3 –  subheading  Proposal for an intermediate interpretation  of the heading  Purpose of the investigation documentation  under Article 3-C; 4 – and title Destination of the investigation documentation  of Article 3 – C). In the event that the judge becomes aware of the confession, it must be taken into account that it was obtained with the aim of concluding the agreement, that is, voluntariness does not imply its veracity. It’s just that the investigated may have confessed only to avoid taking the risks of the process, for fear of its consequences. The confession of the non-prosecution agreement, isolated, is worth as much as that effected in the delation: nothing at all. If the confession requirement is recognized as valid, what the law requires is that the investigated person confesses to the crime, that is, that he acknowledges his participation. There is no obligation to inform the name of co-authors, because, in this case, it would be before the institute of the award-winning delation. The solemn act of agreement must be recorded by video system.

Cumulative and/or alternative conditions: Article 28-A, paragraph 2, items I to IV, lists conditions for the formalization of the agreement. These conditions may be established alternatively or cumulatively. They are: I – repair the damage or return the thing to the victim, except when it is impossible to do so; II – voluntarily renounce goods and rights indicated by the Public Prosecutor’s Office as instruments, proceeds or benefits of the crime; III – provide service to the community or public entities for a period corresponding to the minimum penalty for the crime, reduced by one to two thirds, in a place to be indicated by the execution court, pursuant to art . 46 of Decree-Law No. 2.848, of December 7, 1940(Criminal Code); IV – pay a pecuniary benefit, to be stipulated under the terms of art. 45 of Decree-Law No. 2,848, of December 7, 1940 (Criminal Code), to a public entity or entity of social interest, to be indicated by the enforcement court, which has, preferably, the function of protecting legal interests equal to or similar to those apparently injured by the crime; or V – comply, for a specified period, with another condition indicated by the Public Prosecutor’s Office, provided that it is proportionate and compatible with the criminal offense charged. The requirement to fulfill another condition indicated by the Public Prosecutor’s Office is not illegal, as it is not a penalty. If it were a penalty, the rule would apply that there is no penalty without a previous law and, in this case, it would be illegal. It is not a punishment, but a condition. It’s cool as long as obviously is proportionate and compatible with the alleged criminal offence. The term of this requirement may not exceed that set for the provision of service to the community. Since there is no deadline for demanding the MP, item III of article 28-A applies, by analogy.

Prohibitive grounds for the agreement:A non-persecution agreement is prohibited: in cases under the jurisdiction of the special court (when the combined penalties do not exceed two years); if the investigated person is a repeat offender, or if there are probative elements that indicate habitual, repeated or professional criminal conduct, except if past criminal offenses are insignificant; having been the agent benefited in the five years prior to the commission of the offense, in an agreement of non-criminal prosecution, criminal transaction or conditional suspension of the process; in crimes committed within the scope of domestic or family violence, or committed against women for reasons of their female status, in favor of the aggressor. There is recidivism when the agent commits a new crime, after the final judgment that, in the country or abroad, has convicted him of a previous crime (article 63 of CP ). The previous conviction does not prevail if, between the date of fulfillment or extinction of the sentence and the subsequent infraction, a period of time greater than five years has elapsed, counting the trial period of sentence suspension or conditional release, if not revocation ( article 64, item I of CP ). Law no. 11,340/2006 defines the crimes committed in the context of domestic violence.

Jurisprudence

Criminal law in time: The non-criminal prosecution agreement (ANPP) applies to facts that occurred before Law n. 13.964/2019, as long as the complaint is not received ( HC 607.003-SC , Rel. Min. Reynaldo Soares Da Fonseca, Fifth Panel, unanimously, judged on 11/24/2020, DJe 11/27/2020).

Agreement without just cause is void: The conclusion of a criminal transaction agreement does not entail the loss of the object of habeas corpus in which the atypical conduct and absence of just cause is alleged. The judge must carry out control over the legitimacy of the criminal prosecution, so that cases of manifest atypicality of the narrated conduct, extinction of the punishability of the accused or evident impossibility of the complaint due to lack of just cause lead to the non-approval of the proposal ( HC 176.785 , rel . min. Gilmar Mendes, DJE of 5-18-2020).

Subpoena for hearing and atypical fact: It constitutes an illegal constraint to be subpoenaed for the preliminary hearing to propose a criminal transaction, if the fact is atypical ( HC 86.162 , rel. min. Carlos Velloso, 2nd T).

The lawyer. Court hearing. Legality. Devolution. Refusal of homologation.

Participation of the lawyer and need for prior knowledge of the content of the investigation: The agreement of non-criminal prosecution must be formalized in writing. The investigated person, the prosecutor and the lawyer must be present at the act. The prosecutor must arrange for the defender to be aware of the evidence. He must do so a few days in advance, as the examination of the file by the defender makes it possible, among other precautions, to conclude on the existence or not of sufficient evidence of crime and authorship. If there are no indications or proofs, there is no reason to enter into an agreement.

Ratification hearing of the agreement. Legality check:For the ratification of the non-criminal prosecution agreement, a hearing will be held in which the judge must verify its willingness, through the hearing of the investigated person in the presence of his defender, and its legality. Voluntary means that the investigated person makes the agreement spontaneously, without coercion. In examining the legality, in addition to the legality and proportionality of the established conditions, the judge must hear from the prosecutor (who, alternatively, may present a summary memorandum) about the evidence to justify the just cause. Then, he will give the floor to the defender, who can contradict or agree. There is no justification for the judge to examine the evidence alone, without contradiction. Even though he is the judge of guarantees (at this stage the complaint has not yet been received, therefore, the competence for approval of the agreement lies with the judge of guarantees,

Return of the agreement: If the judge considers the conditions set forth in the non-criminal prosecution agreement to be inadequate, insufficient or abusive, the records will be returned to the Public Prosecutor’s Office so that the proposed agreement can be reformulated, with the agreement of the investigated person and his lawyer.

Execution of the agreement: Once the agreement of non-criminal prosecution has been judicially ratified, the judge will return the records to the Public Prosecutor’s Office so that execution can begin before the criminal enforcement court.

Refusal of homologation and measures: The judge may refuse homologation to the proposal that does not meet the legal requirements, or when the adequacy referred to in paragraph 5 of this article has not been carried out. If homologation is refused, the judge will return the records to the Public Prosecutor’s Office for analysis of the need to complement the investigations, file the complaint or file it. Both parties may lodge an appeal in the strict sense of the decision that refuses homologation ( article 81 item XXV ). If the Public Prosecutor’s Office refuses to do so, the person being investigated may request that the case be sent to a higher body for the purpose of reexamining the decision, pursuant to article 28 of this Code .

Noncompliance. Full compliance.

Non-compliance with the agreement and conditional suspension of the process: If the conditions stipulated in the agreement of non-criminal prosecution are not complied with, the Public Prosecution Service must inform the court, for the purpose of its termination and subsequent offer of complaint. In view of the principles of ample defense, the contradictory and due process, the rescission cannot be carried out without being given sight to its defender. Failure to comply with the agreement of non-criminal prosecution by the investigated party may be used by the Public Prosecutor’s Office as a justification for the eventual non-offering of conditional suspension of the process.

Full compliance with the agreement and criminal record: The conclusion and fulfillment of the criminal non-prosecution agreement must not appear on the criminal record certificate, except for the purposes set forth in item III of § 2 of this article (non-conclusion of a new agreement). Once the agreement of non-criminal prosecution has been fully complied with, the competent court will decree the extinction of criminal liability. Pursuant to article  202 of Law no. 7,210/1984  (Criminal Execution Law), once the sentence has been fulfilled or extinguished, the attestations or certificates provided by the police authority or by Justice assistants, as well as any news or reference to the conviction, will not appear on the record, except to instruct the process for the practice of a new criminal offense or other cases provided for by law. 

Referral to the superior instance. Custody hearing. Retroactivity.

Referral to a higher body: In case of refusal by the Public Prosecutor’s Office to propose a non-criminal prosecution agreement, the investigated person may request the referral of the case to a higher body pursuant to article 28 of this Code. At the State Public Prosecutor’s Office, the review of the filing order is the responsibility of the Attorney General. At the Federal level, in charge of the Coordination and Review Chambers ( art. 62, item IV, of LC 75/1993 ), except in cases of original competence of the Attorney General.

Settlement at the Custody Hearing: The non-prosecution agreement can be proposed at the custody hearing, but only if – and after – release is granted. It does not seem viable to offer the agreement to those who are subject to prison, as the prisoner submits to any agreement as long as he regains his freedom. In this way, it would be vicious voluntariness. The presence of the condition of voluntary confession of someone who is under one of the most violent constraints cannot be considered. Prisoner makes any agreement, even confesses, to see the prison command ceased.

Retroactivity. Application to ongoing and completed proceedings: The norm that removes the penalty and replaces it with the fulfillment of certain conditions is a substantive law norm, since it regulates the subjective right of the State to punish (with regard to the differentiation between normal criminal and procedural penalties, see Chapter 12 of the General Theory of our Brief General Theory of Process ). Therefore, the principle of retroactivity applies to it, since it is a more beneficial norm. It is a result of art. 5, item XL of the CF , according to which the criminal law will not retroact, except to benefit the defendant . It also proceeds from article 2, sole paragraph of the CP: “The subsequent law, which in any way favors the agent, applies to previous facts, even if decided by a final condemnatory sentence.” The agreement may, therefore, be requested by the accused or proposed by the prosecutor, both at the investigation stage and in ongoing or completed cases. Being in progress, regardless of the instance. If the agreement is perfected in a completed process, the effectiveness of the condemnatory sentence is suspended until the agreement is fulfilled. If the agreement is terminated, the effects of the judgment return to the level of effectiveness.

Jurisprudence

The judge cannot prevent the remittance to the higher body in the Public Prosecutor’s Office: As this is not a case of manifest inadmissibility of the ANPP, the defense may request the reexamination of its denial, under the terms of art. 28-A, § 14, of the Code of Criminal Procedure (CPP) (2), it is not legitimate, as a rule, for the Judiciary to control the act of refusal, as to the merits, in order to prevent referral to the superior body in the MP . This is because the wording of art. 28-A, § 14, of the CPP determines the initiative of the defense to request its application ( HC 194677/SP, rapporteur Min. Gilmar Mendes, judgment on 5.11.2021 ).

The agreement and police authority

Viability of the agreement by the police authority: As we have already demonstrated in the title Is it really a breakthrough?, in comments to the present device, it does not seem to us that the excess of processes being processed in the Judiciary is the factor that harms the criminal policy. The deficiency of the criminal repressive system – and by repressive system is meant investigative and jurisdictional activity – lies in the investigation, not in the process. The popular phrase the police arrest and justice releasesdoes not reflect reality. It’s wrong because the police don’t arrest. Curiously, there are no statistics in Brazil that clarify the relationship between reported crimes and solved crimes. There are only studies related to the crime of homicide. Even if statistics were available, they would not be accurate, as many crimes are not brought to the attention of the police. Roughly speaking, it is possible to state that ninety percent of crimes remain unsolved. Therefore, if it is to improve the repressive system, it is not to the process that one should turn one’s eyes, but to the investigative bodies. The competence of the MP must be recognized to investigate only those crimes in which the prosecution may be influenced by economic, financial or political pressures. This understanding is not exactly based on questions related to the suitability of police officers, but the lack of hierarchy in the MP, its independence. Police autonomy is little compared to the hierarchy of government bureaucracy, at the apex of which are politicians and very powerful people. Outside of this hypothesis (possibility of economic/financial or political pressure), it must be recognized (including byhabeas corpus of the investigated person, since the investigation carried out by the accuser tends to be more burdensome than that carried out by the investigator, given that the latter does not initiate or participate in the criminal action) incompetence (and this is the correct term, since what is being faced of administrative law) of the Public Ministry. On the circumstance that the investigation by the Public Ministry is more burdensome for the accused, see subheading In the inquiry system, the investigator is not the accuser of the title Duty of impartiality of the police authority and partiality of the investigation, in comments to Article 4. Another measure to be taken with a view to improving criminal repression is investment in technology, mainly in digital technology, information technology and data processing science. Professors and police chiefs Ruchester Marreiros Barbosa and Raphael Zanon da Silva published an interesting article entitled Police chief must enable non-criminal prosecution agreement, published in Revista Conjur, in which they argue that “it is possible to reach the conclusion that it is up to the president of the police investigation (…) to prepare a draft of the agreement of non-criminal prosecution, assuming the format of a protocol of intentions (…). The purpose of adopting the aforementioned protocol by the Chief of Police is to avoid carrying out investigative means in a useless way, which in the end will be discarded, denoting a waste of material and human resources.” It seems that the design developed by Ruchester and Zanon does not violate any legal provision. If any delay in deepening the investigation does not have the power to interfere with its result (if there is no risk of the evidence disappearing) – this delay would materialize if the agreement does not take place or is rescinded -, there is no harm in suspending the diligences of the police investigation. Examining the subject from another angle: since the investigation is the initiative of the MP, can the prosecutor suspend its course and propose a non-prosecution agreement? Now, if this suspension cannot result in any damage to the possible resumption of investigations at a later time, there is no impediment to reaching an agreement, suspending the investigative procedure. Considering that the investigation conducted by the prosecutor has the same objective as the one presided over by the police authority, that is, to obtain sufficient evidentiary elements to file the action, that is to say, with both investigations having the same nature, there is no reason to suspend that of the prosecutor and that of the police authority cannot be interrupted. It makes no sense to concentrate personnel and material on activities that will not be used in the future, when these resources could be directed towards the investigation and solution of more serious crimes. Managing is prioritizing. And, if ninety percent of reported crimes are not solved, there is no other solution but to prioritize investigations that cause more damage to the social and legal order. Removing the MP from the investigation of any offense (for the benefit of the institution) and prioritizing the investigation of more serious offenses, with optimization of investigative technology, these are the paths to efficient criminal repression. if ninety percent of reported crimes are not solved, there is no other solution but to prioritize investigations that cause more damage to the social and legal order. Removing the MP from the investigation of any offense (for the benefit of the institution) and prioritizing the investigation of more serious offenses, with optimization of investigative technology, these are the paths to efficient criminal repression. if ninety percent of reported crimes are not solved, there is no other solution but to prioritize investigations that cause more damage to the social and legal order. Removing the MP from the investigation of any offense (for the benefit of the institution) and prioritizing the investigation of more serious offenses, with optimization of investigative technology, these are the paths to efficient criminal repression.

tax crimes

Tax crimes: The payment extinguishes the tax crime. If there is payment, no agreement is justified, as the offense is absent. But what if the debtor is unable to pay? Is your right to the agreement impaired? It doesn’t. The caput of article 28-A lists the conditions, alternative or cumulative, for the effectiveness of the agreement. Among them is repairing the damage or returning the thing to the victim, except when it is impossible to do so . If the investigated person is unable to pay the due tax, this condition cannot be demanded. It may happen that the investigated person is able to pay part of the tax due. We see no impediment for partial payment to be made, obviously with subsequent deduction of the total amount owed to the creditor.

The insane drug policy

Privileged drug trafficking and non-persecution agreement: In the case of drug trafficking ( article 33, paragraph 1 and its items of Law n. 11.343/2006 ), the penalty can be reduced from one sixth to two thirds, as long as the agent be primary, with a good record, do not engage in criminal activities or be part of a criminal organization ( article 33, paragraph 4 of Law n. 11.343/2006). With the reduction of the sentence, it falls short of four years. Therefore, in this crime, the agreement of non-criminal prosecution is authorized. This possibility can contribute to reducing the capacity of the prison population and save the precocious and stupid devastation of the physical and mental health of thousands of young Brazilians. In 2019, out of a total of 773,000 prisoners in the country, 163,000 were detained for drug trafficking. The highest percentage of prisoners in Brazil is for this crime. In second place is robbery, with 115,000 cases.

Criminal non-prosecution agreement and the caput of article 33 of Law n. 11.343/2006: When the conduct of the investigated falls within the caput of article 33 of Law n. 11.343/2006, the agreement of non-criminal prosecution is impossible. The legislation needs to be amended in order to allow the violator of the caput of article 33 to also benefit from the non-criminal prosecution agreement. Our understanding is that, through the legislative process, the minimum sentence should be reduced to a level below four years. In the headings that follow, we explain the reasons for this understanding.

Considerations by Guilherme Fernandez Silva on the repression of the drug trade: In an interesting article published in Revista Conjur, entitled Considerations on the agreement of non-criminal prosecution in privileged trafficking, Public Prosecutor Guilherme Roedel Fernandez Silva examines the possibility of carrying out a non-persecution agreement in privileged trafficking. He writes that “the 1988 constituent internalized the war on drugs policy, internationally led by the United States, and established that ‘the law will consider non-bailable crimes and not subject to grace or amnesty, the illicit traffic in narcotics and similar drugs, and those defined as hideous’. The legislative and jurisprudential evolution on the subject, marked by the construction in the imaginary of society and of the actors of the Criminal Justice system of the figure of the drug dealer as a violent and dangerous being, labeled the trade of certain narcotic substances as a heinous crime (…). They sent thousands of young people to long periods in prisons, for having sold a joint or a bag of cocaine to someone who voluntarily took an interest in altering his mental state with the use of the substance made illicit by an act of the Executive Branch. (…) It so happens that in 2016, in theHC 118.153 , the STF decided that the so-called privileged traffic is not of a heinous nature. The STJ, then, in the judgment of Theme 600, established that ‘illicit drug trafficking in its privileged form is not a heinous crime’. (…) The argument that supports the thesis that the trafficker in the agglomerate is necessarily part of a criminal organization because he would depend on authorization from the owner of the hill to practice the trade, in addition to revealing odious class prejudice and reinforcing the criminalization of poverty, is false ( …). Unfortunately, with all due respect, it seems that the main obstacle for prosecutors to sign a non-prosecution agreement in privileged trafficking stems from the lack of reflection on the legal interest effectively protected in drug-related crimes and especially on the main reason why drug trafficking some drugs can become extremely violent: criminalization itself!”.

Drugs. Taboo. The fantasy of the enticing drug dealer and the legend of the criminal organization

Drugs, taboos and beliefs: The considerations of the Public Prosecutor of Guilherme Roedel Fernandez Silva are very timely. We are destroying the lives of thousands of young people, piled up in prisons – a situation supported by taboos and unfounded beliefs. Some expressions, advertising and the media have the power to transform them into repulsive expressions. Drug dealer, what are they? Merchants. Taboos generate prohibitions whose reasons are not scientific. They are just beliefs. Marketing cigarettes and alcohol is not prohibited. Selling marijuana and other drugs is. What is the difference between licit and illicit drugs? There is no logical criterion for distinguishing the legality of drugs. The only difference that can be made is that the licit ones are the authorized ones, and the illicit ones are the prohibited ones – which means not to distinguish. Taboo and belief do not make use of logic. Belief is not based on facts, but on unproven versions and the desire to believe. Belief is immune to reason. It does not bring us closer to reality, because, in the words of Friedrich Nietzsche, strong belief only proves its strength, not the truth of what is believed ( Humano, Demasiado Humano. São Paulo: Lafonte, 1918). Humanity has been using drugs since the first hominids, which appeared seven million years ago. The Sumerians recorded the use of opium to encourage happiness in an ideogram dating from 5,000 BC In 600 BC, coca was already known to the people of South America, according to archaeological records. Study contained in the article Psychoactive Substances in Prehistoric Times: Examining the Archaeological Evidenceaccounts for fossil remains of a hallucinogenic cactus, found in a cave in Peru, in the period between 8600 BC and 5600 BC BC to AD 1000 And small stone carvings called ‘mushroom stones’, found in Guatemala and Mexico, suggest that hallucinogenic mushrooms would have been used in religious ceremonies between 500 BC and 900 AD (Time and Mind Journal). Drugs have always been part of human culture. It was at the beginning of the 20th century that the first movements towards its criminalization emerged, motivated by xenophobia, interests of the pharmaceutical industry and Protestant beliefs. Conjur published, in 2017, a series of reports, undertaken by journalist Sérgio Rodas, on the war on drugs and prison overcrowding. There were a total of eight reports. Among others, politicians, university professors, lawyers, jurists and a public prosecutor were heard. Their constant revelations are illuminating. It called our attention the fact that drugs were not always a problem, on the contrary, they were an integral part of the culture. Drugs were used legally around the world until the beginning of the 20th century. Everything starts to change when at that time, for two reasons. The first stemmed from prejudice against immigrants, who used different drugs and competed with Americans for jobs. The second reason, associated with the interests of the pharmaceutical industry, was the Protestant ethic: life without addictions, without intense pleasures, focused on work, as paths to salvation. In 1914, the first federal drug law was enacted in the US. Afterwards, alcohol was prohibited (Sérgio Rodas:Conjur publishes a series of reports on the war on drugs and prison overcrowding . Conjure). The question that must be asked is the following: if homo sapienslived for two hundred thousand years without the prohibition of the use and free circulation of drugs, what again happened to him to justify the interdiction? Drugs are good and they are bad. Moderately used drugs play an important role in promoting the interaction of individuals and groups, in meetings and festivities. Drinking moderately with some friends is a fraternization ritual. Used in excess, all drugs are harmful to physical and mental health. Even medicines taken in excess are harmful to health. They even kill. Some drugs are more harmful than others. Some in the short term; others, in length. There is no evidence that alcohol is any less harmful than marijuana or even cocaine. Everything is a matter of where you use it, how, when and how much. Legal drugs also produce consequences. Alcohol destroys homes and kills on the road.

The enticing drug dealer’s fantasy: It is believed that cigarettes and alcohol do not need to be prohibited. Marijuana, cocaine and other drugs, yes. It’s a matter of faith. The belief is that there are good drugs, distinct from evil drugs. The lack of knowledge on the subject is impressive. Among the laughable beliefs, the legend of the bonbon emaconado stands out.school door. It gets to the point of fantasizing that it is the drug dealer who induces the individual to try the drug; that it is the drug dealer who addicts the individual, and not the individual who, freely, usually under the influence of the group, decides to try the drug, which, enjoying it, he starts to use, moderately or, exceptionally, excessively. It is not the drug that addicts the individual. It is the individual who becomes addicted to the drug. There are many, the vast majority, who are not addicted. To become addicted, there must be a predisposition, either organic (alcoholics, for example) or psychic (caused by psychological disorders). Those who believe that traffickers seduce their victims defend the idea that by arresting traffickers there will be fewer addicts. Nonsense. Nonsense.

The legend of the criminal organization:There is no lack of those who see in every trafficker a member of a criminal organization or an associate in trafficking. They don’t know how the traffic works. It is a system that develops by dividing smaller and smaller portions. Bigger dealers sell to smaller dealers successively. A portion of the drug is bought by someone who, in turn, divides it into so many smaller portions. These smaller portions, sold separately, cost, added their values, more expensive than the purchased portion. The profit is in this difference. The reason why the smaller portion is proportionally more expensive than the larger portion is the risk involved in making multiple sales instead of just one. The greater the number of sales, the greater the risk of being arrested. Therefore, it is the prohibition that values ​​the product and makes trafficking possible. Excluding a few who are at the top of the pyramid, A significant portion of these individuals are addicted and engage in this trade to sustain their addiction. Belonging to a criminal organization is an exception. Years of practicing criminal law have allowed us to conclude that more than ninety-eight percent of drug dealers are not part of any organization. They buy the drug from any seller, or better, from the one that sells the best product at the best price. There is no compromise between them. Those who sell, sell to those who pay, it doesn’t matter who they are. Criminal association or criminal organization, as criminal types, presupposes: association of people, division of tasks, economic objective. There is a bond uniting members for common purposes. Criminal organizations or associations dedicated to trafficking are few. They involve international traffic, when it comes to the top floor. On the bottom, there is the dealer who exercises the distribution exclusively in a certain region. This exclusivity is ensured by some armed members of the association, militias and corrupt police. Militiamen threaten or kill the trafficker who invades the territory of the protected trafficker (and who pays for protection). Corrupt police arrest those unauthorized to traffic in certain areas. This low traffic is that of those traffickers trapped in poor communities. Those who are part of the organization are very few. Basically, the organization is made up of the drug dealer, those who, armed, protect him, the militiamen and corrupt police officers who secure the territory. The leading drug dealer sells, personally or through his close armed cronies, drugs for anyone willing to pay. The buyer normally has no other link with the organization other than the obligation to pay the price, which he does upon receipt of the product. This second dealer, dividing the product into portions, will sell it to anyone else willing to pay. And so on. Where do we want to go? In foolishness. When someone is convicted of drug trafficking in connection with the crime of criminal organization, which is not uncommon, without any demonstration of real associative ties, it is an act of foolishness. And of ignorance. By the way, it should be noted that the argument that if the sale of drugs were decriminalized, the dealer would start to practice violent crimes, such as robbery, for example, it is necessary to take into account that violent dealers are the exception. It is that leader of the hill and those who are closely linked to it. The vast majority of drug sellers are occasional, have their own work, either as employees or as self-employed. This argument is just one more industrialized and distributed by the interests that exist and that constitute the causes of repression.

Drug evils. Uselessness and harmfulness of repression.

Evils that drugs cause:Cigarettes contain 4,700 toxic substances. None of its substances are prohibited. But he is the leading cause of death in the world among those that could be avoided. The National Cancer Institute (INCA) estimates that, for each year of the 2020/2022 triennium, 30,200 new cases of lung cancer are diagnosed in Brazil, and in 70% of cases the reason is smoking. Cigarettes act on the cells that line blood vessels, narrowing and hardening them. Smokers are 30% more likely to suffer a heart attack. As for alcohol, according to data from the World Health Organization, it is responsible for three million deaths a year. Of every twenty deaths, one is related to the consumption of this drug. Bearing in mind that – contrary to other drugs which, when they kill, the victim is the user himself – alcohol kills those who have not ingested it, perhaps it is one of the most pernicious drugs. Marijuana has been used for many years. The number of users is not small. Marijuana is also a drug that offers risks. Although there are studies that allege its innocence (and studies and statistics have something for everyone, especially those who are willing to buy them), thecannabis , when smoked by teenagers, can, even if consumed on a few occasions, trigger a very serious psychotic process. Experienced psychologists and psychiatrists know with more certainty than studies. Its greatest evil is this: it can create conditions to trigger psychoses and schizophrenia, especially if smoked in adolescence. This disastrous consequence occurs with a relatively small percentage of individuals (somewhere between one and three percent of those who smoked during puberty). Addicts who smoke marijuana habitually, every day, develop amotivational syndrome. They don’t make plans, they are lazy, they develop some degree of cognitive impairment. In many of these addicts, the drug plays a therapeutic, sedative role – possibly recommendable. If smoked eventually, by adults, there is virtually no risk or harm to health. It’s a means of interaction. As healthy as drinking a few glasses of wine. Cocaine, in turn, was a legal drug for many years in Brazil and Europe. Sniffed in excess, it can cause cardiorespiratory arrest. When the excess is not that of the moment, but what persists over time, it becomes a powerful stimulus for mental disorders. He has the power to make them worse. Consumed casually and socially, in moderation, like alcohol and marijuana, it is not capable of causing damage to health. It is not a highly addictive drug. Its effects last a few minutes. Not many people are addicted to cocaine. There are many users, few addicts. Other drugs can be quite harmful, especially if used in excess or too often. Abullet (ecstasy), whose active ingredient is MDMA (methylenedioxymethamphetamine), produces excess serotonin, which can cause damage to nerve cells. Sweets (LSD – lysergic acid diethylamine ) can cause psychosis. Crack (a mixture of cocaine hydrochloride and sodium bicarbonate) produces a strong and rapid effect It spreads easily in predisposed individuals due to psychic problems. Another widespread drug in Brazil is loló (a mixture of substances consisting basically of ether, ethyl chloride and chloroform). Like crack, loló is used by some homeless people, considering that both drugs are not expensive.

Uselessness of repression and the harm it causes: Drug repression has proven to be useless. The idea that it is the dealer who runs after the addict, and not the other way around, is part of the collection of nonsense on the subject. Those who believe that the drug dealer entices the individual and introduces him to addiction urgently need to return to the world. Arresting those who sell drugs is useless. It’s doing criminal anti-politics. If one is arrested, there will always be three other free individuals willing to profit from selling drugs. The arrest of one produces the effect of general prevention. But in reverse. The greater the repression, the more the price of the product rises. Profit increases. It is an incentive for new dealers. So are some beliefs. Useless. Minister Luís Roberto Barroso was right when, in his notes to the oral vote of theExtraordinary Appeal No. 635,659, pointed out that “the criminalization of the drug trade does not have the effect of reducing consumption. On the contrary, consumption increases, as the addict, as the perpetrator of a criminal, remains outside the law. But the criminalization of trafficking does produce some results: more crimes (trafficking) and related crimes (corruption, criminal organization), in addition to encouraging militias”. There is no struggle or war when victory is impossible. It’s a fake, fake fight. The more trafficking is fought, the more the drug acquires value. This is not a fight. This is create and then associate. To reduce drug consumption, only one war is possible: the one that fights consumption. Even if repression extinguished trafficking, consumption would persist. Marijuana is grown at home, hallucinogens are obtained by picking mushrooms in any field where there are cattle,
This war is not fought with rifles, but with pedagogy and medical assistance. It concerns health and education. State drug control is where it should never have been, in law enforcement agencies. His place is in the Ministry of Health. Few are those who resist massive propaganda. Regarding the effectiveness of propaganda, there is a quote attributed to Joseph Goebbels: Give me control of the media and I will make any country a herd of pigs.. With massive propaganda, the population is capable of even mooing. There are some current examples of this force: the Prohibition campaign promoted by the Ministry of Transport and the campaign against cigarettes. This is the way. Has it been adopted in other countries? Do we always have to be last? Portugal has already decriminalized the use since 1990. We haven’t even finished judging the issue. Possibly it is the use will bind the jurisprudence.

Harmfulness of criminal repression: The criminal repression of drug trafficking, as it has been done indiscriminately, is not only useless. It is harmful and pernicious. Six reasons. First : repression increases the price of the drug as the difficulties and risks of the trade increase. This price increase makes trafficking more profitable, which serves as an incentive for the emergence of new traffickers. Second : the prisons are full of drug sellers, poor retailers. According to data released by the National Penitentiary Information Survey ( INFOPEN), in June 2016, the crime of drug trafficking appeared in 28% of the criminal incidences for which people deprived of liberty were convicted or awaiting trial in the country. Brazil has more than 773,000 prisoners (year 2020) for a total of less than 400,000 vacancies. Traffickers are young people between the ages of 18 and 26. Behold total prison chaos. With the police stations full, prisoners caught in the act are handcuffed to poles in the streets. These young people are taking the place of really dangerous criminals, those who act with violence against the person. Third :most of these young traffickers are unaware of violence. They are not delinquents given to violence. They are arrested with quantities of drugs that, when sold, are barely enough to support a family for more than a month. The youth’s imprisonment, due to his immaturity, annihilates his future. It is not discussed whether the prison experience can be traumatic, but the severity of the trauma and the intensity of the sequelae. The emotional imbalance that it causes, without treatment, lasts for a lifetime. The prison experience, in addition to representing a waste of youth, creates conditions for the formation of true and new criminals. They’re new blood, raw material for the gangs. The State invests and spends to transform individuals with little or no danger into daring delinquents. Prison spoils who is good and makes worse who is bad. Where there was no grudge, it is planted. Drug dealer, once he is arrested, he becomes a worse individual. Investing in a counterproductive purpose is called wasting public money. “From the enactment of the drug law in 2006 to date, there has been an increase in incarceration for drug-related offenses from 9% to 27%. Approximately 63% of women who are incarcerated were for drug-related offenses. It is worth mentioning: currently, 1 in 2 women and 1 in 4 men arrested in the country are behind bars for drug trafficking (…) In addition to the high cost, there is another phenomenon associated with incarceration: primary youths are arrested together with ferocious bandits and become, in a short time, more dangerous criminals. When they return to the street, they are more threatening to society, and the recidivism rate is above 70%. Finally, there is another problem: as there is no objective criterion to distinguish consumption from trafficking, in the real world, the most common practical consequence, as reported by, among many, Pedro Abramovay and Ilona Szabó, is that ‘rich people with small amounts are users , the poor are drug dealers’ (Minister Luís Roberto Barroso – notes to the oral vote of theExtraordinary Appeal No. 635,659 ). Fourth : It is expensive to keep someone in prison. In Brazil, more than 15 billion a year is spent on prisons. Each prisoner costs BRL 4,000.00 a month, enough to provide basic assistance to six needy families. For repression, large resources are spent. It’s not just about prisons, it’s expenses with police and the judiciary. Judges are instructing and judging futility, when they could be dedicating themselves to resolving really relevant disputes. All this money, which should be directed towards the treatment of addicts and prevention through educational campaigns, is spent on repression, punishment and destruction of human beings. Fifth :when the trafficker, once released, does not become a violent delinquent, having not been enticed by the crime, his opportunities to obtain legal activity are considerably reduced, as he is stigmatized. Sixth :drug repression encourages police corruption and the strengthening and growth of militias. At a certain point in its history, the American people, whose criminal law is a mix of sin, religion, Pentecostal evangelical morals and punishments, including the death penalty, where the State literally murders the convict, passed to believe that all evils had a cause: drunkenness. From 1920 to 1933 Prohibition was in force, prohibiting the production and sale of alcoholic beverages. This period represented the height of American organized crime. Several criminal organizations for the trafficking of alcoholic beverages were formed. Police corruption has reached peak levels. The Cosa Nostra Americanagrew and gained strength. Al Capone ruled Chicago. The interface between society and criminality is carried out by the police contingent. Police are in close and direct contact with criminals. It is natural, expected and inevitable that some police officers end up corrupted. By the way, this is one of the reasons why we understand that only exceptionally can the Public Prosecutor’s Office investigate, because whoever sits at the right hand side of the judge, a place of trust, cannot interface with the crime. Prohibition of drugs makes their trade profitable. And where there is crime and money, irremediably, corruption is present. Another consequence of drug repression is that it constitutes an important source of income for militias, who not only sell drugs but also charge gangs for the monopoly of “territories”. Minister Luís Barroso was happy to state, in his oral vote in plenary, on the occasion of the judgment of extraordinary appeal n. 635,659 , which, in parallel with trafficking, “criminality associated with trafficking flourishes, which includes, above all, the trafficking of weapons used in disputes over territories and in confrontations with the police”.

Uselessness and harmfulness. In summary : In summary, the current drug repression system is useless because reducing the number of drug dealers does not imply a reduction in the number of addicts. It is not traffic that produces consumption. It’s the other way around. And it is harmful because: 1 – It increases the price of the drug, making the business more profitable, which results in more trafficking. 2 – Contributes to the overcrowding of prisons, lacking vacancies for dangerous delinquents. 3 – Turns peaceful people into dangerous delinquents. 4 – Generates useless public spending. 5 – Stigmatizes those who do not get worse. 6 – Encourages police corruption and the strengthening of militias.

Victory over smoking. Decriminalize and educate. Useless and expensive repression.

The victory over smoking: Arresting on the basis of taboo and belief is incivility. What should be done with regard to drug policy is not arresting. Reducing the number of dealers, let this be emphasized in all its terms, does not reduce consumption.It is the uselessness of prison. In recent decades, the federal government has made a massive investment in enlightening propaganda about the evils of smoking. Educational campaign. The result is impressive. Three-quarters of men who smoked quit. The difficulty for addicts to give up smoking is enormous. Withdrawal symptoms, which last more than a month, involve headache, irritability, difficulty concentrating, sleep disturbance, sweating, cold hands, compulsive hunger, mood swings, anxiety and apathy. The desire to go back to smoking is intense in the first few months. In some smokers, it persists for years. Public and pedagogical policies, including taxation policies, proved to be a success. According to the National Cancer Institute, in 1989, 43.3% of men and 27% of women smoked. In 2006, the percentage of smokers in Brazil dropped to 15.7%. According to data from the Ministry of Health , in 2019, only 9.3% of the interviewed population stated that they are still smokers.

Decriminalize and educate:For the drug problem, the best solution is to decriminalize. Educate so that they are not used. Regular sale in pharmacies and with a prescription (with medical supervision). From the taxation of drugs comes the cost of awareness campaigns similar to those carried out with smoking. The world will never give up drugs. There is, in them, a healthy and desirable aspect: social interaction. Indigenous people periodically throw parties on drugs. Brazilians and other peoples too, carnival. A night of libation with friends is worth more to many than months of anxiolytics, antidepressants and mood stabilizers. Some drugs disinhibit people, bringing people closer together, communion and group unity. Until the beginning of the 20th century, humanity used drugs freely, there was no question of prohibiting them. Abuse is to be avoided. Arresting merchants is complete futility. Noting that it was not the legality of trafficking that was under discussion, Minister Luís Roberto Barroso was right on target when he said that for the drug problem “there is only one solution: ending the illegality of drugs and regulating production and distribution”(notes to the oral vote on extraordinary appeal n. 635.659 ). Courageous statement by the Minister.

All drug crackdowns are pointless and expensive:No repression of drug trafficking will reduce its consumption. There is no point in arresting the drug producer or the wholesaler. Other producers and wholesalers replace them. Where there is demand, supply will never cease to exist. If they arrest a hundred marijuana growers in the country, many more will replace them. One, because the demand cannot be segregated in prisons. It is impossible to stop people who want to take drugs. Two, because with each arrest the consequent reduction in supply entails an increase in the risk of trade, which raises the price which, in turn, attracts more individuals to production and trade. Does this understanding imply recognizing that there is no solution to drug trafficking and consumption? No, it doesn’t. There is a solution. However, it is difficult to implement it due to resistance from some sectors. The solution is simple and we already mentioned: pedagogical campaign. It is an impossible, unfeasible and illusory objective to reduce consumption by repressing trafficking. To begin with, trafficking is not the father of consumption, on the contrary. As long as there is demand for drugs there will always be supply. The remedy, therefore, is obvious: reduced consumption. It is not difficult to achieve this goal. The Brazilian government’s anti-smoking campaign reduced the percentage of smokers from 35% in 1989 to 9.3% in 2019. As long as there is demand for drugs there will always be supply. The remedy, therefore, is obvious: reduced consumption. It is not difficult to achieve this goal. The Brazilian government’s anti-smoking campaign reduced the percentage of smokers from 35% in 1989 to 9.3% in 2019. As long as there is demand for drugs there will always be supply. The remedy, therefore, is obvious: reduced consumption. It is not difficult to achieve this goal. The Brazilian government’s anti-smoking campaign reduced the percentage of smokers from 35% in 1989 to 9.3% in 2019.Ministry of Health . Enlightenment campaigns work, they are effective. The conclusion is not ours. It’s the statistics. With the specific purpose of considering whether drug use is a crime or not, this discussion reminds us of a sentence by the professor of criminal law at the Federal University of Rio de Janeiro, Salo de Carvalho, who said: From the skin to the inside I constitute a State sovereign. It also reminds us of Shakespeare, when he wrote that we cry at birth because we arrive at this immense scene of demented people. In extraordinary resource 635659, the STF is about to decide whether or not the possession of drugs for personal consumption constitutes a crime. Most likely, in the judgment of this extraordinary appeal, it will be decided, in judicial default, that possession of drugs for personal use is not a crime. It makes us think of a country that doesn’t exist. It was forbidden for women to wear pants. They could only wear a dress. Selling pants was severely punished. Over time, women were allowed to wear pants. But selling pants remained prohibited. They began to use it without committing any crime. But it continued to be a crime to sell for free use . The mystery was left to decipher the logic of the event. Everyone has the right to drink. But no one can sell to anyone who wants to exercise their right. It is forbidden to sell what you have the right to use.

Workaround

Workaround. Need to change the minimum penalty for trafficking: There are interests, those of great importance, which confronting, we recognize, is of little use. The decriminalization of drugs plays an important role regarding international interests. It is necessary to find a solution, albeit a temporary one, for the mass incarceration of youth. Penalty ranging from five to fifteen years applies to drug trafficking ( article 33 of Law n. 11.343/2006). The criminal non-prosecution agreement is authorized for crimes with a minimum sentence of less than four years. It is necessary to reduce the minimum penalty for drug trafficking in order to make it possible to carry out the non-criminal prosecution agreement. Anyway, if things continue as they are, the chaos installed in the prison system will continue, where, confirming that taboo and belief are based on irrationality, the highest percentage of prisoners are non-violent individuals, and young people.

Prohibition. Motivation and irrationality

Psychological reasons for the ban:In addition to the interest of national and foreign groups in drug prohibition, there are two other explanations for its prohibition and criminal prosecution. One is psychic, one is sociological. Either one or the other does not constitute a logical reason for the ban. Hence, prohibition is simple taboo, belief, something without rational foundation, although fostered by interests. When something that produces pleasure is good and when practiced excessively it is bad, whether for the individual or for the community, there is a tendency to partially prohibit it. Prohibited only partially because when practiced in moderation it is good, when in excess it is bad. Sex. Excessive sex is sex that is unfaithful to marriage (because it puts the family at risk), it is sex with several partners (because it puts health at risk), it is incestuous sex (because it is genetically harmful). But sex is good. It is indispensable. Without it, the species becomes extinct. Being practiced moderately, it is good. Excessively, it’s bad. It needs to be partially banned. In some regions where Islam predominates, women are prohibited from showing their faces (the lips are covered, which are mucous, where the main sources of sexual pleasure are). In the West, women cover their sex and nipples. That is to say, one part is prohibited, another is allowed. The partiality of prohibition finds representation in anatomy. The moderation of pleasure is symbolized by the partial prohibition of bodily exposure. How does this relate to drugs? With drugs it is the same. The need to signal that excess is prohibited is done by allowing the use of certain drugs and prohibiting others. The partial ban is effected through the displacement process. Why is the ban partial? Because drugs are good and also bad. They do well because they favor individual and group integration. They are harmful because, if used in excess, they cause individual and social disorders. To signal that excess is not well liked, some drugs are prohibited, others are authorized. Displacement of the ban on excess. Thus, you get the feeling that the excess is removed. It does not justify legal prohibition insofar as the prohibition of some drugs does not have the power to prevent excess. you get the feeling that the excess is removed. It does not justify legal prohibition insofar as the prohibition of some drugs does not have the power to prevent excess. you get the feeling that the excess is removed. It does not justify legal prohibition insofar as the prohibition of some drugs does not have the power to prevent excess.

Sociological reason:The sociological reason is millions of years old. It is imprinted in phylogenetic memory. When the different species of humans roamed, for millions of years (the hominids appeared approximately seven million years ago), through the savannas, in tribes composed of thirty to forty individuals, in these groupings there were already two types of individuals. Those concerned with the survival of the species, and others with that of the tribe. Those, guardians of the genes (whose diversity ensures the adaptation of the species to new environmental conditions) and, consequently, who understand that everyone is responsible for each one. These, involved with the survival of the tribe and, for this reason, attentive to the needs of the present, which concern mainly hunting and food. In the center, the leader (today represented by the government). The conflict and the search for balance between these forces, managed by the leader, is what has ensured, over the years, the survival of the human being. the species, and reflexively the individual, is moved by opposing forces. If the forces were not in opposition, the necessary balance for adaptation to the environment would not be achieved. In those tribes, the right was made up of the humans who were better at hunting, gathering and fighting with other tribes. The left consisted of the other individuals. The leader was one who excelled in strength, empathy, and intelligence. He possessed the ability to hold the group together, composing these subgroups and forces. Without the right the tribe could die of starvation. Without the left, with its concern for the survival of all, including the weakest, the tribe could become extinct in the line of succession. Both subgroups were, and continue to be, essential, as well as the conflict and composition between them, for the survival of the species. The individual does not belong to one or another group because of his current conditions and situation, but rather where he is internally and constitutionally inserted. This tendency of the individual’s constitution, which precedes birth – although it may be influenced by personal history – is one of the causes that provoke motivational deviation (see subtitleMotivated cognition, cognitive dissonance and conviction in the title The pursuit of impartiality, in comments to Article 3-B). The right handles the present, the left the future. The hunters returned with the game. The leader, not without some disagreement on their part, divided the game among them all. The role of the leader (and the government today) is to share the wealth. He needs to take some of the hunters’ produce, not so much that they weaken (which would harm the game), not so little that most of them starve and die. These two subgroups face and disagree with each other since the first hominid groups appeared. What we call culture war is a manifestation of these two forces that move the species. On one side are the conservatives, the classical liberals, the right. On the other are the progressives, the social liberals, the left. In systems of criminal repression, they appear, when at their extremes, in the form of guarantors (the reference is to excessively guarantors, as the process is indeed a guarantee) and punitivists. In their good manners, they are, on the one hand, the conservatives, on the other, the liberals. The expressions left and right appear in the parliaments of France during the French Revolution. The King’s supporters sat to the right of the speaker. They defended aristocratic interests. It was the conservatives. They wanted everything to go on as under the old regime. Those who sat on the left represented the bourgeoisie. The cultural war that is taking place in the western world today involves different, and opposing, visions of the world. In the early days, the war was over how many pieces of game to play for the hunters and how many for the other members of the tribe. Since then, interests have multiplied. What used to be a fight around a slaughtered animal, today is an endless confrontation around ideas and solutions to problems that afflict humanity. In essence, the object of the discussion remains the same: how to divide wealth. The left understands that greater powers should be granted to the State. The right, on the contrary, defends that the State should have less power and should be as small as possible, being responsible only for the basics, mainly security. For the left, it is up to the State to promote the well-being of the population, including, mainly, health, education and aid to the less favored and minorities (this concern with minorities is a striking demonstration of the care that the left has with genetic diversification, that is, , with the perpetuation of the species). The right, without ceasing to worry about education, understands that each one should have only what he obtained by his own effort. For the left, everyone is responsible for everyone, or, which comes to the same thing, the government is responsible for everyone. To the right, everyone is responsible for himself. The left is in favor of raising taxation. The right is against. The left is for the division of wealth. On the right, by accumulation, leaving the distribution for the future, always future naturally. Homosexuality, abortion, feminism, race, ecology, borders between countries, idea of ​​nation, globalization, free market, health, all these themes find different understandings on the left and on the right. It’s endless struggle. Absolutely necessary. Such is the strength of convictions, on one side or the other, in certain individuals, that we develop the certainty that there is a lot of innateness and little of environment, in opposing ideological positions. The culture war has been greatly intensified in recent years. The reason for this is on social media. In networks, crowds reappear. Crowds exercise ignorance, savagery, extremism, group unity, war. Crowds are primitive tribes in a state of war. On this topic, see titleThe operator of law, justice and the multitude , by us, published in the virtual magazine Jusbrasil. A consequence of this facilitation of global connection is the intensification of the culture war. And the drugs? Drugs are part of this war. For the right, drugs are evil. It disrupts the family, traditions, the status quo , it defies laws, order, it is unlimited pleasure, a bad habit. The right abhors disorder. In disorder, what has been accumulated is at risk. Law and order is needed. The strength of the leader and the security he can guarantee. Yes, the security that the leader can provide is of interest to the right. Your assignment to split, no. Does not matter. This is how man and species move. Well then, that’s the second reason for drug prohibition: the culture war.

There is no place for optimism

Decriminalization. If it happens, it will take:The beginning of the great attack against drug trafficking began in the US during Richard Nixon’s government in the 1970s, when it was decided that the great evil that afflicted that nation was drug consumption. A complex system of repression was created and organized. Subsequently, this system was exported to Latin American countries. It is in the US interest to interact with law enforcement agencies in other countries. The integration of repression – with transfers of resources, materials, technologies, knowledge, information – are the most efficient methods of maintaining control and dominance, that is to say, supremacy. One of the forms of integration of repression is international cooperation, which, misused, without control, lends itself to eliminating competition. The weaker nation must always be attentive to the collaboration offered by the stronger one. Wolves don’t herd sheep. They prefer to eat them. Allying with the propaganda against thebad, there is interest from repression agencies in receiving material and financial resources. Repressors operate by maximizing their own importance. As repression depends on the drug, it, repression, is the first addict. The problem is created and increased, aiming to justify structures, materials, personnel and expenses. The difficulty in adopting a rational solution to the drug issue finds a barrier in these interests, responsible for creating and feeding beliefs and taboos. The media, without ceasing to charge its price, does its part. In times of virtual networks, it has never been so easy to give orders to minds. Disintelligence, superficial conceptions, the reframing of elementary concepts spread quickly and efficiently. Some individuals were smarter when they had nothing on their minds. The world is dumbfounded. The internet has deceived us. It broke all expectations. It was thought that it would provide more knowledge to humanity. The effect was the opposite. Those who didn’t read started reading, and empty minds don’t distinguish truth from lies. They believe in the latter, because it impresses more, it is more interesting. The prohibition of certain drugs has no logic and is based on belief. The belief is nourished by the following ingredients: the interest of the pharmaceutical industry, of the repression agencies, imperialism, the Protestant ethic, the psychic displacement of the prohibition of excess, the conservative ideology, propaganda and the lack of knowledge of the population. There is also, as a final condiment, the interest of the most interested party, the dealer himself: without prohibition, he would have no profit or source of income. It is a heavy, strong feast, from which it follows that the imbroglio of drugs will not be resolved any time soon. And the genocide will persist for years.

Reduction of the repressive power of the police:There is another aspect, in particular, why the decriminalization of drugs is not of interest to some sectors of bodies directly related to criminal repression: it would reduce their power to arrest. To convict a drug trafficker, two elements of proof are sufficient – ​​according to jurisprudence: the drug and the testimony of two, at most three, police officers (witnesses to the arrest in flagrante delicto). Now, with this evidence, it is possible for dishonest police officers, who aim to circumvent the criminal law, to arrest practically anyone. It is enough to send a portion of drugs to the forensics, enough to characterize the traffic, which can be easily obtained by subtracting another seizure, and two, or three, police officers willing to lie. They can be civil, federal, military or federal highway police.

Fim

Contribua com seu comentário

O seu endereço de e-mail não será publicado. Campos obrigatórios são marcados com *

Summary