A (in)constitucionalidade da tipificação do delito relativo à criminalização dos usuários de drogas no Brasil.

Abstract

This monograph focuses on the theme “the constitutionality of the criminalization of drug users in Brazil”. Based on the hermeneutic, critic and reflective method, it is intended to understand juridical fundamentals which involve the present issue, in accordance with the contemporaneity, among political and social factors. Thus, this paper will be held through bibliographical research, readings and it will take into account the theories of several authors to refute the fundamentals which rule and guide the constitutional penal law, in order to demonstrate to those who validate the constitutionality of the criminalization of the drug users, and on the contrary, those who support the unconstitutionality. In order to accomplish it, in the first chapter it will be discussed the constitutionality of the Penal Law, the upheld principles, the limiting fundamentals of the punishing power in a Democratic State of Law and also the control of constitutionality exerted under the infra-constitutional norms. From this perspective, in the second chapter, the constitutive elements of the penal law will be analyzed, approaching the crime and the protected juridical commodity themselves; the concept of abstract danger crime; as well as the general theory of crime and its constitutive elements. Finally, in the third chapter, starting from the historical resumption of the legislation relating to drugs and coming to the current typification of the drug users in Brazil, it will be established whether the typification of the drug users’ criminalization is in accordance with the contemporaneous constitutional penal norms. Contrasting, under the constitutive article of this illicit issue, the juridical elements to the constitutionality and unconstitutionality, which were shown in the previous chapters.