A lacuna normativa na Lei de Drogas e a insegurança jurídica na distinção entre uso pessoal e tráfico ilícito.

Abstract

This monograph aims to analyze the normative gap within Brazilian Law nº 11.343/2006, particularly regarding the absence of objective criteria for distinguishing drug users from drug traffickers, and its impacts on the application of criminal law. The research is based on the problem of how this normative indeterminacy compromises legal certainty and influences judicial decision-making in classifying such conduct. To this end, the study adopts a deductive method, with a qualitative approach, based on bibliographic and documentary research, supported by specialized legal doctrine, legislation, and jurisprudence from higher courts. Initially, the historical evolution of drug policy in Brazil is examined, highlighting the consolidation of a predominantly repressive model. Subsequently, the legal provisions of the Drug Law are analyzed, emphasizing the lack of objective parameters and the resulting expansion of judicial discretion. The study then addresses the distinction between personal use and drug trafficking, demonstrating the insufficiency of current criteria, especially in light of empirical data on consumption patterns. It is also worth highlighting the analysis of recent case law from the Supreme Federal Court and the Superior Court of Justice, which has contributed to the development of more objective interpretative parameters. Finally, it is concluded that the absence of clear normative criteria generates legal uncertainty, allows unequal interpretations, and reinforces penal selectivity, indicating the need for legislative revision aimed at establishing objective and proportionate standards consistent with constitutional principles.