A (in)adequação do art. 28 da lei nº 11.343 aos princípios penais da ofensividade e da proporcionalidade

Abstract

The power of criminal tutelage of the State is the most extreme and offensive form that sovereign entities have to ensure social order. Through the use of jus puniendi the State possess the express authorization to limit or offend individual rights, with the aim of ensuring or guaranteeing rights of others. It turns out that to ensure absence of abuse in the use of this invasive power by the State, based on the concept of a Democratic State of Law, it is necessary the adequacy of penal law to limiting principles of the state punitive power. Among the main limiting principles of the punitive power of the State, are the underlying principles of offensiveness and proportionality. Currently in the Brazilian State, the conduct of possessing prohibited substances for personal use is protected under criminal law, through art. 28 of Law nº 11.343 In this context, this paper is concerned with analyzing the (in) adequacy of this rule to the principles of offensiveness and proportionality, in order to determine whether this use of jus puniendi can be considered legitimate or injures the concept of democratic rule of law. Using the doctrinal and jurisprudential literature were determined objective criteria, which, through the deductive method, were used to analyze the adequacy principled in criminal law. We conclude that the norm is inadequate because the criminalized conduct does not offend the safeguarded legal asset and its criminal treatment is disproportionate.