A descriminalização do porte de maconha e direitos fundamentais: uma análise jurídica à luz do Princípio da Dignidade da Pessoa Humana

Abstract

This study aims to analyze the decriminalization of marijuana possession for personal use in light of the principle of human dignity and fundamental rights. It seeks to understand to what extent the absence of criminal punishment for drug users relates to the protection of human dignity, established as a foundation of the Federative Republic of Brazil by the 1988 Federal Constitution. To this end, a qualitative, exploratory, and documentary methodology was employed, based on bibliographical, legislative, and jurisprudential analysis, with particular emphasis on Extraordinary Appeal No. 635.659/SP, in which the Supreme Federal Court (STF) declared the unconstitutionality of Article 28 of Law No. 11.343/2006 regarding marijuana possession for personal use. The research covers the historical evolution of drug legislation in Brazil, the consolidation of the principle of human dignity in contemporary constitutionalism, and the analysis of the ministers’ votes, both for and against decriminalization. The findings indicate that the debate on drug possession for personal use involves a collision between equally relevant constitutional values, such as individual autonomy, privacy, public health protection, and collective well-being. The STF reached a majority for the restricted decriminalization of marijuana, establishing a relative presumption of up to 40 grams or six female plants, while maintaining the conduct as an administrative offense. The decision reaffirms the centrality of human dignity within the Brazilian legal system and encourages reflections on the coherence of criminalizing other substances, as well as on the need for more proportional, egalitarian, and humanistic criminal policies.