O RE 635.659 e a (in)eficácia jurídica da descriminalização da maconha: uma análise crítica dos votos dos ministros do STF

Abstract

This paper aims to critically analyze the judgment of the Brazilian Supreme Federal Court (STF) in Extraordinary Appeal No. 635.659, which addressed the decriminalization of drug possession for personal use, focusing particularly on cannabis. The study examines the constitutional limits of judicial intervention, especially regarding the exclusive competence of the National Congress to legislate on criminal matters, as established in Article 22, item I, of the Federal Constitution. The research discusses the tension between the protection of fundamental rights such as freedom, privacy, and intimacy and the risks of judicial overreach into matters constitutionally reserved for the Legislative Branch, leading to the excessive judicialization of public policy. The analysis considers the votes of Justices Gilmar Mendes (rapporteur), Luís Fux, and Dias Toffoli, which reflect different legal and political perspectives on the social, criminal, and institutional impacts of the decision. The methodology is qualitative, with an exploratory and descriptive approach, based on bibliographic research, and case law review. The conclusion reached is that, although the STF acted to safeguard fundamental rights, the decision exceeded the boundaries of judicial function by encroaching on legislative powers, particularly in shaping criminal policy. This raises concerns about legal certainty, democratic legitimacy, and the future direction of drug policy in Brazil.