PRINCIPLE OF INSIGNIFICANCE: POSSIBILITY OF RE-OFFENSIVE OFFENCES IN CRIMES OF ILLEGAL POSSESSION OF DRUGS FOR PERSONAL CONSUMPTION

Abstract

This study analyzes the possibility of applying the principle of insignificance to the crime of possession of drugs for personal consumption, provided for in article 28 of Law 11.343/2006. It conceptualizes the principle of insignificance, which excludes the material typicality of conduct that is irrelevant to criminal law, and is traditionally dismissed in these cases on the grounds that it is a crime of abstract danger, with a focus on protecting public health. The article will also deal with specific Supreme Court decisions that indicate the possibility of relativizing this interpretation, especially when the requirements of minimal offensiveness of the conduct, absence of social dangerousness, low degree of reprehensibility and inexpressibility of the legal damage are present. The study will also highlight the judgment of Extraordinary Appeal 635.659 (Topic 506) by the STF, which deals with the decriminalization of the possession of up to 40g of cannabis, highlighting the precedents for the discussion on the proportionality of punishment and respect for fundamental rights. And he will argue that, although there is still no consensus, the application of the principle of insignificance may represent a step forward in the fairer and more appropriate criminal treatment of conduct of low social harm.