BETWEEN THE CONSTITUTIONALITY AND UNCONSTITUTIONALITY OF POSSESSION OF MARIJUANA FOR PERSONAL USE: A STUDY ON ITS LEGAL NATURE

Abstract

This article examines the constitutionality of criminalizing marijuana possession for personal use in the Brazilian legal system, focusing on article 28 of Law No. 11,343/2006 and on the development of the judgment in Extraordinary Appeal No. 635,659/SP before the Federal Supreme Court. The research problem is to verify whether maintaining the criminal nature of the conduct is compatible with the Federal Constitution of 1988 or whether it violates fundamental rights, especially human dignity, individual autonomy, intimacy, and privacy. The objective is to analyze the dogmatic, constitutional, and jurisprudential grounds supporting both the constitutionality and unconstitutionality theses. Methodologically, this is a qualitative, bibliographical, and documentary study, using the deductive method and an analytical-interpretative procedure, based on criminal and constitutional doctrine, current legislation, and the votes presented in Extraordinary Appeal No. 635,659/SP. The findings indicate that the legal debate is not limited to drug policy, but reaches the very limits of criminal intervention and constitutional adjudication. It is concluded that the issue involves a structural tension between individual freedom and the protection of public health, as well as an important controversy regarding the legal nature of article 28, situated between legislative depenalization and the jurisprudential tendency toward decriminalization of marijuana possession for personal use.