POSSESSION OF FIREARM AND DRUG TRAFFICKING: APPLICATION OF THE AGGRAVATING CIRCUMSTANCE OR CONFIGURATION OF AN AUTONOMOUS CRIME

Abstract

The carrying of a firearm in the context of illicit drug trafficking constitutes a relevant issue in Brazilian Criminal Law, particularly in light of the controversies surrounding its legal classification. The central discussion concerns whether such conduct should be recognized as a sentencing enhancement for drug trafficking or as an autonomous offense in material concurrence. This study aims to analyze the legal classification of the illegal carrying of a firearm associated with illicit drug trafficking, examining the constituent elements of the offenses, the application of the principles of absorption (consunção) and the prohibition of non bis in idem, as well as the understanding of the higher courts on the matter. The specific objectives are to analyze whether the illegal carrying of a firearm in the context of drug trafficking should be considered a sentencing enhancement or an autonomous offense in material concurrence. To this end, the study seeks to examine the constituent elements of the crime of drug trafficking established by Law No. 11,343/2006, as well as the sentencing enhancement provided for in Article 40, IV. Furthermore, it intends to study the legal classification of the illegal carrying of a firearm under Law No. 10,826/2003, investigate the application of the principles of absorption and the prohibition of non bis in idem, and evaluate the prevailing understanding of the higher courts regarding the issue. The research adopts a qualitative, descriptive, and bibliographic approach, based on legal doctrine, legislation, case law, and scientific publications. It is concluded that the lack of interpretative uniformity regarding the subject contributes to legal uncertainty and divergences in the application of criminal sanctions.