A violação de princípios constitucionais em face da inobservância da defesa preliminar prevista do artigo 55 da Lei de drogas-n°11.343 de 2006.

Abstract

The Drug Law, N.º 11.343/2006, in Article 55 provides that when the Public Ministry offers a complaint, the taxpayer can immediately present the preliminary defense, argue preliminaries, present evidence, list witnesses and present exceptions, if necessary. The problem occurs when the magistrate fails to observe this procedural act expressly provided for and the courts and jurisprudence decide to validate this procedural unusuality. The fact that the judiciary itself validates the violation of rules which they are bound to comply with causes several problems not only in the criminal procedural field of the legal system, such as the violation of constitutional rights and guarantees, such as due process, contradictory and broad defense but it also generates the opening of criminal cases that should not have been formed and arrests that should not have been carried out, encouraging over-incarceration. When constitutional violations occur in the procedural field, it is necessary to apply sanctions in a kind of system of judicial selfregulation, implemented through the nullities institute, which aims to remedy defective acts that generate losses and are atypical, occurred during criminal prosecution.