Análise conceitual do tráfico privilegiado e sua releitura à luz dos princípios constitucionais.

Abstract

This paper discusses issues related to the illegal drug trafficking, notably to the cause of reduced penalty which is commonly known as privileged trafficking. In this line of reasoning, with the purpose to comprehend the reach and the limits of the aforementioned cause of reduced penalty contemplated in the new Drug Law, its rereading was promoted from principles and constitutional values. This study was carried out based on the research technique of indirect documentation because it predominantly covers bibliographical and documental research. Besides the legal and formal basis corresponding to the Federal Constitution of 1988, the Law no. 11.343/2006 and the Criminal Code in force in the Brazilian legal system, concrete cases judged by courts and conceptions of teachers and scholars were utilized. It was evidenced that for the correct recognition of the referred privileged trafficking, all the requirements stipulated by law should be present cumulatively, which are being the primary agent, having good antecedents, not being involved in criminal activities nor being part of a criminal organization. The Supreme Court of Justice has been repeatedly deciding for the possibility that police inquiries and legal actions in course, in addition to infringements practiced when the agent was underage, serve to drive away the cause of reducing the penalty that is being discussed, as they believe such records demonstrate the involvement in criminal activities. Nonetheless, the Supreme Courts did not establish criteria and minimum parameters so that it could be analyzed if, indeed, such registers on which it is not verified a damning judgment rendered final are sufficient to the departure of the cause of the reduced penalty. For this purpose, it is necessary to consider the aspects which orientate the mentioned discussion, bearing in mind the principles of presumption of innocence, of the individualization of penalty, of proportionality and of the instrumentality of criminal procedure.