Descriminalização ou despenalização? um estudo acerca do Artigo 28 da Lei n° 11.343/2006 e do Recurso Extraordinário (RE) 635.659

Abstract

This study addresses the complex issue of decriminalization or depenalization of drug possession for personal use, focusing on Article 28 of Law No. 11.343/2006, a critical matter in Brazilian Criminal Law. The research aims to clarify the legal nature of drug possession under current legislation, analyzing whether it constitutes decriminalization, which would remove the conduct from the penal spectrum, or depenalization, maintaining its illicit status but with milder penalties. The study explores the legal, social, and public health impacts of this legislation, reflecting on the legal treatment given to drug users and its implications for the criminal justice system and society. It concludes that Article 28 represents a depenalization, keeping drug possession for personal use within the penal scope but replacing imprisonment with educational and preventive sanctions. This work contributes to the legal and social debate on the appropriate handling of drug possession for personal use in Brazil.