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Back to Decriminalization of Narcotics

I.  Introduction

Brazil has not decriminalized narcotics.  However, with the promulgation of Law No. 11,343 on August 23, 2006,[1] Brazil changed its approach to the penalization of those caught with drugs for alleged personal use.  Although still a crime, instead of imposing prison time as a form of punishment, the law opted for alternative punishments.  

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II.  Law No. 11,343 of August 23, 2006

According to article 28 of Law No. 11,343, whoever acquires, keeps, stores, transports, or carries for personal use drugs without authorization or in violation of a legal or regulatory determination, is subject to the following punishments:

I – receive a warning about the effects of drugs;

II – render community services; [or] 

III – . . . attend a program or educational course.[2]

The same punishment applies to those who, for their own use, plant, cultivate, or harvest crops for the preparation of a small amount of substance or product capable of causing physical or psychological dependence.[3]  To determine whether the drug was intended for personal use, the judge must consider the nature and quantity of the substance seized, the place and the conditions under which the actions developed, social and personal circumstances, and the person’s conduct and prior behavior.[4]

The law continues to criminalize and punish with five to fifteen years in prison and a fine those persons who import, export, ship, prepare, produce, manufacture, purchase, sell, display for sale, offer, store, transport, bring, keep, prescribe, administer, deliver, or provide drugs for use, although free, without authorization or in violation of legal or regulatory requirements.[5]

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III.  Extraordinary Appeal

On February 22, 2011, an extraordinary appeal (recurso extraordinário)[6] was filed with the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) questioning the compatibility of article 28 of Law 11,343, which criminalizes the possession of drugs for personal use, with the constitutional principles of intimacy and privacy.[7]  The case is still pending before the STF. 

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IV.  Proposed Legislation

A bill was introduced in the Chamber of Deputies on July 14, 2010, to add and amend provisions of Law No. 11,343, of August 23, 2006.  The purpose of the bill is to discuss the National Drug Policy System (Sistema Nacional de Políticas sobre Drogas), to provide for the mandatory classification of drugs, to introduce aggravating circumstances to the crimes set forth in articles 33 through 37, to define the conditions of attention to drug users or drug addicts, and to deal with the funding of policies on drugs.[8]  On May 28, 2013, after the bill was discussed and voted on, it was forwarded to the Federal Senate where it is currently under consideration.[9]

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Prepared by Eduardo Soares
Senior Foreign Law Specialist
July 2016


[1] Lei No. 11.343, de 23 de Agosto de 2006, http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/lei/ l11343.htm, archived at https://perma.cc/TP4Y-HHTJ.  Law No. 11,343 defines a “drugs” as substances or products that can cause addiction, as specified by law or in lists periodically updated by the federal executive branch of the government.  Id. art. 1 (sole para.).

[2] Id. art. 28.  The penalties provided for in sections II and III of article 28 must be applied for a maximum of five months.  Id. art. 28(§ 3).  In the case of recidivism, the penalties provided for in sections II and III of article 28 must be applied for a maximum of ten months.  Id. art. 28(§ 4).

[3] Id. art. 28(§ 1).

[4] Id. art. 28(§ 2).

[5] Id. art. 33.

[6] According to article 102(III) of the Brazilian Constitution, the STF has jurisdiction to decide extraordinary appeals in cases decided in the sole or last instances, when the appealed decision (a) is contrary to a provision of the Constitution, (b) declares a treaty or a federal law unconstitutional, (c) upholds a law or act of local government challenged as an infringement of the Constitution, or (d) upholds a local law challenged as contrary to federal law.Constituição Federal, http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm, archived at https://perma.cc/G36G-5DBR.

[7] STF, Recurso Extraordinário No. 635569, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp? incidente=4034145, archived at https://perma.cc/CPU2-Q7TG.  Article 5(X) of the Constitution determines that personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof.  Constituição Federal art. 5(X).

[9] Projeto de Lei da Câmara No. 37, de 2013, Senado Federal, http://www25.senado.leg.br/web/atividade/ materias/-/materia/113035, archived at https://perma.cc/DBW2-F3MR.