Disputes in the Brazilian’s Judiciary Field: The Criminal Chambers Judgments of the Court of Justice of Rio Grande Do Sul State in Appeals on Privileged Drug Trafficking

This paper aims to understand how the Criminal Chambers of the Court of Justice of the State of Rio Grande do Sul (TJRS) recognize the provision set forth in Art. 33, §4, of Law No. 11,343/06, which constitutes the conduct of privileged drug trafficking and provides for a possibility of reducing sentences by one sixth to two thirds. To this end, 420 rulings relating to appeals filed with the TJRS, relating to privileged jurisdictional provision and judged by the Chambers during 2019, were analyzed. The methodology adopted for the assessment of the data was quantitative, based on the analysis of twenty-two variables applied in each of the judgments. Regarding the hypothesis of this study, it is believed that the Chambers follow the same pattern of repeated incriminations by first instance judges, who, based on actions guided by punitivism to the detriment of the guarantee of due process, do not recognize the privileged form, even when the defendants meet the requirements demanded by law. The results demonstrate that, although the legislation establishes four conditions for the recognition of drug trafficking in the privileged form – being a first-time offender, with a good background, not involved in criminal activities and not being a member of a criminal organization – the judges of the First and Second Chambers used twenty-five extra-legal reasons to deny the benefit in their decisions, while the Third Chamber used only two. This demonstrates that there are indeed controversies in the Brazilian Judiciary and highlights the legal uncertainty faced by people convicted of drug trafficking, in which luck, and not compliance with due legal process, can determine the outcome of their appeals.