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Flagrant of drug use can be plowed by police authority only in the absence of a judge

07/09/2020

The Brazilian Federal Supreme Court (STF) Plenary decided that the police authority may issue a Term Circumstantiated of Occurrence (TCO) and request examinations and inspections in case of flagrant use or possession of narcotics for personal consumption, provided that the judicial authority is absent. By majority vote, the collegiate dismissed the Direct Unconstitutionality Action (ADI) 3807, filed by the Association of Police Officers of Brazil (Adepol-Brasil) against the provisions of the Drugs Law (Law 11.343/2006).

Decriminalisation

In the virtual session closed on 26 June, the majority of Justices followed the vote of the rapporteur, Justice Cármen Lúcia, who explained that, according to paragraph 3 of Article 48 of the Drugs Law, the police authority, in regard to those who acquire, store or transport drugs for personal consumption, can plough the flagrant and take the measures provided for by law "if the judicial authority is absent". According to the rapporteur, it is presumed that, present the judicial authority, it is up to it to adopt the procedures, even as regards the drafting of the detailed term. In any case, the arrest of the author is forbidden.

SP/AS//CF - CG/FB/GL

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