The role of court of appeals judges in the state of Rio Grande do Sul in incidents for privileged trafficking

Abstract

This work aims to understand the way in which judges in the state of Rio Grande do Sul apply the benefit represented in art. 33, §4th, of Law No. 11,343/06, which constitutes the conduct of privileged trafficking and provides for the possibility of a reduction of one-sixth to two-thirds of the sentence. To this end, an analysis was carried out of 420 rulings referring to appeals filed at the Court of Justice of the State of Rio Grande do Sul, filed with the aim of applying the privilege and judged by the first three criminal chambers, during the year 2019. The methodology adopted to evaluate the data was quantitative, based on the analysis of several variables. Regarding the research problem, the question is whether second-degree judges are acting in a punitive manner and denying the privileger’s right to benefit, as first-degree judges do, or whether, in the second degree, there is a rupture in these actions of the magistrates. As a result, it was found that although the legislation determines four conditions for the recognition of privileged trafficking – being a first-time offender, with a good record, not involved in criminal activities nor a member of a criminal organization – the judges of the first and second chambers made use of 21 extralegal reasons to deny the benefit to the privileged party, while the Third Party used only two. This demonstrates the distinction between the chambers’ understanding of how the law should be applied, highlighting internal disputes in the field of Judiciary and the legal uncertainty faced by those accused of privileged trafficking.