Understand the crime of association for drug trafficking
The association for drug trafficking is, in fact, an association for the practice of the conduct defined in article 33 (both in the caput and in paragraph 1), as well as in article 34 of the Drug Law, which deals with machinery, instruments and other objects intended for the manufacture of drugs, for example.
Let’s see what the legal text says:
Art. 35. Associate two or more persons for the purpose of practicing, repeatedly or not, any of the crimes foreseen in arts. 33, caput and § 1o, and 34 of this Law:
Penalty – imprisonment, from 3 (three) to 10 (ten) years, and payment of 700 (seven hundred) to 1,200 (one thousand and two hundred) fine days.
Single paragraph. In the same penalties of the heading of this article incurs who associates to the reiterated practice of the crime defined in art. 36 of this Law.
It is therefore perceived that this is a crime that closely resembles that of criminal association typified in article 288 of the Criminal Code, because the two are plurisubjective crimes, that is, they require more than one agent for its configuration.
To be more specific, the two types of criminality require a union of persons aiming at delinquency, and the association of the Drug Law has a specific purpose (the practice of crimes in articles 33 and 34); while the association of article 288 of the CP refers to crimes in general.
It is also interesting to note that, with the criminal type creation of article 35 of the Drug Law, article 8 of the Law of the Hediondos Crimes was impaired, since this article establishes that the penalty of the crime of criminal association of article 288 will be from 03 to 06 years of imprisonment when the purpose is to commit the crime of drug trafficking.
Characteristics of the association for drug trafficking
With regard to Article 35, it is possible to cite as its characteristics:
a) minimum involvement of two people: as stated, we are facing a plurisubjective crime. Unlike the crime of criminal association, of article 288 of the CP (which requires a minimum of three persons), only two persons are required for their configuration;
b) specific purpose: in the present case, the association is not for the practice of any crime, it is necessary the intention to commit any of the crimes foreseen in arts. 33, caput and § 1, and 34 of the Drug Law.
c) unnecessary delinquency reiteration: the legal text states that the associates want to commit crimes repeatedly or not. Thus, contrary to what happens in the crime of criminal association of the CP, it is not necessary the intention of repetition of the crime.
Stable and lasting association
It should be pointed out that, since the criminal type requires an “association” to the practice of drug trafficking, doctrine and majority jurisprudence, although article 35 does not require the purpose of criminal reiteration, they consider that a prior adjustment is necessary between the parties, an asso- ciative animus, making the competition of agents merely occasional does not characterize said crime.
In this sense, the predominant understanding is in the sense that this association must have the objective of being stable and durable for the configuration of article 35, unless otherwise it will be a mere contest of agents.
It is worth mentioning that the STJ already has a thesis signed in this sense, namely that “For the characterization of the crime of association for trafficking is essential to associate with stability and permanence,” as seen in the judgments given in HC 235247 / SP; in HC 270837 / SP; in HC 286219 / PE; in HC 271723 / MG; in HC 260330 / SP; in HC 137535 / RJ; in HC 248844 / GO; and HC 239965 / RJ.
With regard to the consummation of this crime, the analysis of the type shows that it is a formal crime, which is consequently consumed by the mere union of those involved, that is, when they associate themselves (in a stable and lasting way for the practice of drug trafficking).
Thus, even if they are detained before the practice of the first drug trafficking, they will already be involved in the criminal type.
It is important to note that the STJ also has a solidified thesis on this issue, that is, that “For the configuration of the crime of association for drug trafficking, provided in art. 35 of Law no. 11.343 / 2006, the seizure of drugs in the direct possession of the agent “, according to the Judgments given in HC 441712 / SP, is irrelevant; in RHC 93498 / SC; in HC 432738 / PR; in HC 137535 / RJ; and HC 148480 / BA.
In turn, there will be material competition with the crime of trafficking when, after the association, they effectively come to commit any of the crimes of arts. 33, caput and § 1, and 34 of the Law.
As for the attempt, I understand that it is not possible, mainly because it is a formal crime, so that the agreement of wills between the members will consummate the crime; otherwise, the fact will be considered atypical.
Penalty and penal action
The penalty provided is from 03 to 10 years imprisonment, in addition to 700 to 1,200 days-fine.
Moreover, according to article 44 of the Law on Drugs, we are faced with an unsafed and unsustainable crime of sursis, amnesty, grace or pardon.
Regarding the possibility of replacing the custodial sentence with a restriction of law, in spite of the fact that the specific law states that it is not possible, the STF declared the unconstitutionality of that part of article 44 when judging HC 97.256 / RS, in September 2010.
Thus, if the sentence set in the sentence does not exceed 4 years, it will be possible to substitute a restrictive sentence, in accordance with art. 44, I, of the Criminal Code, provided that the circumstances of the crime indicate that the measure is sufficient for the prevention and repression of crime (article 44, section III, of the CP).
With regard to conditional release, the provisions of article 44, sole paragraph, of Law 11.343 / 06, that is to say, provided that two thirds of the sentence is fulfilled (and provided they are not specific repeat offenders).
The Superior Court of Justice has already ruled that, although it does not have a hideous nature, the rule in article 44, sole paragraph, of the Drug Law remains intact:
Regardless of whether it is heinous or not, there is a law defining a more rigorous lapse to obtain conditional release in conviction for the crime of association to trafficking. It is necessary to fulfill 2/3 (two thirds) of the sentence, in accordance with what is established in art. 44 of Law no. 11,343 / 2006, not applying the provisions of art. 83, incs. I and II of the Penal Code. (STJ – AgRg no Resp 1,469,504 / RJ, Rel. Min. Reynaldo Soares da Fonseca, judged on 01/09/2015, DJe 08/09/2015).
It should be mentioned that, after the advent of Law no. 11.464 / 2007, which no longer prohibits provisional release for heinous crimes, there is an understanding that the concession is also applicable to trafficking, even though the special law says otherwise in relation to such an offense.
In addition, since 2012, in the judgment of HC 104,339-SP, the STJ has declared the expression “and provisional freedom”, contained in the caput of Article 44 of Law 11,343 / 2006, mainly because it is “incompatible with the constitutional principle of presumption of innocence and due process, among other principles. “
Lastly, with regard to the heinousness of crime, both the Superior Court of Justice and the Federal Supreme Court have understood that the crime of association for trafficking is not treated as heinous for not being mentioned in art. 1, sole paragraph, of Law no. 8,072 / 90.
Thus those convicted of this crime will be entitled to progression of regime according to the common rules of the Criminal Code, that is, 1/6 and not 2/5 or 3/5, as established by the Law of Heinous Crimes.
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