THE DRUG LAW AND THE INVIOLABILITY OF THE DOMICILE IN SITUATIONS OF FLAGRANTING: ANALYSIS OF CASES ASSISTED BY THE PUBLIC DEFENDER IN THE DISTRICT OF MONTENEGRO/RS IN 2021

análise de casos assistidos pela Defensoria Pública na comarca de Montenegro/RS em 2021

Abstract

The domicile is inviolable according to the Federal Constitution and the crime of article 33 of Law 11.343/06 is a reality throughout the country. Being considered a permanent crime, the legality of the act that violates the domicile in trafficking offenses in the District of Montenegro/RS is discussed. This research aims to analyze the decisions rendered in the aforementioned district regarding the claim of nullity for violation of the domicile in cases attended by the Public Defender's Office in the second half of 2021 in comparison with the jurisprudence established by the STJ in REsp 1,865,363. The research has a qualitative, descriptive and documentary character, a methodology by which 35 drug trafficking cases attended by the Public Defender's Office in the second half of 2021 were analyzed, in order to determine the granting of nullity claims, the arguments used by the court in this case. of denial and the neighborhoods in which the flagrant took place. Afterwards, the decisions were compared with the aforementioned jurisprudence and a critical analysis was carried out to investigate aspects of the criminal drug policy. In 11 cases, nullity was argued for violating the domicile. In all opportunities the nullity was rejected. All denials were based on the jurisprudence of the TJ-RS regarding the authorization of police entry in case of permanent crime. Home invasions occurred in vulnerable neighborhoods.

Keywords: Drug Trafficking; Inviolability of the Home; Criminal Policy; Nullity; Montenegro/RS;