The Federal Supreme Court (STF) will examine the constitutionality of the sentence provided in article 273 of the Criminal Code (10 to 15 years confinement) for people who import medicine without health registration.

The landmark case (RE 979.962) comes from the Federal Regional Court of the 4th Region (TRF-4), which applied the punishment of 3 years, 9 months and 15 days of confinement and a fine, based on punishments foreseen for drug trafficking, which "benefited " the defendant, considering that the "high minimum sentence" of 10 years of confinement foreseen in article 273, § 1º, I of the Criminal Code.

Both the Prosecutor's Office (MPF) and the convicted defendant appealed to the Federal Supreme Court against the decision of the Federal Regional Court, which declared that the Criminal Code is unconstitutional and applied the sentence provided in article 33 of the Act 11.343/2006.

In the Supreme Court, the Prosecutor argues that it is not for the Judiciary to combine legal predictions and create a third norm, under penalty of offense to the constitutional principles of separation of powers and legal reserve. The defense, on the other hand, maintains that the declaration of unconstitutionality of the secondary precept of the provision of the Criminal Code produced the reprisalatory effect of the original wording of the provision, videlicet, it would again come into force the rule that established for the conduct in article 273 the sentence in abstract from 1 to 3 years of confinement.

The subject treated in Extraordinary Appeal (RE) 979.962 had general repercussions recognized unanimously by the Virtual Full Bench.

Speaking at the Virtual Plenary Session, the rapporteur, Minister Roberto Barroso, said that the subject in question has a general repercussion to the economic, political, social and legal point of view. According to him, the very constitutionality in article 273 of the Criminal Code is being examined, due to an alleged violation of the principle of proportionality, by the imposition of high penalty and the identical penalty for completely different conducts. In addition, it is discussed the possibility of using secondary precept of another criminal type to fix the sentence for the importation of unregistered medicine.

According to Barroso: "From the legal point of view, because of the uniform sanction for unequal conducts, courts in the country have in many cases recognized the disproportionality of the sanction and, for that reason, constructed creative interpretive solutions to apply a penalty more appropriate to concrete cases, "he said.

The minister also added that, from a social point of view, the lack of uniformity in the treatment of those who import unregistered medicine "produces a diffuse sense of injustice, with potential discrediting the system of criminal prosecution."

There is still no scheduled date for the STF full session to judge the merits of Extraordinary Appeal (RE) 979.962.