Law No. 10,409 Of January 11, 2002

Original Language Title: Lei nº 10.409, de 11 de Janeiro de 2002

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LEI No 10,409, OF January 11, 2002.

Disposes on the prevention, treatment, surveillance, control and suppression of the illicit production, use and trafficking of illicit products, substances, or drugs that cause physical or psychic dependence, thus elated by the Ministry of Health, and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC I know that the National Congress decrees and I sanction the following Law:

CHAPTER I

GENERAL PROVISIONS

Art. 1o (VETADO)

Art. 2o It is the duty of all the people, physical or legal, national or foreign with domicile or registered office in the Country, collaborate in preventing the production, trafficking or misuse of illicit products, substances or drugs that cause physical or mental dependence.

§ 1o The legal person who unjustifiably deny himself to collaborate with the precepts of this Act will immediately have suspended or undue aid or grants, or authorization to operate, by the Union, by the states, by the Federal District and by the Municipalities, and their authorities, public companies, mixed-economy societies and foundations, under penalty of responsibility of the granting authority.

§ 2o The Union, the States, the District Federal and the Municipalities will create fiscal and other stimuli, intended for physical and legal persons who collaborate in the prevention of production, trafficking and use of illicit products, substances or drugs that cause physical dependence or psychic.

Art. 3o (VETADO)

Art. 4o It is provided to the Union to celebrate congeniums with the States, with the Federal District and with the Municipalities, and with public entities and private, in addition to foreign bodies, aiming at the prevention, treatment, surveillance, control, suppression of trafficking and misuse of illicit products, substances or drugs, observed, as to financial resources and budgeting, the provisions of the art. 47.

Single paragraph. Among the prevention measures include school guidance at the three levels of education.

Art. 5o The health authorities, judiciary, police and customs officers will organize and maintain statistics, records and too much informs of the respective activities related to the prevention, surveillance, control and repression of which it treats this Law, and will refer, monthly, to the National Anti-Drug Registry of the Honour Senad and to the State and Municipal Councils of Narcotics, the data, observations and pertinent suggestions.

Single paragraph. It is up to the National Anti-Drug Council to draw up global and annual reports and, annually, to remetallize them to the international body of narcotics control.

Art. 6o Is it faculty to the National Antidrug Registry? Senad, the Public Prosecutor's Office, the consumer protection bodies and the police authorities to request the health authorities to carry out inspection in industrial and commercial enterprises, hospital, research, educational establishments, or congeners, as well as in the medical and pharmaceutical services that produce, sell, purchase, consume, prescribe or provide illicit products, substances or drugs that cause physical or psychic dependence.

§ 1o The requisite authority may appoint specialized technician to attend the inspection or personally attend its realization.

§ 2o In the case of bankruptcy or extrajudicial settlement of the companies or establishments referred to in this article, or any other in which there are illicit products, substances or drugs that cause physical or psychic dependence, or pharmaceutical specialties containing them, lies in the judgment to which they tramp the done:

I? determine, immediately to the science of bankruptcy or liquidation, be laced their facilities;

II? order the health authority designated in law to the urgent adoption of the necessary measures for the receipt and guard, in deposit, of the illicit substances, drugs or pharmaceutical specialties raised;

III? give science to the organ of the prosecutor's office, to keep up with the feat.

§ 3o The alienation, in public hoisting, of drugs, pharmaceutical specialties or illicit substances will be carried out in the presence of representatives of the National Antidrug Registry? Senad, of the State Boards of Entorpecans and the Public Prosecutor's Office.

§ 4o The rest of the unravaged product will be, continuous act to the public hoisting, destroyed by the health authority, in the presence of the authorities referred to in § 3o.

Art. 7o Of the bidding for divestment of drugs, pharmaceutical specialties or illicit substances, can only participate in legal persons regularly enabled in the health or scientific research area that vouches for the lawful targeting to be given to the product to be shot.

Single paragraph. Do those snatching drugs, pharmaceutical specialties or illicit substances, to substantiate the stated targeting, are subject to the inspection of the National Antidrug Registry? Senad and the Public Prosecutor's Office.

CHAPTER II

OF PREVENTION, ERADICATION AND TREATMENT

Section I

From Prevention and Eradication

Art. 8o Are prohibited, throughout the national territory, planting, culture, harvesting and exploitation of all vegetables and substrates, altered in the original condition, of which products, substances can be extracted or illicit drugs that cause physical or mental dependence, specified by the competent organ of the Ministry of Health.

§ 1o The Ministry of Health may authorize the planting, crop and harvesting of the vegetables referred to in the caput, in a predetermined location, solely for medicinal or scientific purposes, subject to the supervision and cassation of the authorization, at any time, by the same organ of that Ministry which granted it, or by another of greater hierarchy.

§ 2o Illegal plantations will be destroyed by the police authorities upon prior judicial authorization, heard the Public Prosecutor's Office and the National Antidrug Office's Office of the National Antidrug Office Senad.

§ 3o (VETADO)

§ 4o The destruction of illicit products, substances, or drugs that cause physical or mental dependence will be done by incineration and can only be carried out after lavrature of the surveying of the conditions found, with the delimitation of the site and the seizure of substances necessary for the felony body examination.

§ 5o In case of the burning of the burnt to destroy the plantation, shall we observe, in what couber, the provisions of the Decree No. 2,661 of July 8, 1998 waived the prior authorization of the National Environment System's own organ? Sisnama.

§ 6o The eradication of vegetables of which it treats this article will proceed with caution, not to cause the environment damage beyond what is necessary.

§ 7o (VETADO)

§ 8o (VETADO)

Art. 9o It is indispensable for the prior license of the health authority to produce, extract, manufacture, transform, prepare, possess, maintain in deposit, import, export, re-export, remit, transport, expose, offer, sell, buy, exchange, exchange or acquire, for any purpose, product, substance or illicit drug that causes physical or psychic dependence, or chemical product intended for its preparation, observed the remaining legal requirements.

Single paragraph. The requirement provided for in this article is waived for:

I? the purchase of medicinal products, upon medical prescription, in accordance with legal and regulatory precepts;

II? (VETADO)

Art. 10. The leaders of establishments or entities from the areas of teaching, health, justice, military and police, or of social, religious, cultural, recreational, sporting, charitable and representative media, of therapeutic communities, of the professional national services, the assistetive associations, financial institutions, service clubs and organized community movements will adopt, within the framework of their responsibilities, all necessary measures for prevention to trafficking, and to the use of illicit products, substances or drugs, which cause physical or mental dependence.

§ 1o Legal persons and institutions and entities, public or private, will implement programs that ensure the prevention of trafficking and use of illicit products, substances, or drugs that cause physical or mental dependence in their respective workplaces, including campaigns and preventive actions directed at employees and their family.

§ 2o Are preventative measures referred to in the caput those that target, among other goals, the following:

I? (VETADO)

II? encouraging sports, artistic and cultural activities;

III? promoting debates of issues linked to health, citizenship and ethics;

IV? keep in the educational establishments support services, guidance and supervision of teachers and pupils;

V? keep in the hospitals recovery activities of dependents and guidance of your family members.

Section II

From Treatment

Art. 11. The dependant or the user of illicit products, substances or drugs, which cause physical or psychic dependence, related by the Ministry of Health, shall be subject to the measures provided for in this Chapter and Section.

Art. 12. (VETADO)

§ 1o The treatment of the dependent or the user will be done in a multiprofessional way and, where possible, with the assistance of his / her family.

§ 2o Cabe to the Ministry of Regulatory health the actions aimed at reducing social harm and health.

§ 3o Private companies that develop reinsertion programmes in the labour market, of the dependent or user of products, illicit substances or drugs, or that cause physical or mental dependence, forwarded by official organ, will be able to receive benefits to be created by the Union, states, Federal District and Municipalities.

§ 4o Os hospital or psychiatric establishments, public or private individuals, who will receive dependents or users for treatment, will refer to the National Anti-Drug Council's Office of the Conad, up to day 10 (ten) of each month, statistical map of the cases met in the previous month, with the indication of the disease code, according to the classification approved by the World Health Organization, vetoed the mention of the patient's name.

§ 5o In the case of internation or outpatient treatment by court order, monthly communication of the state of health and recovery of the patient to the competent judgment will be made, if that determines it.

Art. 13. Will the hospital and ambulatory institutions communicate to the National Antidrug Registry? Senate the deaths arising from the use of product, substance, or illicit drug.

CHAPTER III

(VETADO)

CHAPTER IV

OF THE CRIMINAL PROCEDURE

Single Section

From the common procedure

Art. 27. The procedure relating to prosecutions for crimes defined in this Act shall be governed by the provisions of this Chapter, by applying, in a subsidiary, to the provisions of the Criminal Code, the Code of Criminal Procedure and the Criminal Enforcement Act.

Art. 28. (VETADO)

§ 1o For the purpose of the lavrature of the arrest self in blatant and establishment of the authorship and materiality of the offence, it is sufficient the laude of the finding of the nature and quantity of the product, of the substance or of the illicit drug, struck by official expert or, failing that, by the elderly person, chosen, preferentially, among those who have technical habilitation.

§ 2o The expert who subscripts to the laude referred to in para. 1the will not be barred from participating in the drafting of the definitive laude.

Art. 29. The police enquiry will be completed within a maximum of 15 (fifteen) days, if the indictment is arrested, and from 30 (thirty) days, when released.

Single paragraph. The deadlines referred to in this article may be duplicated by the judge, upon justified request from the police authority.

Art. 30. The police authority will summarily report the circumstances of the fact and justify the reasons that led it to the classification of the offence, with an indication of the quantity and nature of the product, the substance or the illicit drug seized, the site or the conditions under which the criminal action and circumstances of the arrest, the conduct, qualification and background of the agent were developed.

Art. 31. Finishes the deadlines set out in art. 29, the autos of the police investigation shall be remitted to the competent judgment, without prejudice to the achievement of complementary representations aimed at clarifying the fact.

Single paragraph. The conclusions of the representations and the lauds will be joined to the autos until the day before the nominee for the hearing of instruction and trial.

Art. 32. (VETADO)

§ 1o (VETADO)

§ 2o The overwriting of the process or the reduction of the penalty may still proceed from agreement between the Public Prosecutor's Office and the indicted that spontaneously reveal the existence of criminal organization, allowing the arrest of one or more of its members, or the seizure of the product, the substance or the illicit drug, or that, in any case, justified in the agreement, to contribute to the interests of Justice.

§ 3o If the offering of the complaint has been prior to the disclosure, effective, of the remaining members of the gang, group, organization or flock, or of the location of the product, substance or illicit drug, the judge, by the proposal of the representative of the Public Prosecutor's Office, by uttering the sentence, it may no longer apply the penalty, or reduce it, from 1/6 (one sixth) to 2/3 (two-thirds), justifying its decision.

Art. 33. At any stage of the criminal prosecution relating to the crimes provided for in this Act, they are permitted, in addition to those provided for in Law No. 9,034 of May 3, 1995, upon judicial authorization, and heard the representative of the Public Prosecutor's Office, the following investigatory procedures:

I? infiltration of police officers into gangs, groups, organizations, or flocks, with the aim of harvesting information about illicit operations developed in the framework of these associations;

II? the police non-actuation on the carriers of illicit products, substances or drugs entering the Brazilian territory, from it leaving or in it transits, with the purpose of, in collaboration or not with other countries, to identify and hold greater responsibility number of members of trafficking and distribution operations, without prejudice to the criminal action bootable.

Single paragraph. In the inciso II hypothesis, the authorisation will be granted, provided that:

I-be known the likely itinerary and identification of the agents of the offence or collaborators;

II-the competent authorities of the countries of origin or transit offer guarantee against the escape of the suspects or from stray from the products, substances or illicit drugs carried.

Art. 34. For the criminal prosecution and the adoption of the investigatory procedures provided for in the art. 33, the Public Prosecutor's Office and the police authority will be able to apply for the judicial authority, with sufficient evidence of the criminal practice:

I? the access to data, documents and tax, banking, patrimonial and financial information;

II? the placement, under surveillance, for a definite period, of bank accounts;

III? the access, for a definite period, to the computerized systems of financial institutions;

IV? the interception and recording of the telephone communications, for the given period of time, observed the provisions of the relevant legislation and in Chapter II of Law No. 9,034, 1995.

Single paragraph. (VETADO)

Art. 35. (VETADO)

Art. 36. (VETADO)

CHAPTER V

OF THE CRIMINAL INSTRUCTION

Art. 37. Received the autos of the police inquiry in judgment, will be given to the Public Prosecutor's Office for, within 10 (ten) days, to adopt one of the following arrangements:

I? apply for filing;

II? request the representations you understand necessary;

III? offer denunciation, burrow up to 5 (five) witnesses and apply for the remaining evidence to understand pertinent;

IV? leave, justifiably, to propose criminal action against the agents or parties of offences.

§ 1o Required the filing of the inquiry by the representative of the Public Prosecutor's Office, upon statement of reasons, the autos will be conclusive to the judicial authority.

§ 2o The judicial authority that disagrees with the reasons of the representative of the Public Prosecutor's Office for the filing of the inquiry will make remittance of the autos to the Attorney General of Justice, upon reasoned decision.

§ 3o The Attorney General of Justice will offer denunciation or designate another member of the Public Prosecutor's Office to present it or, if it understands incabble the complaint, will ratify the proposal for filing, which in that case, may not be refused by the judicial authority.

Art. 38. Offered the complaint, the judge, in 24 (twenty-four) hours, will order the citation of the accused to respond to the charge, in writing, within 10 (ten) days, counted from the date of the juncture of the warrant to the autos or the first publication of the edital of citation, and will designate day and time for the interrogation, which will perform within the following 30 (thirty) days, if the defendant is released, or in 5 (five) days, if arrested.

§ 1o In the response, consistent prior defense and exceptions, the accused will be able to argür preliminary and invoke all defense reasons, offer documents and justifications, specify the evidence that intends to produce and burrow witnesses.

§ 2o The exceptions will be processed in trimmed, in the terms of the arts. 95 a to 113 of the Code of Criminal Procedure.

§ 3o If the answer is not filed within the term, the judge will appoint advocate to offer it in 10 (ten) days, granting him the view of the autos in the act of appointment.

§ 4o Presented the defense, the judge will grant 5 (five) days to manifest the representative of the Public Prosecutor's Office and in equal terms will make a decision.

§ 5o Understand necessary, the judge shall determine the conduct of representations, with a maximum term of 10 (ten) days.

§ 6o Applies the provisions of Law No. 9,271 of April 17, 1996 to the proceedings in which the accused, cited personally or by edital, or subpoenaed for any procedural act, cease to appear for no justified reason.

Art. 39. Observed the provisions of the art. 43 of the Code of Criminal Procedure, the complaint will also be rejected when:

I? is manifestly inept, or will be lacking a procedural assumption or condition for the exercise of criminal action;

II? there is no fair cause for the prosecution.

Art. 40. Received the complaint, the judge will designate day and time for the hearing and trial hearing, and will order the subpoena of the accused, the Public Prosecutor's Office and, if it is the case, of the assistant.

Art. 41. At the hearing and trial hearing, after the interrogation of the accused and the respondent of the witnesses, the word, successively, will be given to the representative of the Prosecutor's Office and to the defender of the accused, by the time frame of 20 (twenty) minutes for each one, extended by a further 10 (ten), at the discretion of the judge, who will then provide the sentence.

Single paragraph. If you do not feel entitled to adjudicate immediately the cause, the judge will order the autos to be conclusive to, within 10 (ten) days, uttered the sentence.

Art. 42. (VETADO)

Art. 43. (VETADO)

Art. 44. (VETADO)

Single paragraph. It is incumbent upon the accused, during the criminal instruction, or the person concerned, in particular incident, to prove the lawful origin of the goods, products, rights and values referred to in this article.

Art. 45. The measures of hijacking and unavailability of goods or values will be suspended, if the criminal action is not initiated within 180 (one hundred and eighty) days, counted from the date of the offer of the complaint.

§ 1o The application of restitution of good or value will not be known without the personal attendance of the accused to the doomsday.

§ 2o The judge may determine the practice of acts necessary for the conservation of the product or goods and the guard of values.

CHAPTER VI

OF THE EFFECTS OF THE SENTENCE

Section I

Of The Apprehension and the Destination of Bens

Art. 46. The vehicles, vessels, aircraft and any other means of transport, the machinisms, utensils, instruments and objects of any nature, used for the practice of the crimes defined in this Act, after their regular seizure, will stay under custody of the judicial police authority, excepted the weapons, which will be collected in the form of specific legislation.

§ 1o Havendo possibility or necessity of the use of any of the above-mentioned goods in this article, the judicial police authority will be able to make use of them, under their responsibility and with the aim of their conservation, upon judicial authorization, soon after the establishment of the competent criminal action, observed the provisions of § 4o of this article.

§ 2o Feita the apprehension referred to in the caput, and having relinquished about money or cheques issued as a payment order, the police authority presiding over the inquiry should, immediately, apply for the competent judgment of the Public Prosecutor's subpoena.

§ 3the Untimed, the Public Prosecutor's Office should apply for the judgment to convert the seized cash into national currency, if at all, the compensation of the cheques issued after the inquiry's instruction, with authentic copies of the respective securities, and the deposit of the corresponding amounts into the judicial account, by joining the autos the receipt.

§ 4o O Will Public Prosecution, upon autonomous petition, require the competent judgment that, in a cautionary character, proceed to the disposal of the seized goods, excepted those that the Union, through the National Antidrug Registry? Senad, indicate to be placed under use and custody of the police authority, intelligence or military organs, involved in the operations of prevention and prosecution of trafficking and improper use of illicit products, substances or drugs that cause physical or psychic dependence.

§ 5o Deleted the goods that if there is a nominee for the purposes set out in § § 1o and 4o, the application for disposal should contain the relationship of all the remaining goods seized, with the description and specification of each of them, and information about who has them in custody and the place where they are located.

§ 6o Redear the disposal of the goods, the respective petition will be autured in trimmed, whose autos will have autonomous tramway in relation to those of the main penal action.

§ 7o Autuated the application for divestments, the autos will be conclusive to the judge who, verified the presence of nexus of instrumentality between the offence and the objects used for their practice and risk of loss of economic value by the course of time, will determine the assessment of the related goods, subpoena the Union, the Public Prosecutor's Office, the National Registry Antidrugs? Senad and the person concerned, this, if it is the case, by edital with a time limit of 5 (five) days.

§ 8o Feita the assessment and address any possible disagreements on the respective laude, the judge, by sentence, will approve the value assigned to the goods and will determine to be disposed of at auction.

§ 9o Realized the auction, and deposited in judicial account the amount ascertained, the Union will be subpoenaed to offer, in the manner provided for in regulation, collateral equivalent to that amount and the values deposited pursuant to § 2o, in certificates of issuance of the National Treasury, with characteristics to be defined in act of the Minister of State of the Farm.

§ 10. It is incumbent upon the National Anti-Drug Office to ask the National Treasury Board Secretariat to issue the certificates referred to in § 9o.

§ 11. Made the surety, the values of the judicial account will be transferred to the Union, by deposit in the account of the National Anti-Drug Fund Functional Funad, by aping the autos of the alienation to those of the main proceedings.

§ 12. They will have only devolutive effect of the appeals brought against the decisions rendered in the course of the procedure laid down in this article.

Art. 47. The Union, through the National Anti-Drug Registry? Senad, will be able to firm up with the states, with the Federal District and with bodies oriented towards the prevention, repression and treatment of users or dependents, with views to the release of equipment and resources by it raised, to the deployment and implementation of programs to combat illicit trafficking and prevention of trafficking and misuse of illicit products, substances or drugs or which cause physical or mental dependence.

Art. 48. In utching the sentence of merit, the judge will decide on the product's pervation, well or value seized, hijacked or declared unavailable and on the lifting of the escrow.

§ 1o In the case of lifting of the surety, the certificates referred to in § 9o of the art. 46 will be rescued by their face value, and the resources for the respective payment providedby the National Anti-Drug Fund.

§ 2o The National Treasury Board Secretariat will make the budget allocation for the payment of the certificates referred to in § 9o of the art. 46.

§ 3o In the case of pervation, in favor of the Union, of the goods and values mentioned in the art. 46, the National Treasury Board Secretariat will arrange for the cancellation of the certificates issued to cautiate them.

§ 4o The values seized in due to the crimes typified in this Act and which were not the object of Guardianship, after enacting your perennial in favor of the Union, will be appropriate directly to the National Anti-Drug Fund.

§ 5o Compete to the National Antidrug Registry? Senad the divestment of the seized goods and not auctioned in a cautionary character, the pervation of which has already been enacted in favor of the Union.

§ 6o The National Antidrug Registry? Senad will be able to firm up cooperation arrangements, in order to give immediate fulfillment to the one established in § 5o.

Section II

From the Loss of Nationality

Art. 49. (VETADO)

Art. 50. It is liable to expulsion, in the form of the specific legislation, the foreigner who commits any of the crimes set out in the arts. 14, 15, 16, 17 and 18, as soon as complied with the conviction imposed, unless the national interest recommends the immediate expulsion.

CHAPTER VII

(VETADO)

CHAPTER VIII

FINAL PROVISIONS

Art. 53. The applied educational measures will be able to be reviewed judicially, at any time, upon express request from the agent, your defender or the representative of the Public Prosecutor's Office.

Art. 54. (VETADO)

Art. 55. As there is a need for recognition of the accused, witnesses to the crimes of which this Act is concerned will occupy room where they cannot be identified.

Art. 56. (VETADO)

Art. 57. (VETADO)

Art. 58. (VETADO)

Art. 59. (VETADO)

Brasilia, January 11, 2002; 181o of Independence and 114o of the Republic.

FERNANDO HENRIQUE CARDOSO

Aloysio Nunes Ferreira Filho

Celso Lafer

Pedro Malan

Paulo Renato Souza

José Serra

Roberto Brant

Alberto Mendes Cardoso

Gilmar Ferreira Mendes