Disproportionate penalty for importing unregistered medicine is reviewed by the Supreme Court

Federal law 9.677/1998 provided new wording for provisions of Chapter III/ Title VIII of the Penal Code, classifying some crimes against public health as heinous.

Article 273, paragraph 1-B, item I of the Penal Code ended up establishing a 10-15 year prison sentence for anyone who “imports, sells, exposes for sale, has in deposit to sell or, in any way, distributes or delivers to consumption counterfeit, corrupted, adulterated or altered products ”or to products “without registration, when required, before the competent health agency ”.

After 23 years in force and a significant battle by lawyers, the Plenary of the Supreme Federal Court declared, last Wednesday, March 24,  the unconstitutionality of the penalty for importing medicines without registration before the competent health agency (“ANVISA”), for violating the principles of proportionality, the prohibition of cruel penalties and the individualization of the penalty, and ordered the application of the penalty provided for in the original wording of the provision, from 1 to 3 years of imprisonment.

Justice Luís Roberto Barroso, rapporteur of Extraordinary Appeal 979.962, voted to declare the penalty unconstitutional, understanding that the application of the penalties provided for the crime of contraband (Article 334-A of the Penal Code) –  two to five years of imprisonment – were applicable. Justice Alexandre de Moraes agreed with the disproportionality of the punishment, however, he dissented in regards to the applicable penalty.  According to him, the original penalty for the offense of article 273 of the Penal Code – one to three years of imprisonment – should prevail, for, it would not be possible to impose the penalty provided for a crime described  in another provision.

Following Alexandre de Moraes, Justices Nunes Marques, Rosa Weber, Dias Toffoli, Carmen Lúcia, Ricardo Lewandowski and Gilmar Mendes concurred. Justices Luiz Edson Fachin, Marco Aurélio and Luiz Fux were the minority, in favor of the constitutionality of the provision .

Therefore, the following thesis with general repercussion was approved by the Plenary: “It is unconstitutional to apply the secondary precept of article 273, of the Penal Code, with the wording given by Law 9.677/98 (imprisonment from 10 to 15 years), in the case provided for in paragraph 1-B, item I, which deals with importing medication without registration before the competent health agency. For this specific situation, the secondary precept of article 273, turned back to its the original wording (imprisonment from 1 to 3 years plus fine.