1. SUMMARY
The work addresses the validity and use of fortuitous evidence in the context of interception of telephone communications in criminal investigations and criminal procedural instructions. The study is based on the concept of evidence proposed by the Brazilian criminal procedure and the constitutional limitations of telephone interception, regulated by Law 9,296/96 and resolutions 59/2008 and 217/2016 of the National Council of Justice. Doctrinal divergences and the main judicial decisions on the subject are presented.
The need for legal regulation for fortuitous evidence is brought to the fore, which would provide greater coherence between judicial decisions, striving for legal certainty and evolution in the debate. It is clear that it is essential to value fortuitous evidence as an instrument in the search for the truth of the facts, preventing injustice and impunity. There is no consensus in doctrine or jurisprudence on the validity of this type of evidence, as well as the absence of laws on the procedure to be carried out when the authority is faced with the fortuitous finding of evidence of a new criminally relevant fact. To carry out this monographic work, various doctrinal sources and judicial decisions from higher courts were used, as well as the Federal Constitution of 1988, the Criminal Procedure Code, Law 9296/96 and the resolutions of the National Council of Justice.
Keywords: Proof; Telephone Interception; Fortuitous encounter of evidence; Serendipity.
ABSTRACT
The final paper addresses the validity and use of fortuitous evidence in wiretapping methods in criminal investigations and procedural instructions. The study is based on the proof concept and it is proposed by the Brazilian criminal prosecution and the wiretap regarding a Constitutional limitations, which is regulated by Law 9.296 / 96, the resolutions 59/2008, and 217/2016 of the National Council of Justice . The doctrinal divergences and the main judicial decisions concerning the subject will be presented.
There will be an opportunity to study a necessity of a legal regulation for fortuitous evidence, which would provide greater coherence in judicial decisions, enhancing legal certainty and evolution in the debate. The fortuitous test valuation is fundamental as a search instrument for the truth of the facts, preventing injustices and impunity. There is no consensus in the doctrine or in the jurisprudence on the validity of this type of proof, as well as, absence of laws on the procedure to be carried out when the authority is faced with the fortuitous meeting of evidences of a new criminally relevant fact. In order to carry out this final paper, various doctrinal sources and court decisions were used, as well as the Federal Constitution of 1988, the Criminal Procedure Code, Law 9296/96 and the resolutions of the National Council of Justice.
Keywords: Proof; Wiretapping; Fortuitous gathering of evidence; Serendipity.
2. INTRODUCTION
This work focuses on the analysis and study of the validity and extent of the fortuitous finding of evidence, within Brazilian criminal prosecution, when this evidence was obtained through the interception of telephone communications. The question raised is based on the possibility of using fortuitous evidence to impute a criminally relevant fact, which is distinct from the object of the investigation determined by judicial authorization.
The study begins with research and analysis of the concept and use of procedural evidence in criminal investigation and criminal instruction. In the first chapter, understandings of the doctrine and jurisprudence of the Superior Courts were used. We sought to demonstrate how the national criminal legal system values evidence, as well as its importance in convincing the magistrate for a conviction or acquittal sentence.
The evidence used in criminal proceedings is not limited to demonstrating a fact. The sensory perception of a naturalistic event in itself is not considered procedural evidence, and legal procedures must be carried out to transform this information into a document and incorporate it into the process. The constitutional limitations on obtaining it must be observed, as evidence obtained illegally, that is, violating the rules and rights of others, is not accepted in the Brazilian legal system.
Convincing the judge is the main objective of the parties, who must bring to the process elements that demonstrate the facts as described in their respective theses. Therefore, the value attributed by the judge to these evidentiary elements will define whether the sentence will be condemnatory or acquittal.
In the second chapter, the work focuses on telephone interception as a means of obtaining evidence for criminal prosecution. In the study of this powerful tool, a critical analysis of constitutional permission and limitations is carried out, with a focus on the secrecy of communications and the fundamental rights of protecting private life and intimacy. Within the investigative perspective, there is a doctrinal understanding of the balance of individual rights and the role of the State in persecuting and punishing criminal offenders. A consideration of legal interests legally granted to the judge at the time of the decision to authorize the precautionary measure or incidentally in the process. The request for interception made by the police authority or member of the public ministry must contain all the elements that enable the judicial exercise of this consideration.
The peculiarities of interception were also analyzed, as strict material and formal requirements must be met for its implementation. Procedure determinations are regulated by Law 9,296 of 1996 and also by resolutions Nos. 59 and 217 of the National Council of Justice.
In the third chapter, we sought to bring to the fore the doctrinal and jurisprudential understandings of the problem presented by this work, which is the validity and use of fortuitous evidence obtained by telephone interception. Mainly observed is the absence of legal regulation on this type of evidence, leaving the decision of acceptance and valuation of fortuitous evidence to the judiciary in accordance with each specific case. Until mid-2010, the Superior Courts had solid jurisprudence on the subject, but with the advancement of social complexity and new understandings about the interpretation of the norm, they have been deciding differently and according to each specific case. The Superior Court of Justice, with more decisions on the subject, innovates with the direction for accepting this evidence in different circumstances and demanding specific requirements. Several judgments from the STF and STJ are presented, which demonstrate the change in jurisprudential understanding and how these courts are currently dealing with the issue.
In Brazilian doctrine, there is no peaceful understanding about the requirements for the validity of fortuitous evidence, or even whether this evidence would be lawful. Several books and articles written by established scholars on the national scene were used in this work, to demonstrate the diversity of understandings on the topic.
3. THE IMPORTANCE OF EVIDENCE IN THE EFFECTIVENESS OF THE CRIMINAL PROCESS
3.1. Concepts and purposes of evidence in criminal prosecution.
All criminal prosecution, whether due to materiality and authorship, as well as the circumstances and the way in which a certain criminal event occurred, is based on the search for evidence. One of the tools used to produce these elements is the interception of telephone communications, provided for by the Federal Constitution in its article 5, XII and regulated by Law 9296/96, which in the text of article 2 states that only interception will be authorized, if proof cannot be provided by other means. Therefore, evidence is one of the main elements of all criminal prosecution, whether in criminal investigation or criminal procedural instruction. The judge, in his search for the truth, will decide the defendant’s fate based on the evidence demonstrated by the parties.
Sergio Sérvulo da Cunha defines the term proof as:
1. Evidence, which is produced, regarding the existence or non-existence of a fact.
2. Means with which this evidence is produced.
Elmir Duclerc understands proof as the means of transmitting information:
The concept of evidence can be seen as communication, as an exchange of messages between senders (parties, witnesses, experts) and receiver (the judge), who must receive, process, interpret and value the data transmitted to him, as a necessary step in the process. decision-making process. The proof would, therefore, be a descriptive message, that is, with the primary purpose of informing. Norm and proof, therefore, would be two great sources of information, prescriptive and descriptive, tending to compose a true linguistic universe in which the judge would be immersed when making a decision.
According to Nestor Távora, proof is the demonstration of facts:
The demonstration of the truth of the facts is done through the use of evidence, and the proof is everything that contributes to the formation of the judge’s conviction, demonstrating the facts, acts, or even the law itself discussed in the litigation.
In Fernando Capez’s understanding, proof is the set of procedural acts that aim to convince the judge:
From Latin probation, is the set of acts carried out by the parties, the judge and third parties, designed to bring to the judge the conviction about the existence or non-existence of a fact, the falsity or veracity of a statement. It is, therefore, any and all means of perception used by man with the purpose of proving the truth of an allegation.
Evidence in the criminal sphere has a greater value than in other branches of law and, as a result, has different procedures and valuation. The criminal sanction deprives the individual of his most precious asset, the one that cannot be measured economically, which is his freedom. In the midst of legal legal procedures, one cannot depart from the most realistic construction of the facts possible, striving for the concreteness of the events. The assumptions and factoids created by the parties must be worthily rejected by the magistrate, who, knowing the law and learning human desires, cannot be led to a trial without evidence. The parties, contaminated by the partiality inherent to their procedural function, can sometimes attribute axiological weight to certain events or documents attached to the case, basing themselves on these values to construct their theses, whether defense or accusation, the which cannot be accepted by the magistrate as a basis for his conviction, much less for his judgment.
It is important to mention the institution of the full jury court, which has as one of the constitutional elements the Plenitude of Defense, on which the accusation and defense of philosophical, moral, religious and other precepts that they deem convenient to convince the sentencing council can be based. . However, such manifestations do not come close to what constitutes proof.
There are three legal meanings for the term proof: Act of proving, which in the instructional phase, is the process by which the…