Da possível admissão de provas ilícitas, no processo penal, mediante a aplicação do princípio da proporcionalidade

Abstract

The purpose of the present analysis is to verify the inadmissibility of the unlawful evidence in the Brazilian criminal proceedings, pointing out its possible relativity, in an exceptional way, through the application of the principle of proportionality. Criminal Law, as well as the other fields of law, have the purpose of social pacification. To reach such scope, criminal prosecution must seek to reach the real truth about the facts that have occurred. However, there are limits to be observed on probative evidence, such as the principle of prohibiting the use of illegal evidence. It happens that, on several occasions, such a fence will make it difficult to obtain the truth and, consequently, the just resolution of the criminal litigation. There is, therefore, a collision of principles: on the one hand, the principle of real truth, which in itself represents all the functionality and raison d'être of criminal proceedings; on the other, the principle of the inadmissibility of unlawful evidence, whose constitutional provision emphasizes the need to create mechanisms that prevent the existence of arbitrariness and violations of fundamental rights by the State. In Brazil, the jurisprudence of the Superior Courts has pointed out exceptions, in which evidence obtained by means of illicit means is accepted, both pro-forma and pro-societate. In this work, it is intended to point out that no constitutional guarantee, nor principles, have an absolute value, and is limited, in a reciprocal way, through the application of the maximum of proportionality.