A cooperação penal internacional e o compartilhamento de provas à luz da Constituição Federal e do Pacto de São José da Costa Rica: legalidade da prova obtida no exterior

Abstract

In order to emphasize the problem of sharing evidence produced in another country, through international criminal cooperation and its compliance with Brazilian law, especially the Federal Constitution, as well as with the San José Pact of Costa Rica, was created a study, in which phenomenological hermeneutics were used to direct the researcher in the face of the complexity that involves the subject being analyzed and the divergent positions of the operators of the law in this respect. International criminal cooperation is a reality that cannot be avoided, given the growth in numbers and in modus operandi, of cross-border crimes. However, despite the need to use this instrument, the disregard for fundamental rights cannot be allowed to escape, especially in the case of a country whose legal system excels in implementing the fundamental guarantees provided for in the Major Law. Consequently, the admission of the sharing of evidence produced in other countries must adhere to the rules that govern fundamental rights, whether in the Brazilian Magna Carta, or in the Brazilian Criminal Law Code, in order not to culminate in the validation of an express violation of the guarantees that involve fair process, broad defense and contradictory. Despite the critical factual situation that criminal procedural practice reveals today, Brazil still does not have a specific rule, which disciplines with the clarity that the situation requires the issue of sharing evidence obtained in other States. There is an attempt to reform, current still, the Brazilian Criminal Procedure Code, which, as it is being engineered, will perhaps bring a mere relief to the issue, as it will never face all the quarrels that arise, especially when talking about international criminal cooperation. In addition, this lack of proper and detailed regulation on the issue, ends up generating dissenting decisions by the STF and STJ regarding the matter and, consequently, it generates a situation of complete legal uncertainty. With a study, there was a clear glimpse of the need for lawmakers and enforcers to turn their attention to the issue of evidence shared between States and its relationship with the procedural guarantees in force in Brazil, especially to create standards ones that determine the mandatory active participation. defense in the production of evidence in International Criminal Cooperation and the observance of constitutional principles in force in Brazil.