Article 157º CPP – Illicit evidence.

Art. 157. Illicit evidence  , understood as that obtained in violation of constitutional or legal norms, is inadmissible and must be removed from the process  . 
    § 1 Evidence derived from illicit evidence is also inadmissible, except when the causal link between one and the other is not evidenced, or when the derivatives can be obtained by a source independent of the first ones.
    § 2 An independent source is considered to be one that by itself, following the typical and usual procedures, typical of investigation or criminal instruction, would be capable of leading to the fact that is the object of the evidence.
    § 3 The decision to remove the evidence declared inadmissible is precluded, it will be rendered unusable by court decision, allowing the parties to monitor the incident.
    § 4 (VETOED)
§ 5 The judge who is aware of the content of the evidence declared inadmissible cannot issue the sentence or decision.  (Included by Law No. 13,964 of 2019)
Paragraph 5 suspended sine die by injunction granted in ADIs 6,298, 6,299, 6,300

Constitutional guarantee and basis

Constitutional guarantee:  The wording of  item LVI, article 5, of the CF is as follows : “Evidence obtained by illicit means is inadmissible in the process”.

Constitutional basis:  The basis for the prohibition of illegal evidence is anchored in  article 5, item X, of the CF : “The intimacy, private life, honor and image of people are inviolable (…) ”.

Doctrine

Alexandre de Moraes:  The due process of law and the prohibition of illicit evidence . Conjure

Alexandre de Moraes:  Constitution protects the inviolability of cell phones and computers. Conjure .

Alexandre de Moraes:  The due process of law and the prohibition of illicit evidence .  Conjure

Fernando Augusto Fernandes:  Releasing the use of illicit evidence would be to create proportional unconstitutionality . Conjure

Gustavo Badaró:  Proposals to change the regime of illegal evidence in criminal proceedings . Badaro lawyers.

José Carlos Abissamra Filho :  Toffoli’s decision in the Coaf case restores institutional and legal security . Conjure

Leonor Cacaes Palácios da Silva :  Obtaining evidence on smartphones protected through biometrics (fingerprints) and numeric passwords and the principle of non-self-incrimination . Law School. University of Lisbon.

Mónica Sousa dos Santos :  Phone tapping of defender and defendant: The epidemic of the silent probe .  repository.ul.pt. 

Jurisprudence

Minister Joel Ilan Pacionrnik, flagrante delicto and illicit evidence:  This is a valuable decision, containing several lessons regarding evidence. The summary states that “the Court of origin considered that, although nothing illegal had been found in the possession of the accused, the proof of trafficking was obtained in flagrant violation of the constitutional right to non-incrimination, since he was compelled to reproduce, against him, a conversation held with a third person through the hands-free cell phone system, which led the police to his residence and culminated in the collection of all the narcotic material in question” ( Joel Ilan Pacionrnik – STJ – REsp 1630097 ).

Distinguishing illicit proof from nullity

Concept of illicit evidence:  Illicit evidence is that produced in violation of constitutional or legal norms. Not always, but usually produced in violation of criminal law. Incidentally, it can be said that this is a characteristic of illegal evidence, it usually constitutes a crime. The interception of telephone, computer or telematics communications constitutes a crime typified in  article 10 of Law n. 9,296/96 . The crimes of violation of correspondence, telegraph and radio are provided for in  article 151 of the CP. Obtaining testimony through coercion constitutes the crime of abuse of authority. Violation of domicile constitutes a crime under article 250 of the CP. The violation of banking secrecy is provided for in Complementary Law n. 105/2001. As we said, although illicit evidence is commonly a crime (which already greatly contributes to differentiating it from nullity), it is not always. We give an example of illegal evidence that does not constitute a crime: environmental recording in some cases.

Differences between illicit evidence and nullity: Illicit evidence is produced outside the process. Usually in violation of criminal law or the CF. Nullity is verified within the process. It results from an act of the process, which was carried out in violation of the criminal or constitutional procedural norm. They are different institutes. Even with different positions in the CPP. Illicit evidence is dealt with in Title VII, which deals with the Evidence, whereas nullities are found in Book III, Title I of the CPP. The legal consequences of distinguishing and recognizing one over the other are very significant. Illicit evidence is an extra-procedural phenomenon. Nullity is intra-procedural. If the process were a building, whoever was inside the process, to see the illicit evidence, would need to open the window and see it from afar. To realize nullity, he would have to knock on the walls of the building and perceive it in its structure. The illicit evidence is sent to the process, entering it through the back door. It is not “null proof”. Eventually, it may extend its illegality to other probative acts. It can also, depending on its intensity, nullify procedural acts, penetrating the structure of the process. But, in this case, it, the illicit evidence, is not null. It provokes, generates, produces nullity. The nullity of the process cannot be confused with illegal evidence. They are completely different institutes, with different rules, with different consequences. Illicit evidence may, eventually, produce the nullity of the process (especially when it subtracts the just cause), but it does not constitute nullity. It is not “null proof”. Eventually, it may extend its illegality to other probative acts. It can also, depending on its intensity, nullify procedural acts, penetrating the structure of the process. But, in this case, it, the illicit evidence, is not null. It provokes, generates, produces nullity. The nullity of the process cannot be confused with illegal evidence. They are completely different institutes, with different rules, with different consequences. Illicit evidence may, eventually, produce the nullity of the process (especially when it subtracts the just cause), but it does not constitute nullity. It is not “null proof”. Eventually, it may extend its illegality to other probative acts. It can also, depending on its intensity, nullify procedural acts, penetrating the structure of the process. But, in this case, it, the illicit evidence, is not null. It provokes, generates, produces nullity. The nullity of the process cannot be confused with illegal evidence. They are completely different institutes, with different rules, with different consequences. Illicit evidence may, eventually, produce the nullity of the process (especially when it subtracts the just cause), but it does not constitute nullity. generates, produces nullity. The nullity of the process cannot be confused with illegal evidence. They are completely different institutes, with different rules, with different consequences. Illicit evidence may, eventually, produce the nullity of the process (especially when it subtracts the just cause), but it does not constitute nullity. generates, produces nullity. The nullity of the process cannot be confused with illegal evidence. They are completely different institutes, with different rules, with different consequences. Illicit evidence may, eventually, produce the nullity of the process (especially when it subtracts the just cause), but it does not constitute nullity.

Obtaining evidence by means of a procedural act and nullity: When evidence is obtained through a procedural act, and there is a violation of the law, it is not considered to be illegal evidence, but procedural nullity. Examples of nullities of this kind: unimputable who is interrogated without a curator; witness questioning without the summons and presence of the accused for the hearing; interrogation of the accused at the beginning of the hearing, and not at the end, with reversal of the order. According to article 564, item III, letter “b” of the CPP, the process in which the examination of the forensic evidence is lacking in crimes that leave traces is absolutely null. It will be said that the examination of the corpus delicti is carried out outside the process, not being, consequently, a procedural act. Incorrect. It is procedural. It is regulated by procedural law. The purpose of its elaboration is to be used in the process. It goes through a translation and incorporation mechanism. It is and belongs to the process. In a building, cement and bricks are manufactured outside the work, which does not mean that they are not part of the building. The same is true of skills in general. They are carried out abroad, or even before starting the process, but they never ceased to be and belong to the process. Lacking the examination of the corpus delicti, the process is null. If the expert carrying out the examination is suspect, the examination is non-existent for all intents and purposes. Expertise is zero. It is not illegal evidence. If the expert carrying out the examination is suspect, the examination is non-existent for all intents and purposes. Expertise is zero. It is not illegal evidence. If the expert carrying out the examination is suspect, the examination is non-existent for all intents and purposes. Expertise is zero. It is not illegal evidence. 

In nullity there may be violation of criminal law:  In nullity there is always violation of criminal procedural law or constitutional norm. But there may also be a violation of criminal law. It is not because of the fact that there is also a violation of criminal law that it will cease to be null, and will become illicit evidence. Follow example. The preventive detention decree without justification and practiced with abuse of authority in the course of the instruction constitutes a null act. It is null, and not an illegal act, although it constitutes an act carried out in violation of criminal law.

Illegal pre-procedural evidence and nullities of the investigation may lead to the nullity of the criminal procedure:They can provoke. Not through a direct causal link, but indirectly. It is when the illicit pre-procedural evidence or the nullities of the investigation empty the criminal proceedings of just cause, and this circumstance, in turn, requires the recognition of the nullity of all procedural acts practiced, including the complaint. After recognizing the illegality of the evidence, it must be removed from the case file (and the evidence derived from it). If nothing remains, there is nothing to support the continuation of the criminal action. The same applies to nullities, even if verified in the inquisitive phase. If they are relevant, removing the evidentiary value of the investigation, to the point that it does not serve as support for the thesis contained in the initial accusation, the absence of just cause must be recognized and the criminal action suspended, annulling, then, all procedural acts practiced. The process does not lend itself to save the complaint. It is not among its purposes to supply the denunciation of just cause. In these hypotheses, we are faced with the emptying of criminal action. It loses substrate. The body turns into a skeleton. The substance disappears, that is to say, the evidence disappears, the proofs disappear, the just cause dissipates, the support of the criminal action is eliminated. Absence of just cause implies the recognition of the nullity of all procedural acts performed. The illegality of the evidence and the nullities of the investigation in the pre-procedural phase result in the nullity of the process indirectly. The effect is not direct of the administrative legal relationship (the inquiry) on the procedural relationship (the process), since they are distinct and independent legal relationships. 

Illicit evidence and nullity:  Illegal evidence is not nullity itself. It is null-effect. On this topic, see the subtitle  Nullity of the investigation causing nullity of the process? The figure of nullity by effect in the title Formalities, irregularities and nullities , in comments to article 304.

Consequences of nullity:  Once the nullity is recognized, the judge declares the acts to which it extends, that is when it extends (article 572, paragraph 2), as there are occasions when this phenomenon does not occur. Afterwards, the acts will be renewed or rectified. 

Illicit evidence and illegitimate evidence:  The expression illegitimate evidence, created within the scope of the General Theory of the Process, has only one use: to generate confusion. This is because illegitimate proof is essentially nullity, not proof. Since it is not proof, there is no reason to call it illegitimate proof. Nullities can originate in the postulatory phase (of the complaint, prior defense), in the phase in which jurisdiction is delimited (nullities that concern competence) and in other stages of the criminal procedure. When nullities derive from the collection of evidence, mention is made of “illegitimate evidence”. Utility? None. If an eraser is passed over this expression, the theory of nullities will be achieving simplification. Illegitimate evidence, as to its nature, is null. It’s not proof. There is nothing to justify miscegenation of legal institutes.

Doctrine

Gustavo Badaró:  Proposals to change the regime of illegal evidence in criminal proceedings . Badaro lawyers.

Rômulo de Andrade Moreira:  Brief outline regarding the non-existence of a general theory of the process .  jusbrasil.com.br.

Jurisprudence

Nullity of evidence arising from breach of banking secrecy by the tax administration without court authorization:  The data obtained by the Federal Revenue based on art. 6 of LC 105/2001, upon direct request to banking institutions within the scope of administrative tax proceedings without prior judicial authorization, cannot be used to support conviction in criminal proceedings ( REsp 1.361.174-RS, Reporting Min. Marco Aurélio Bellizze, judged on 6/3/2014 – Newsletter No. 543 ).

Use in criminal proceedings of information obtained by the Federal Revenue upon direct request to banking institutions:  The data obtained by the Federal Revenue based on art. 6 of LC 105/2001, upon direct request to banking institutions within the scope of administrative tax proceedings without prior judicial authorization, cannot be used in criminal proceedings, especially to support criminal proceedings ( RHC 41.532-PR, Reporting Min. Sebastião Reis Júnior, judged on 02/11/2014 – Newsletter No. 535 ).

Request by the Public Prosecution Service for bank information on a public administration entity:  Evidence obtained through a request from the Public Prosecutor’s Office for bank information owned by the municipal government for the purpose of investigating alleged crimes committed by public agents against the Public Administration (STJ , HC 308.493-CE, Judge Reynaldo Soares da Fonseca, judged on 10/20/2015, DJe 10/26/2015 – Newsletter 572 ). 

Constitutionality of the sharing of information between the RF and the authorities:  Provided that the legal requirements are met, it is constitutional for the Federal Revenue to share information about the economic and financial situation of the taxpayer with administrative authorities, in the interest of the Public Administration (ADI 2.386, ADI 2,390, ADI 2,397,  ADI 2,859, rel. Dias Toffoli, judgment on 2/24/2016, DJE of 10/21/2016  – Newsletter 815, Plenary). 

Bank information. Supply by financial institutions. Non-violation of privacy:  The provision, by financial institutions, of bank information on taxpayers to the tax administration, without the intermediation of the Judiciary, does not violate the fundamental right to privacy (ADI 2386, ADI 2390, ADI 2397, ADI 2859, rel. min  . Dias Toffoli, judgment on 2/24/2016, DJE of 10/21/2016  – Bulletin 815, Plenary). 

Proof produced by the Federal Revenue Service of Brazil. No need for judicial authorization:  Criminal conviction backed by evidence produced by the Federal Revenue Service of Brazil by obtaining information on financial transactions with banking institutions without prior judicial authorization for breach of bank secrecy is valid ( RHC 121.429, rel. min. Dias Toffoli, judgment on 4/19/2016, DJE of 5/31/2016  – Bulletin 822, Second Panel). 

Evidence shared by the foreign State. Use in investigations produced in Brazil:  Exerting from the investigated context – through the material shared by the foreign State – the alleged practice of various illicit conducts, nothing prevents the use of that evidence in investigations produced in Brazil, especially when the foreign authority did not impose any limitation on the scope of information and evidence shared, as it could have done, if that were the case ( Inq 4.146, rel. min. Teori Zavascki, judgment on 6/22/2016, DJE of 10/5/2016  – Newsletter 831 , Plenary). 

Home invasion without sufficient evidence vitiates the flagrante delicto related to drugs found: Drug trafficking. Flagrant. Home as an expression of the right to privacy. Inviolable Asylum. Constitutional exceptions. Restrictive interpretation. Home invasion by the police. Just cause need. The mere intuition of the police authority of possible trafficking practiced by an individual, based solely on his escape from a place supposedly known as a point of sale of drugs in the face of an imminent police approach, does not constitute just cause capable of authorizing home invasion (…) In the event that the accused he is in a place supposedly known as a drug sales point, and, when he sees police patrolling, he flees to his residence (for unknown reasons) and, as a result, is pursued by police, without, however, having a context facts from which it can be concluded (or, at least, suspicions have been founded), that criminal conduct also takes place inside the residence, the question of the legitimacy of police action, when invading the home, becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance ( becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance ( becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance (REsp 1.574.681-RS, Rel. Min. Rogério Schietti Cruz, unanimously, judged on 4/20/2017, DJe 5/30/2017 – Newsletter 606 ). 

Comment: This is an interesting case. The nullities of the investigation and the flagrante delicto do not affect the process (but may give rise to the lack of just cause for criminal action). However, in the judgment above, we are not facing the nullity of the arrest warrant in flagrante delicto itself, but of the arrest warrant that constitutes illicit evidence. The nullity of the record is due to it being illegal evidence. Nullities of the investigation and the flagrante delicto do not affect, in principle, the process, since the investigation and the process are distinct legal relations, the former having an administrative nature and the latter procedural. In the concrete case there is this effect. The nullity of the investigation, which stems from the fact that it is illegal evidence, reaches the process affecting its validity.

Request for bank details directly by the MP when the account is owned by the public authority:  The request for bank details directly by the Public Prosecutor’s Office is allowed, if the account is owned by the public authority and if the financial operations involve public resources ( RHC 133.118 , rel. min. Dias Toffoli, DJE of 9-3-2018 ). 

Illegality due to contamination and exceptions

Doctrine of the fruits of the poisoned tree:  Evidence derived from illicit acts is inadmissible, that is, when it is the result of illicit harvested. It is illicit proof by derivation. It’s called  the fruit of the poisoned tree theory.. It is accepted in paragraph 1 of the present device, when it prescribes that “evidence derived from illicit acts is also inadmissible”. The name of the theory in the USA, where criminal law has historically been mixed with religious precepts, which perhaps explains so many inconsistencies, seems to have arisen from a biblical precept: “Beware of false prophets, who come to you in sheep’s clothing, but inside they are ravenous wolves. By their fruits you will know them. Do you gather grapes from thorns or figs from thistles? So every good tree bears good fruit, but a bad tree bears bad fruit. A good tree cannot bear bad fruit, nor can a bad tree bear good fruit. Every tree that does not bear good fruit is cut down and thrown into the fire. Soon, by their fruits you will know them ′′ (Matthew 7:15-20). The origin of the thesis in the USA was in the Supreme Court of the United States, in the Siverthorne Lumber Co. vs. United States, in 1920.

Theories that water down the poison tree doctrine:  There are theories that water down the poison tree doctrine theory. They are based on the second part of paragraph 1 of the present device: “Evidence derived from illicit acts is also inadmissible,  except when the causal link between one and the other is not evidenced, or when the derivatives can be obtained by a source independent of the first ones ” . And in paragraph 2: “An independent source is considered to be that which, by itself, following the typical and usual procedures, typical of investigation or criminal instruction, would be capable of leading to the fact object of the evidence”. Among them, there is the  theory of the independent source  and the  execution of the inevitable discovery. According to the first theory, having two sources of proof, one illegal and the other legal, the latter can be accepted. According to the execution theory of inevitable discovery, illicit proof by derivation is valid if it would be discovered anyway, even without the original illicit proof. Both theories are covered by paragraphs 1 and 2 of article 158. It should be noted that the theory of independent source, the one in which, with two sources of evidence, one illegal and the other licit, the latter can be accepted, if lends itself easily to the practice of defrauding the law. After illicitly obtaining proof and knowledge of all the circumstances of the fact, it is not difficult to simulate and rig an investigation with a legitimate appearance through another source. That is why, in these cases, the circumstances that led the investigation to arrive at the lawful source must be clearly clarified. This, obviously, in case the illicit has not disappeared from the world.

Illicit evidence  pro reo : The production of evidence obtained illegally is authorized in the process, if it is favorable to the accused. Illicit evidence, if used in the defense, should not be removed from the case file, since the meaning of the process as a guarantee of the individual constitutes an elementary principle of criminal proceedings. The conviction of an innocent person on the grounds of protecting someone’s privacy is inadmissible. If the accused, himself, obtains evidence by prohibited means to prove his innocence, he acts in the legal exercise of the right of defense ( article 23, item III, of the CP ), or else, no other way of acting could be required of him ( unenforceability of other conduct).

Regarding anonymous crime news:  One of the purposes, among others, of the chain of custody of the evidence is to make it possible to certify that the evidence was not obtained illegally. Anonymous crime news is the wide open door for illicit evidence to enter. On this topic, see the heading  Anonymous crime news, breach of the chain of custody and illicit evidence  in comments on Article 5. 

Jurisprudence

Evidenced the absence of a causal link, there is no contamination of the evidence supporting the conviction:  Evidenced, by the ordinary instance, the absence of a causal link, there is no mention that the evidence declared illicit contaminated the evidence supporting the conviction (CPP , art. 157, paragraph 1) ( HC 116.931, rel. Min. Teori Zavascki, judgment on 3-3-2015, judgment published in the DJE of 5-8-2015  – Bulletin 776, Second Panel).

The impediment to the instruction of the process and in the courts

Impediment: To ensure the judge’s exemption, he cannot act in a process in which he is aware of the content of the evidence obtained illegally. It is the institute of impediment, when partiality is presumed. The prohibition of disembarking illicit evidence in criminal proceedings is constitutional: evidence obtained by illicit means is inadmissible in the process ( article 5, item LVI of the CF ). Articles 252 and 253 contain other causes of impediment. The impediment occurs when there is an obstacle (or prohibition) for the magistrate to continue acting in any feat. The caput of article 252 prohibits the judge from exercising jurisdiction in the case in which he is impeded.

The judge is also prevented from presiding over the instruction: Paragraph 5 of the present provision aims to ensure the impartiality of the judge. Knowing the content of illicit evidence causes the judge to be impeded. He will not be able to deliver the sentence or judgment, is the wording of paragraph 5. There is no point in disentangling the illicit evidence from the process. With the removal, it, the illicit evidence, leaves the process, but not the judge. It will remain in your memory. Their impartiality is compromised, which is why Article 252, when dealing with the causes of impediment, prohibits him from “exercising jurisdiction in the process”. The wording of article 252 is correct. This paragraph 5 must be interpreted systematically, that is, complemented by the caput of article 252: from the moment the judge becomes aware of the illegal evidence, he will not be able to exercise jurisdiction in the proceeding. The caput of article 252 must be interpreted extensively, to also cover the hypothesis of the present device. The reason is simple: partial judge cannot collect evidence. He will reap partially.

Constitutionality of the device

Protection of impartiality: Articles 252, 253 and 254 and the present paragraph 5 of article 157 of the CPP contain federal norms that protect the principle of impartiality. Article 8, paragraph 1 of the Pact of San José , Costa Rica stipulates that “everyone has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent and impartial judge or tribunal”. . Is the impartiality of the judge a constitutional principle? Apparently no. But is. Article 95 of the CF, in its items I to III, by granting judges the guarantees of tenure, irremovability and irreducibility of salaries, did so precisely to protect the impartiality of the jurisdiction. The principles of law are not always expressed. They may be implied. This is the case of the principle of impartiality. Therefore, the principle of impartiality is constitutional, being contained and safeguarded in these three guarantees of the judge.

The impediment applies to court judges:It is not just the judge of first instance who is subject to the impediment of this paragraph 5. Court judges are too. Once any magistrate, at the trial, identifies illegal evidence in the records, he must expose the situation to the others, followed by the vote. This magistrate should, if possible, limit himself to exposing the reasons why the evidence is illegal, that is, how it was obtained, without, however, entering into the content of the evidence, since all members of the Court who know the content of the evidence illicit are prohibited. The illicit evidence must be removed from the records, and all other evidence and consequential acts annulled. Once the records have been downloaded, another judge, other than the one who judged the case, must resume the process. If part of the instruction, due to the extension of the effects of the recognition of probative unlawfulness, is annulled, the new judge must redo it. This interpretation cannot be surprising. It is exactly these measures that must be taken if any of the causes of impediment to thearticle 252 : the judge who ruled in the first instance in the annulled process cannot return to act in the process. The rule is: a judge who knows the content of illegal evidence cannot instruct or judge. The ban must be enforced in all its terms.

The principle of the natural judge available to the party. Unconstitutionality of the device? Paragraph 5 of the present device creates the possibility that the party has a disposition on the natural judge ( article 5, item XXXVII of CF). Does this result in the unconstitutionality of the device? An illustrative example follows. The party is not satisfied with the judge presiding over the case. He realizes that the judge is unfavorable to his thesis. Can it, despite going against the law, remove the judge, presenting illegal evidence in the process? It may happen. Illicit, unethical, immoral behavior, but still a possibility. If there is this possibility of provision on the part of the constitutional principle of the natural judge, is paragraph 5 unconstitutional? The answer is no. And the reason is that, in the counterflow of the constitutional principle of the natural judge, there is the principle, also constitutional, of impartiality (the constitutionality of the principle of impartiality is exposed in the title Protection of impartiality, above). These are two norms at the same hierarchical level. The agreement between them results in the impediment of the judge who knows illegal evidence. There is no way to insert the principle of the natural judge on the infraconstitutional norm to consider it illegal. There is the presumption that the norm contains within itself the pact between the constitutional principles. The legislator preferred to run the risk of procedural disloyalty rather than abandon the accused to a partial trial and trial. The rule was conceived in consideration of constitutional impartiality. Infraconstitutional rules derive from constitutional norms and principles that are often in opposition. There are occasions when the law chooses the preponderance of one principle over another. That choice must be kept intact. Bringing a principle to bear on the norm to remove another that is included in it is not an interpretation or application of the law, but a violation of the law. The interpreter is not authorized to modify the will of the law, which often represents a pact between principles. Were it not so, there would be no laws, only principles, with which one could do and say whatever one wanted. It remains to be seen whether there is a solution to the problem of the possibility of the party removing the judge that he does not like. There is a. Only one. The effective performance of institutions’ correctional bodies. It is necessary to recognize that the current system deserves improvement, because, at the current stage, what exists is self-control, that is, no control at all. The interpreter is not authorized to modify the will of the law, which often represents a pact between principles. Were it not so, there would be no laws, only principles, with which one could do and say whatever one wanted. It remains to be seen whether there is a solution to the problem of the possibility of the party removing the judge that he does not like. There is a. Only one. The effective performance of institutions’ correctional bodies. It is necessary to recognize that the current system deserves improvement, because, at the current stage, what exists is self-control, that is, no control at all. The interpreter is not authorized to modify the will of the law, which often represents a pact between principles. Were it not so, there would be no laws, only principles, with which one could do and say whatever one wanted. It remains to be seen whether there is a solution to the problem of the possibility of the party removing the judge that he does not like. There is a. Only one. The effective performance of institutions’ correctional bodies. It is necessary to recognize that the current system deserves improvement, because, at the current stage, what exists is self-control, that is, no control at all. Only one. The effective performance of institutions’ correctional bodies. It is necessary to recognize that the current system deserves improvement, because, at the current stage, what exists is self-control, that is, no control at all. Only one. The effective performance of institutions’ correctional bodies. It is necessary to recognize that the current system deserves improvement, because, at the current stage, what exists is self-control, that is, no control at all.

Inviolability of correspondence, telegraphy and telephone communications

Inviolability of correspondence, telegraphy, data and telephone communications:  Article  5, item XII, of the CF , states: “The secrecy of correspondence and telegraphic communications, data and telephone communications is inviolable, except in the last case , by court order, in the cases and in the manner established by law for the purposes of criminal investigation or criminal procedural instruction”. The “last case ”  referred to by the provision, which authorizes interception with a court order ,  covers data communications and telephone communications. 

The inviolability of correspondence and telegraphic communications:  The  CF, in article 5, item XII, in its literality, establishes the absolute inviolability of correspondence and telegraphic communications. However, some decisions have applied the principle of proportionality to the species. A balance is made between the principles that govern the constitutional normative order. In more serious crimes, among which are kidnapping, robbery and others, in which fundamental legal rights such as life and liberty are violated, considering the serious and dramatic consequences of the crime produced, some decisions maintain that it is possible to make the constitutional principles that protect these fundamental legal interests to the detriment of the rule of illegality of evidence, and thus the interception of correspondence and telegraphic communications is authorized, to make them count as evidence in criminal proceedings.

Prisoner correspondence:  Contact with the outside world through written correspondence from the arrested defendant may be suspended or restricted ( article 41, item XV, paragraph 1, of Law n. 7.210/84 ).

Doctrine

Alexandre de Moraes: Exceptionality in the renewal of the deadline for wiretapping . Conjure 

Aury Lopes Jr and Maciel Colli:  The obsolescence of telephone interception in the post-internet era . Conjure

Rogerio Schietti Cruz:  Brief Analysis of Law 9.296/96 . Metajus.

Jurisprudence

Anonymous denunciation:  “(…) the jurisprudence of this Supreme Court is based on the sense that the anonymous denunciation does not have the power to invalidate the police investigation, when the investigations make use of other diligences taken to verify the delatio criminis , as in the  case of kind, or when in the criminal action the conviction is based on a set of evidence collected under the scrutiny of the adversarial system and full defense (…)” ( Min. RICARDO LEWANDOWSKI – STF – HC 133148 ).

Data obtained through breach of secrecy must be kept confidential:  Data obtained through breach of banking, telephone and tax secrecy must be kept under reserve, making public knowledge unfeasible ( MS 25.940, rel. min. Marco Aurélio, DJE of 21 – 9-2018 ).

Forced entry into the home and Theme 280 of the STF:  In the judgment of RE n. 603,616 RG/RO, under the general repercussion regime, the Federal Supreme Court established the thesis that “the forced entry into a home without a court order is only lawful, even at night, when supported by well-founded reasons, duly justified a posteriori, that indicate that a situation of flagrante delicto has occurred inside the house, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed” ( Theme 280/STF ).

Anonymous denunciation and home invasion. Drugs:  The existence of an anonymous complaint of the practice of drug trafficking, added to the accused’s flight when he saw the police, by themselves, do not constitute well-founded reasons to authorize the police to enter the accused’s home without his consent or without a court order ( RHC 89.853-SP , Rel. Min. Ribeiro Dantas, Fifth Panel, unanimously, judged on 02/18/2020, DJe 03/02/2020).

Interception of data, telephone communications and crime

Interception of data and telephone communications:  The interception of data and telephone communications is regulated by  Law n. 9,296/96. The interception will depend on the order of the competent judge of the main action, under secrecy of justice. The provisions of that law apply to the interception of the flow of communications in information technology and telematics systems. Interception of telephone communications will not be accepted when any of the following hypotheses occur: I – there is no reasonable evidence of authorship or participation in a criminal offense; II – the test can be done by other available means; III – the fact investigated constitutes a criminal offense punishable, at most, with a prison sentence. In any case, the situation that is the object of the investigation must be clearly described, including the indication and qualification of those investigated, unless it is manifestly impossible, duly justified. The interception of telephone communications may be determined by the judge, ex officio or upon request: I – from the police authority, in criminal investigations; II – the representative of the Public Prosecutor’s Office, in the criminal investigation and in the criminal procedural instruction. According to article 5 of that law, the due diligence cannot exceed a period of fifteen days, renewable for the same period, once the indispensability of the evidence has been proven. However, jurisprudence has allowed further extensions. The recording must be transcribed. The recording that is not of interest to the evidence must be, after hearing the parties, rendered unusable by court decision, during the investigation, the procedural instruction or after this, due to the request of the Public Ministry or the interested party. According to article 5 of that law, the due diligence cannot exceed a period of fifteen days, renewable for the same period, once the indispensability of the evidence has been proven. However, jurisprudence has allowed further extensions. The recording must be transcribed. The recording that is not of interest to the evidence must be, after hearing the parties, rendered unusable by court decision, during the investigation, the procedural instruction or after this, due to the request of the Public Ministry or the interested party. According to article 5 of that law, the due diligence cannot exceed a period of fifteen days, renewable for the same period, once the indispensability of the evidence has been proven. However, jurisprudence has allowed further extensions. The recording must be transcribed. The recording that is not of interest to the evidence must be, after hearing the parties, rendered unusable by court decision, during the investigation, the procedural instruction or after this, due to the request of the Public Ministry or the interested party.

Criminal interceptions: The matter is governed by Law n. 9,296/96. It is a crime to intercept telephone, computer or telematics communications, promote environmental listening or break the secret of Justice, without judicial authorization or for purposes not authorized by law. It is also a crime if the judicial authority determines the execution of interception for purposes not authorized by law. It is also a crime to capture electromagnetic, optical or acoustic signals from the environment for investigation or criminal investigation without judicial authorization, when required. There is no crime if the capture is carried out by one of the interlocutors. 

Doctrine

The Art of Digital Forensics. “ Data Security Director’s interview with the Olhar Digital Program.

Carlos  Eduardo Thompson Flores Lenz :  New Criminal Issues. Telephone tapping in criminal proceedings . TRF4 doctrine magazine.

Christiano Leonardo Gonzaga Gomes:  The protection of telematic communication and terrorism: do we need new legislation or is Law n. 9,296/96?   aplicacao.mpmg.mp.br.

Eduardo Luiz Santos Cabette:  The new crime of Computer Device Invasion . Conjure

Gustavo Badaró:  Interception of Telephone and Telematic Communications: Limits to the Advancement of Technology . Badaro lawyers.

Gustavo Badaró:  Interception of Telephone and Telematic Communications: Limits in the face of the advancement of technology . Badaro lawyers.

Lydie Jorge Batista :  Malware as a means of obtaining evidence in criminal proceedings .  Law School. University of Lisbon. 

Rodrigo Alves Carvalho:  Methodology for interception of encrypted data applied in criminal investigations . University of Brasilia.

Doctrine – Geolocation

Bruno Carvalho Pereira :  The GPS geolocation system in Portuguese criminal procedure . repository.ul.pt. 2016.

Mara Érica Rupia Lopes:  Data protection and geolocation mechanisms .  Law School. University of Lisbon.

Raquel Sofia Ramos Monteiro :  The defense of the admissibility of location via the GPS system within the scope of the so-called hidden means of criminal investigation in the framework of Portuguese Criminal Procedure . repository.ul.pt.

Jurisprudence:

Extensions of telephone interception:  (…) once it has been demonstrated that the initial legitimizing reasons for the interception persist and the factual context outlined by the requesting party indicates its need as the only means of proof to elucidate the criminal fact, the jurisprudence of this Supreme Court has admitted the reasonable extension of the measure, provided that the period of 15 days between each of them is respected, which does not constitute disrespect to art. 5 of Law 9.296/1996 ( Minister RICARDO LEWANDOWSKI – STF – HC 133148 ).

It is fully legal to substantiate per relationem the decision extending telephone interception:  It is fully legal to substantiate per relationem the decision extending telephone interception – in which the magistrate uses excerpts from a previous decision or ministerial opinion as a reason for deciding – when the present factual situation that justifies the extension of the breach of secrecy, either due to the nature of the investigation or the complexity of the criminal conduct to be monitored ( HC 119.770/BA, rel. min. Gilmar Mendes, judged on 4/8/2014, judgment published in the DJE of 22-8-2014  – Newsletter 742, Second Panel).

The full transcription of the intercepted conversations is not necessary, provided that full access is allowed to the investigated person:  The full transcription of the intercepted conversations is not necessary, provided that the investigated person is given full access to all captured conversations, as well as the entirety of the material is made available that, directly and indirectly, refer to that, without prejudice to the magistrate’s power to determine the transcription of all or parts of the audio ( Inq 3.693/PA, rel. min. Cármen Lúcia, judged on 4/10/2014, judgment published in the DJE of 10-30-2014  – Newsletter 742, Plenary).

Telephone interception does not need to be prosecuted:  Failure to prosecute telephone interception, in violation of art. 8, caput, of Law 9,296/19964, does not allow the evidence to be considered illegal ( HC 128,102, rel. min. Marco Aurélio, judgment on 12/9/2015, decision pending publication  – Newsletter 811, First Panel).

 Data obtained with telephone interception can be used in criminal prosecution different from the one in which the judicial authorization for interception was obtained: HC 128.102, rel. Marco Aurélio, judgment on 9-12-2015, decision pending publication  – Newsletter 811, First Panel).

Partial transcription of interceptions may be carried out provided that access to the entirety of the content is ensured:  It is legitimate to transcribe telephone interceptions only of the parts that are relevant to the facts narrated in the complaint, without prejudice to wide access to the entirety of the electronic media or the records interested parties ( HC 109.708, rel. Min. Teori Zavascki, judgment on 23-6-2015, judgment published in the DJE of 3-8-2015  – Newsletter 791, Second Panel).

The change in jurisdiction does not invalidate the decision on telephone interception determined by the court initially competent to process the case. Source: Jurisprudence in theses (STJ).

Judgments:

AgRg in REsp 1492472/PR, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 10/04/2018, DJE 10/15/2018

HC 349583/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/15/2016, DJE 09/26/2016

RHC 57573/RS, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/18/2016, DJE 08/29/2016

RHC 28062/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 08/02/2016, DJE 08/19/2016

Apn 675/GO, Rel. Minister Nancy Andrighi, SPECIAL COURT, judged on 11/18/2015, DJE 02/02/2016

HC 261664/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 09/15/2015, DJE 09/30/2015

See also the journals (updated to date of publication):

Jurisprudence Information No. 0411, published on October 16, 2009.

Article 6 of Law no. 9,296/1996 does not restrict civil police powers to carry out judicially ordered telephone interception. Source: Jurisprudence in theses (STJ).

Judgments:

RHC 78743/RJ, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 11/13/2018, DJE 11/22/2018

RHC 90125/SC, Rel. Justice Nefi Cordeiro, Sixth Panel, judged on 08/07/2018, DJE 08/15/2018

RHC 62067/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/06/2018, DJE 03/14/2018

RHC 67384/ES, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 02/27/2018, DJE 03/05/2018

RHC 58282/SP, Rel. Justice Ericson Maranho (Judge summoned from the TJ/SP), Sixth Panel, judged on 09/01/2015, DJE 10/07/2015

RHC 51487/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 06/23/2015, DJE 09/24/2015

It is possible to determine telephone interceptions based on an anonymous complaint, provided that it is corroborated by other elements that confirm the need for the exceptional measure. Source: Jurisprudence in theses (STJ).

Judgments:

RHC 70560/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 12/04/2018, DJE 12/14/2018

AgRg in AREsp 988527/RS, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/20/2018, DJE 09/28/2018

HC 443331/SP, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 09/18/2018, DJE 10/02/2018

AgRg in REsp 1690840/ES, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 06/19/2018, DJE 06/29/2018

RHC 53541/RJ, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/12/2017, DJE 09/20/2017

RHC 64910/RS, Rel. Minister Antonio Saldanha Palheiro, Sixth Panel, judged on 04/04/2017, DJE 04/17/2017

See also the journals (updated to date of publication):

Jurisprudence Information No. 0487, published on November 18, 2011.

Telephone interception will only be granted when there are no other means of proof available at the time in which the invasive measure was requested, with the burden of the defense demonstrating violation of the provisions of article 2, item II, of Law n. 9.296/1996. Source: Jurisprudence in theses (STJ).

Judgments:

RHC 61207/PR, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 09/25/2018, DJE 10/08/2018

AgRg on RMS 52818/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/25/2018, DJE 10/03/2018

RHC 83320/DF, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/11/2018, DJE 09/19/2018

HC 276132/PR, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 08/18/2015, DJE 09/01/2015

HC 148413/SP, Rel. Justice Sebastião Reis Júnior, Sixth Panel, judged on 08/21/2014, DJE 09/01/2014

Monocratic Decisions

AREsp 700987/RO, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 09/03/2018, published on 09/10/2018

It is unnecessary to carry out expertise to identify the voice captured in telephone interceptions, except when there is a plausible doubt that justifies the measure. Source: Jurisprudence in theses (STJ).

Judgments:

HC 453357/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/16/2018, DJE 08/24/2018

AgRg in HC 445823/PR, Rel. Minister Felix Fischer, Fifth Panel, judged on 08/16/2018, DJE 08/21/2018

HC 409551/RJ, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/05/2017, DJE 10/11/2017

AgRg in HC 413842/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 10/03/2017, DJE 10/11/2017

REsp 1340069/SC, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/15/2017, DJE 08/28/2017

REsp 1501855/PR, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 05/16/2017, DJE 05/30/2017

Evidence obtained through telephone interception for the investigation of an offense punishable by detention, if connected with another crime punishable by imprisonment, is legitimate. Source: Jurisprudence in theses (STJ).

Judgments:

HC 366070/RS, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 11/08/2018, DJE 11/23/2018

AgRg in REsp 1717551/PA, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/24/2018, DJE 05/30/2018

AgRg in EDcl in HC 293680/PR, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 05/15/2018, DJE 05/29/2018

RHC 48112/DF, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 09/13/2016, DJE 09/21/2016

HC 173080/RS, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 10/27/2015, DJE 12/04/2015

RHC 56744/RS, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 06/02/2015, DJE 06/10/2015

The guarantee of secrecy of communications between lawyer and client does not confer immunity for the commission of crimes in the practice of law, being lawful the collection of evidence in telephone interception duly authorized and motivated by the judicial authority. Source: Jurisprudence in theses (STJ).

Judgments:

RMS 58898/SE, Rel. Minister Laurita Vaz, Sixth Panel, judged on 11/08/2018, DJE 11/23/2018

RHC 92891/RR, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 09/25/2018, DJE 10/03/2018

RHC 73498/DF, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/14/2018, DJE 08/23/2018

REsp 1465966/PE, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 10/10/2017, DJE 10/19/2017

AgRg in AREsp 457522/SC, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 11/10/2015, DJE 11/25/2015

RHC 51487/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 06/23/2015, DJE 09/24/2015

It is unnecessary to carry out expertise to identify the voice captured in telephone interceptions, except when there is a plausible doubt that justifies the measure. Source: Jurisprudence in theses (STJ).

Judgments:

AgRg in AREsp 1136157/GO, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 09/04/2018, DJE 09/13/2018

HC 453357/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/16/2018, DJE 08/24/2018

AgRg in HC 445823/PR, Rel. Minister Felix Fischer, Fifth Panel, judged on 08/16/2018, DJE 08/21/2018

HC 409551/RJ, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/05/2017, DJE 10/11/2017

AgRg in HC 413842/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 10/03/2017, DJE 10/11/2017

REsp 1340069/SC, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/15/2017, DJE 08/28/2017

See also the journals (updated to date of publication):

Jurisprudence Information No. 0464, published on February 25, 2011.

There is no need to record the dialogues subject to telephone interception, in their entirety, since Law n. 9,296/1996 does not make any requirement in this regard. Source: Jurisprudence in theses (STJ).

Judgments:

HC 422642/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 09/25/2018, DJE 10/02/2018

AgRg in AREsp 1301242/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/11/2018, DJE 09/17/2018

AgRg in REsp 1374450/SP, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 09/11/2018, DJE 09/17/2018

AgRg in AREsp 1136157/GO, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 09/04/2018, DJE 09/13/2018

RHC 90435/PB, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 06/12/2018, DJE 06/19/2018

RHC 92164/RJ, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/01/2018, DJE 03/07/2018

Due to the lack of provision in Law n. 9,296/1996, it is unnecessary for official experts to record the tapping. Source: Jurisprudence in theses (STJ).

Judgments:

AgRg in AREsp 583598/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 06/12/2018, DJE 06/22/2018

AgRg in REsp 1322181/SC, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 12/12/2017, DJE 12/18/2017

REsp 1501855/PR, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 05/16/2017, DJE 05/30/2017

HC 258763/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 08/07/2014, DJE 08/21/2014

AgRg in REsp 1233396/DF, Rel. Minister Laurita Vaz, Fifth Panel, judged on 06/18/2013, DJE 07/01/2013

REsp 1134455/RS, Rel. Minister Gilson Dipp, Fifth Panel, judged on 02/22/2011, DJE 03/09/2011

End-to-end encryption and technical impossibility: The application of astreintes is illegal, due to non-compliance with a court decision to breach data secrecy, due to the technical impossibility of using end-to-end encryption ( RMS 60.531-RO , Rel. Min. . Nefi Cordeiro, Reporting Judge Ribeiro Dantas, Third Section, by majority, judged on 12/09/2020, DJe 12/17/2020).

Enablement of the police authority’s chip: It is illegal to break telephone secrecy by enabling  the police authority’s chip to replace that of the investigated line holder ( REsp 1.806.792-SP , Reporting Minister Laurita Vaz, Sixth Panel, unanimously , judged on 05/11/2021).

Routines relating to telephone interception within the scope of the Public Ministry: Resolution 36/2009 of the National Council of the Public Ministry (CNMP) is constitutional, which regulates and standardizes routines related to telephone interception procedures within the scope of the Public Ministry. CNMP Resolution 36/2009 does not deal with the imposition of a ministerial line of action – which could violate functional independence –, but only with a minimum formal standardization of requests for extension of telephone interception ( ADI 4.263 , rel. min . Roberto Barroso, DJE of 7-30-2020).

Video

The Art of Digital Forensics:  Data Security Director’s interview with the Olhar Digital Program.

Serendipity and interception at the request of the defense

Evidence of another crime in data or telephone interception:  According to  article 2, sole paragraph, of Law n. 9,296/96, the situation under investigation must be clearly described. Combining this norm with the other items of that same article, it is concluded that telephone interception must have as its object a specific crime. The question that arises is: if the intercepted telephone conversation brings news of other crimes and evidence that are not directly or indirectly related to the investigated crime, can this evidence be used to initiate a new criminal investigation? The answer must be positive. Similarly, if a police officer, by simple chance, in the course of an investigation of a given crime, comes across evidence of another crime, the collection and investigation of such evidence is lawful. This interception has been called serendipity. Serendipity concerns fortunate discoveries made by chance.

Interception at the defense’s request:  The law does not provide for the defense to request data or telephone interception. In view of the principle of broad defense, this request and the interception are appropriate. 

Authorized data or telephone interception and communication with the defender:  If, during an interception of authorized communication, whatever it may be, a conversation enters between the investigated person and his lawyer, the interception must be cut off, or eliminated afterwards, because, in the wording of the Advocacy Statute ( article 7, items II and III of Law n. 8.906/94 ), the lawyer’s rights are the inviolability of his written, electronic, telephone and telematic correspondence, provided that they are related to the practice of law, as well as communicate with your customers privately.

E-mail messages:  Case law differs as to whether e-mail messages constitute correspondence or data communication. If they are data, they can be intercepted based on  Law n. 9.296/96 , and, if they are correspondence, it is necessary to examine the applicability of the principle of proportionality, to authorize the interception (see subtitle  The inviolability of correspondence and telegraphic communications  in the title Inviolability of correspondence, telegraphy and telephone communications , in notes to this device).

Jurisprudence

Fortuitous finding of evidence in the fulfillment of a search and seizure warrant at a law firm:  It is lawful to seize, at a law firm, drugs and firearms, in theory belonging to a lawyer, in the event that another lawyer has witnessed the compliance with the diligence at the request of the police, even though the search and seizure warrant was issued to seize a firearm allegedly belonging to an intern at the office – and not to the lawyer – and even though the said warrant does not expressly indicate a representative of the OAB location for monitoring the due diligence ( STJ, RHC 39.412-SP, Judge Felix Fischer, judged on 3/3/2015, DJe 3/17/2015 – Newsletter 557 ). 

Environmental recording, home search, cell phone and expertise

Environmental recording:  Environmental recording is one in which, for example, one of the interlocutors performs it without the knowledge of the others. The recording is not illegal if it was made to exercise a legitimate right of defense in criminal proceedings. If a third person records an intimate conversation between two people, without judicial authorization, this recording is illegal as a means of proof, unless the recording was made for defense purposes in criminal proceedings.

Regulation by Law n. 9,296/1996 :For investigation or criminal instruction, the judge may authorize, at the request of the police authority or the Public Ministry, the environmental capture of electromagnetic, optical or acoustic signals, when the evidence cannot be done by other available and equally effective means; and there is reasonable evidence of authorship and participation in criminal offenses whose maximum penalties exceed 4 (four) years or in related criminal offenses. Environmental capture cannot exceed a period of 15 (fifteen) days, renewable by court decision for equal periods, if the indispensability of the means of proof is proven and when permanent, habitual or continuous criminal activity is present. It is a crime to intercept telephone, computer or telematics communications, promote environmental listening or break the secret of Justice, without judicial authorization or with purposes not authorized by law. It is also a crime if the judicial authority determines the execution of interception for purposes not authorized by law. It is also a crime to capture electromagnetic, optical or acoustic signals from the environment for investigation or criminal investigation without judicial authorization, when required. There is no crime if the capture is carried out by one of the interlocutors. The penalty will be applied twice to public officials who fail to comply with the determination of secrecy of investigations involving environmental capture or reveal the content of recordings while maintaining judicial secrecy. It is also a crime if the judicial authority determines the execution of interception for purposes not authorized by law. It is also a crime to capture electromagnetic, optical or acoustic signals from the environment for investigation or criminal investigation without judicial authorization, when required. There is no crime if the capture is carried out by one of the interlocutors. The penalty will be applied twice to public officials who fail to comply with the determination of secrecy of investigations involving environmental capture or reveal the content of recordings while maintaining judicial secrecy. It is also a crime if the judicial authority determines the execution of interception for purposes not authorized by law. It is also a crime to capture electromagnetic, optical or acoustic signals from the environment for investigation or criminal investigation without judicial authorization, when required. There is no crime if the capture is carried out by one of the interlocutors. The penalty will be applied twice to public officials who fail to comply with the determination of secrecy of investigations involving environmental capture or reveal the content of recordings while maintaining judicial secrecy. There is no crime if the capture is carried out by one of the interlocutors. The penalty will be applied twice to public officials who fail to comply with the determination of secrecy of investigations involving environmental capture or reveal the content of recordings while maintaining judicial secrecy. There is no crime if the capture is carried out by one of the interlocutors. The penalty will be applied twice to public officials who fail to comply with the determination of secrecy of investigations involving environmental capture or reveal the content of recordings while maintaining judicial secrecy.  

Nocturnal home search and evidence obtained through illegal arrest:  These are illegal.

Defendant who denies the authenticity of filming or recording:  Expertise must be determined.

Examination of cell phone content:  Judicially unauthorized invasion of  WhatsApp data and conversations  by the police, in case of arrest in flagrante delicto, violates the constitutional right to privacy. On access to cell phone and computer content in cases of arrest in flagrante delicto and search and seizure warrant, see case law under the title Environmental recording, home search, cell phone and expertise in comments to article 157.

Doctrine

Alexandra Lemos Ramos:  The principle of open administration versus the principle of personal data protection . repository.ul.pt.

Aury Lopes Jr and Alexandre Morais da Rosa:   Validity criteria for searching the prisoner’s cell phone (WhatsApp) . Conjure

Aury Lopes Jr. and Alexandre Morais da Rosa:  Searching cell phones is only possible with court authorization .  Conjure

Francisco Sannini Neto : Phone tapping does not require a court order to be carried out . Conjure  

Gustavo Badaró:  Proposals to change the regime of illegal evidence in criminal proceedings . Badaro lawyers.

Jurisprudence:

Search and seizure warrant and feasibility of accessing cell phone content:  Obtaining the content of conversations and messages stored on cell phones or  smartphones  is not subject to the dictates of Law 9296/96. Access to content stored on a cell phone or  smartphone , when the search and seizure of these devices is legally determined, does not offend art. 5, item XII, of the Constitution of the Republic, since the secrecy to which the aforementioned constitutional precept refers is in relation to the telephone or telematics interception itself, that is, it is of data communication, and not of the data itself. On the assumption of the seizure order of a cell phone or  smartphone access to the data stored therein, under penalty of the search and seizure resulting in an irritating measure, given that the device devoid of content simply does not have the potential to be used as criminal evidence ( MINISTER FELIX FISCHER – STJ – APPEAL IN HABEAS  CORPUS  No. 75,800 ).

Judicially authorized computer seizure and feasibility of accessing its content:  Obtaining data through the seizure of the physical computer base, legally authorized, does not offend art. 5, item XII, of the Constitution of the Republic, since the secrecy to which the aforementioned constitutional precept refers is in relation to the telematic interception itself, that is, it concerns the communication of data and not the data itself, even when stored in computer  (Minister Sepúlveda Pertence – STF – RE 418416-8 ).

Imprisonment in flagrante delicto and illegality of accessing cell phone data: Illicit is the accession of data, as well as Whatsapp  conversations , obtained directly by the police from cell phones seized in the act, without prior judicial authorization. Nullity of evidence obtained from the patient’s cell phone without court authorization ( Minister Nefi Cordeiro – STJ – RHC n. 51.531 ).

Arrest in flagrante delicto and legality of examination of cell phone data: If there is arrest in flagrante delicto, the analysis of telephone records of seized cell phones is not illegal. Telephone communication and telephone records should not be confused, which even receive different legal protection. The clause of Article 5, XII, of the CF cannot be interpreted in the sense of data protection as a record, registration deposit. The constitutional protection is of the data communication and not of the data. According to article 6 of the CPP, it is the duty of the police authority to collect material proving the commission of the criminal offense. When proceeding with the search in the electronic agenda of the duly seized devices, an indirect material means of evidence, the police authority, fulfilling its mister, sought, solely,Minister Gilmar Mendes – STF –  habeas corpus  91.867 ).

Use of telephone recording as evidence of a crime against sexual freedom:  In proceedings that investigate the alleged practice of a sexual crime against an absolutely incompetent teenager, it is admissible to use evidence extracted from a telephone recording made at the request of the victim’s mother, on her telephone terminal , even if technical assistance from a private detective was requested to capture the conversations (Resp 1.026.605-ES, Judge Judge Rogerio Schietti Cruz, judged on 5/13/2014 – Newsletter No. 543).

Informing the press about meetings under investigation that are subject to a controlled investigation, as well as alerting them to the date of compliance with search and seizure warrants, constitutes a crime of breach of functional secrecy: Informing journalists about an alleged meeting to be held between third parties  – that are investigated in a given police operation –, in which “controlled police action” would occur, constitutes a breach of functional secrecy (CP, art. 325, caput ). In the same sense, it characterizes a crime of violation of functional secrecy, in the qualified form (CP, art. 325, § 2º), to alert journalists about the date of execution of search and seizure warrants ( AP 563/SP, rel. min. Teori Zavascki, judged on 21-10-2014, judgment published in the DJE of 28-11-2014  – Newsletter 764, Second Panel).

 Environmental recording by one of the interlocutors is considered lawful when there is no legal reason for secrecy or reservation of the conversation of the conversation ( AC 4.036 MC-REF  and AC 4.039 MC-REF,  rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending publication, respectively  – Newsletter 809 , Second Class).

Arrest in flagrante delicto and extraction of data and recorded conversations on whatsapp. Nullity:  Without prior judicial authorization, the evidence obtained by the police through the extraction of data and conversations recorded on whatsapp present on the cell phone of the alleged perpetrator of the criminal act is null, even if the device was seized at the time of the arrest in flagrante delicto ( STJ, RHC 51.531-RO, Reporting Justice Nefi Cordeiro, judged on 4/19/2016, DJe 5/9/2016 – Newsletter n. 583 ).

Search and seizure of a cell phone or smartphone determined in court. Access to data:  Once the search and seizure of a cell phone or smartphone has been determined in court, access to data stored in the apprehended device is lawful, notably when said decision has expressly authorized it (STJ, RHC 75.800-PR, Reporting Min. Felix Fischer , judged on 9/15/2016, DJe 9/26/2016 – Newsletter n. 590).

Cell phone delivered by the victim’s wife (deceased). Validity of the test:  Data and conversations recorded on whatsapp. Device owned by the deceased victim. There is no illegality in the investigation of a cell phone device by the police, without prior judicial authorization, in the event that its owner – the victim – was killed, and the said telephone was handed over to the police authority by his wife (STJ – HC 86.076- MT , Reporting Justice Sebastião Reis Júnior, Reporting Justice Rogerio Schietti Cruz, by majority, judged on 10/19/2017, DJe 12/12/2017  (Informative 617).

Evidence obtained without court authorization of a conversation carried out using the hands-free function of an addicted cell phone at home: Drug trafficking. Evidence obtained from a conversation carried out using the hands-free function of the suspect’s cell phone. Doubts about consent. Lack of court authorization. Found illegality. Without the defendant’s consent or prior judicial authorization, the evidence, coercively collected by the police, of a conversation held by the investigated person with a third person on a cell phone, through the “hands-free” feature, which led to the arrest of the crime of illicit drug trafficking (…) In the present case, although nothing illegal had been found in the possession of the accused, the proof of trafficking was obtained in flagrant violation of the constitutional right to non-incrimination, since he was compelled to reproduce, against himself , conversation held with a third person through the cell phone’s hands-free system, which led the police to his residence and culminated in the collection of all the narcotic material in question. Thus, we are faced with a situation where the evidence is contaminated, in view of the provisions of the essence of the theory of the fruits of the poisonous tree, enshrined in art. 5, item LVI, of the Federal Constitution, which proclaims the stain of evidence, supposedly considered licit and admissible, but obtained from others declared null due to the illicit way of its collection (REsp 1.630.097-RJ, Report Min. Joel Ilan Paciornik, unanimously, judged on 4/18/2017, DJe 4/28/2017 – Newsletter 603 ).

Evidence collected through access to data stored on the cell phone, related to text messages, SMS, conversations through applications (WhatsApp), and obtained directly by the police, without prior judicial authorization, is illegal. Source: Jurisprudence in theses (STJ).

Judgments:

HC 433930/ES, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/19/2018, DJE 06/29/2018

REsp 1727266/SC, Rel. Minister Jorge Mussi, Fifth Panel, judged on 06/05/2018, DJE 06/15/2018

HC 422299/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 04/24/2018, DJE 05/02/2018

RHC 090276/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/13/2018, DJE 03/21/2018

REsp 1701504/SC, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 02/27/2018, DJE 03/20/2018

HC 392466/CE, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 12/12/2017, DJE 03/12/2018

Environmental recording: The innovations of the Anti-Crime Package in Law n. 9,296/1996 did not change the understanding that evidence consisting of environmental recording carried out by one of the interlocutors without knowledge of the other is lawful ( HC 512.290-RJ , Reporting Min. Rogerio Schietti Cruz, Sixth Panel, unanimously, judged on 18/ 08/2020, DJe 08/25/2020).

Agent Infiltration

Infiltration of police officers: It finds regulation in Law n. 12,850/2013 (Law that provides for criminal organization). The infiltration of police agents in investigative tasks, represented by the police chief or requested by the Public Ministry, will be preceded by detailed, motivated and confidential judicial authorization. It is authorized for a period of up to 6 (six) months, without prejudice to eventual renewals, provided its need is proven.

Virtual infiltrated agents: The action of virtual infiltrated police agents is allowed, in order to investigate the crimes provided for in Law 12.850/2013 and related ones, committed by criminal organizations, provided that their need is demonstrated and the scope of the tasks of the agents indicated. police officers, the names or nicknames of the investigated persons and, when possible, the connection or registration data that allow the identification of these persons. It is not a crime for an agent to conceal his or her identity in order to collect evidence of authorship and materiality of crimes via the internet.

Inspection by the judge and MP: According to article 10-A of Law n. 12.850/2013, during the course of the police investigation, the chief of police may order his agents, and the Public Ministry and the competent judge may request, at any time, a report on the infiltration activity. Information on the infiltration operation will be forwarded directly to the judge responsible for authorizing the measure, who will ensure its secrecy. Single paragraph. Before the conclusion of the operation, access to the files will be reserved for the judge, the Public Prosecutor’s Office and the police chief responsible for the operation, in order to guarantee the secrecy of the investigations.

Jurisprudence

No characterization of police infiltration: There is no police infiltration when an agent assigned to an intelligence agency, under a false identity, only represents the offended party in extortion negotiations, without introducing or infiltrating the criminal organization with the purpose of identifying and gaining the trust of its members or obtain evidence on the structure and functioning of the gang ( HC 512.290-RJ , Reporting Minister Rogerio Schietti Cruz, Sixth Panel, unanimously judged on 08/18/2020, DJe 08/25/2020).

Banking and tax secrecy, internet and general matters

WhatsApp and judicial suspensions of the service:  In view of the company’s refusal to provide the content of communications between users under the allegation of operational impossibility, it is discussed in   ADPF 403  and   ADI 5527  whether the judge can suspend the WatsApp service for disobeying the court order. The problem in deciding this issue is that even today it is not clear whether it is possible to intercept messages from this system. Everything indicates that yes, despite the encryption of the messages, but the cost of this intervention is extremely high for the company, and would have to be passed on to the user. 

Legislation

Law No. 12,965, of April 23, 2014:  Establishes principles, guarantees, rights and duties for the use of the Internet in Brazil .

Doctrine

Alesandro Gonçalves Barreto and Marcos Tupinambá Martin Alves Pereira. Fake news  and content removal procedures . Conjure

Ericson M. Scorsim :   The issue of WhatsApp encryption: judgment of the case by the STF from the perspective of communications security .  Crumbs.

Fernando Martines . WhatsApp’s refusal to collaborate with Justice bothers law professionals . Conjure

José Luis Oliveira Lima:  We are already monitored too much . olimaadvogados.adv.br.

Luiz Flávio Borges D’Urso:  “ Nudes” on the internet – A dead end . duraso.com.br.

Marcelo Galli : Law is not prepared to face digital crime, says Rogerio Schietti . Conjure  

Pedro Lima Marcheri :  Intimacy and precautionary storage of connections in the internet regulatory framework .  Electronic journal of applied social sciences. 

Tarcisio Teixeira, Paulo Henrique  Sabo, and Isabela Cristina Sabo :   Whatsapp and end-to-end encryption: legal trends and the conflict between privacy vs. public interest .   Rev. Fac. UFMG Law.

Doctrine – bank secrecy

José Luis Oliveira Lima:  Banks have the right to question breach of secrecy . olimaadvogados.adv.br.

Gilmar Mendes:  Banking secrecy, the right to self-determination over information and the principle of proportionality . Gilmar Mendes.

Rogério Alvarez de Oliveira and Wanessa Gonçalves Alvarez :  Current particularities of bank secrecy breaches . Conjure

Tania Nigri : Public funds are not protected by bank secrecy . Conjure 

Jurisprudence – General

Nullity of evidence arising from breach of banking secrecy by the tax administration without court authorization:  The data obtained by the Federal Revenue based on art. 6 of LC 105/2001, upon direct request to banking institutions within the scope of administrative tax proceedings without prior judicial authorization, cannot be used to support conviction in criminal proceedings ( REsp 1.361.174-RS, Reporting Min. Marco Aurélio Bellizze, judged on 6/3/2014 – Newsletter No. 543 ). 

Use in criminal proceedings of information obtained by the Federal Revenue upon direct request to banking institutions:  The data obtained by the Federal Revenue based on art. 6 of LC 105/2001, upon direct request to banking institutions within the scope of administrative tax proceedings without prior judicial authorization, cannot be used in criminal proceedings, especially to support criminal proceedings ( RHC 41.532-PR, Reporting Min. Sebastião Reis Júnior, judged on 02/11/2014 – Newsletter No. 535 ). 

Need to substantiate a decision that determines invasive data access procedures:  A decision that, without justification, determines access to bank, telephone and air transport company data is null and void, even if the procedures were requested with the aim of verifying the regular compliance with a penalty restricting rights (Resp 1.133.877-PR, Judge Nefi Cordeiro, judged on 8/19/2014 – Newsletter No. 545). 

Request by the Public Prosecution Service for bank information on a public administration entity:  Evidence obtained through a request from the Public Prosecutor’s Office for bank information owned by the municipal government for the purpose of investigating alleged crimes committed by public agents against the Public Administration (STJ , HC 308.493-CE, Judge Reynaldo Soares da Fonseca, judged on 10/20/2015, DJe 10/26/2015 – Newsletter 572 ). 

Non-configuration of controlled action:  The police investigation whose sole purpose is to obtain more concrete information about the conduct and whereabouts of a certain trafficker, without intending to identify other suspects, does not constitute the controlled action of art. 53, II, of Law 11.343/2006, judicial authorization being unnecessary for its realization ( STJ, RHC 60.251-SC, Justice Sebastião Reis Júnior, judged on 9/17/2015, DJe 10/9/2015 – Newsletter 570 ).  

Bank information. Supply by financial institutions. Non-violation of privacy:  The provision, by financial institutions, of bank information on taxpayers to the tax administration, without the intermediation of the Judiciary, does not violate the fundamental right to privacy (ADI 2386, ADI 2390, ADI 2397, ADI 2859, rel. min  . Dias Toffoli, judgment on 2/24/2016, DJE of 10/21/2016  – Bulletin 815, Plenary). 

Public Prosecutor’s Office access to receipts and proof of bank deposits spontaneously delivered by the investigated’s ex-partner. Banking and tax secrecy:  The Public Prosecutor’s access to receipts and proof of bank deposits spontaneously delivered by the former partner of the investigated person, which were voluntarily left under her responsibility by the investigated person, does not constitute a breach of bank and tax secrecy (STJ, RHC 34.799- PA, Justice Reynaldo Soares da Fonseca, judged on 3/17/2016, DJe 4/20/2016 – Newsletter n. 581 ).

Constitutionality of the authorization for tax inspectors and authorities to examine financial information:  The breach of bank secrecy of an investigated person does not violate the Constitution, when evidence of illicit practices is present, at any stage of the investigation. Art. 5 and 6 of Complementary Law 105/2001 and its regulatory decrees, which deal with the authorization for tax inspectors and authorities to examine financial information (ADI 2,386, ADI 2,390, ADI 2,397, ADI 2,859, rel. min. Dias Toffoli, judgment on  24 -2-2016, DJE of 10-21-2016  – Bulletin 815, Plenary).

Proof produced by the Federal Revenue Service of Brazil. No need for judicial authorization:  Criminal conviction backed by evidence produced by the Federal Revenue Service of Brazil by obtaining information on financial transactions with banking institutions without prior judicial authorization for breach of bank secrecy is valid ( RHC 121.429, rel. min. Dias Toffoli, judgment on 4/19/2016, DJE of 5/31/2016  – Bulletin 822, Second Panel). 

Bank details provided by the company to the tax authority and inquiry:  The bank details provided to the tax authority by the inspected business company, after regular subpoena and regardless of prior judicial authorization, may be used to support the initiation of a police inquiry to determine the alleged practice of a crime against the tax order ( STJ, RHC 66.520-RJ, Justice Jorge Mussi, judged on 2/2/2016, DJe 2/15/2016 – Newsletter n. 577 ).

Evidence shared by the foreign State. Use in investigations produced in Brazil:  Exerting from the investigated context – through the material shared by the foreign State – the alleged practice of various illicit conducts, nothing prevents the use of that evidence in investigations produced in Brazil, especially when the foreign authority did not impose any limitation on the scope of information and evidence shared, as it could have done, if that were the case ( Inq 4.146, rel. min. Teori Zavascki, judgment on 6/22/2016, DJE of 10/5/2016  – Newsletter 831 , Plenary). 

Request for bank details directly by the MP when the account is owned by the public authority:  The request for bank details directly by the Public Prosecutor’s Office is allowed, if the account is owned by the public authority and if the financial operations involve public resources ( RHC 133.118 , rel. min. Dias Toffoli, DJE of 9-3-2018 ). 

Data obtained through breach of secrecy must be kept confidential:  Data obtained through breach of banking, telephone and tax secrecy must be kept under reserve, making public knowledge unfeasible ( MS 25.940, rel. min. Marco Aurélio, DJE of 21 – 9-2018 ). 

Undercover agent and intelligence agent. Reservation of jurisdiction regarding the first:  The performance of the undercover agent, unlike what happens with the intelligence agent, depends on prior judicial authorization ( HC 147.837, rel. min. Gilmar Mendes, DJE of 6-26-2019 ). 

Computer data from a certain region: A sufficiently substantiated judicial determination to breach the secrecy of static computer data (records), related to the identification of users who operated in a given geographic area, does not offend the constitutional protection of privacy and intimacy ( RMS 61.302- RJ , Judge Rogerio Schietti Cruz, Third Section, by majority, judged on 08/26/2020, DJe 09/04/2020).

Time delimitation is not necessary for telematic data: For access to telematic data, temporal delimitation is not necessary for the purposes of criminal investigations ( HC 587.732-RJ , Reporting Minister Nefi Cordeiro, Sixth Panel, unanimously, judged on 10/20 /2020, DJe 10/26/2020).

Jurisprudence – Sharing of evidence

Sharing of evidence due to an international cooperation agreement:  There is no illegality in the use, in ongoing criminal proceedings in Brazil, of information shared pursuant to an international cooperation agreement in criminal matters and arising from breach of bank secrecy determined by a foreign authority, with support in the legal system of his country, for the investigation of other criminal facts that occurred there, even if there is no previous decision of the Brazilian justice authorizing the breach of secrecy ( STJ, HC 231.633- PR, Reporting Justice Jorge Mussi, judged in 11/25/2014, DJe 12/3/2014 – Newsletter 553 ).

Direct transfer of information from the Federal Revenue Service to the Public Ministry. Possibility:  Fixing a thesis in relation to item “a” of Theme 225 of the general repercussion system: “Art. 6 of Complementary Law 105/01 does not offend the right to bank secrecy, as it achieves equality in relation to citizens, through the principle of ability to pay, as well as establishing objective requirements and the transfer of the duty of secrecy from the banking sphere to the tax sphere ” ( Summary, Justice EDSON FACHIN 02/24/2016, PLENARY EXTRAORDINARY APPEAL 601.314). We note that the STF, in the judgment of RE 1144128, year 2019, rapporteur Minister Gilmar Mendes, decided, on this matter, the following: It is possible to use data obtained by the Federal Revenue Service, in a regular tax administrative procedure, for purposes of criminal procedural instruction ( HC 422.473-SP, Reporting Justice Sebastião Reis Júnior, unanimously, judged on 03/20/2018, DJe 03/27/2018 – Newsletter 623 ).

Constitutionality of the sharing of information between the RF and the authorities:  Provided that the legal requirements are met, it is constitutional for the Federal Revenue to share information about the economic and financial situation of the taxpayer with administrative authorities, in the interest of the Public Administration (ADI 2.386, ADI 2,390, ADI 2,397,  ADI 2,859, rel. Dias Toffoli, judgment on 2/24/2016, DJE of 10/21/2016  – Newsletter 815, Plenary).

It is legitimate to share evidence collected in criminal investigations with state bodies:  It is legitimate to share evidence collected in criminal investigations with state bodies responsible for administrative or civil procedures, even if the evidence results from the removal of financial and tax secrecy and telephone interception ( Inq 3,305 AgR, rel. original min. Marco Aurélio, red. p/o ac. min. Roberto Barroso, judgment on 2/23/2016, DJE of 7/1/2016  – Newsletter 815, First Class). 

The controlled action: The controlled action provided for in § 1 of art. 8 of Law no. 12.850/2013 does not require authorization, with prior communication to the judicial authority being sufficient ( HC 512.290-RJ , Reporting Min. Rogerio Schietti Cruz, Sixth Panel, unanimously, judged on 08/18/2020, DJe 08/25/2020).

Video

The Art of Digital Forensics:  Data Security Director’s interview with the Olhar Digital Program.

Grounds for the decision and legal measures

Decision and necessary grounds:  For any interception of data, correspondence, telegraphic and telephone communications, in order to break bank and tax secrecy, it is essential that the decision authorizing it be substantiated. Rejection, likewise, must be motivated.

Measures against the decision denying or ordering the removal of the evidence:  There is no provision for an appeal in the strict sense. They are applicable against the decision that denies, or that orders the removal of the evidence, or the  habeas corpus , or the writ of mandamus. The former is for the defense, the latter for the prosecution. 

Jurisprudence

It is admissible to use the technique of reasoning per relationem for the extension of telephone interception when the assumptions that authorized the enactment of the original measure are maintained.

Judgments:

AgInt no REsp 1390751/PR, Rel. Justice Rogerio Schietti Cruz, Sixth Panel, judged on 11/08/2018, DJE 11/23/2018

RHC 34349/RS, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 10/23/2018, DJE 11/09/2018

RHC 73498/DF, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/14/2018, DJE 08/23/2018

AgRg in RHC 68058/RS, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 06/07/2018, DJE 06/13/2018

RHC 94089/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 03/06/2018, DJE 03/14/2018

AgRg in AREsp 431316/RJ, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/06/2018, DJE 02/16/2018

See also the journals (updated to date of publication):

Jurisprudence in Theses – ISSUE N. 69, published on November 3, 2016.

Jurisprudence Information No. 0491, published on February 24, 2012.