A aplicabilidade do princípio da proporcionalidade face às provas ilícitas no processo criminal.

Abstract

The methodology used for the performance of this research was consisted of analyzing the doctrinal, jurisprudenciais and legal aspects concerning the applicability of the principle of the proportionality face to the illicit tests in criminal proceeding. The term proves deriving of the Latin probatio, means examination, verification, demonstration, etc. This significacao denotes the way as the man uses such instrument for demonstration of the truth of the facts. The test to the light of the criminal proceeding is established as the rhetorical instrument used by the parts for manifestation in judgment of a fact supposedly adjusted to the criminal type. The Federal Constitution treats in its art. 5° of all the rights and basic guarantees of the citizens Finding in this same line, a device that does not admit the use of illicit tests in the process. However, such norm is not absolute, having to be interpreted in accord with the other rules of law, since, all the devices of the constitutional system is atinentes to the process, transforming it into true half warranting of the rights of the man. Being thus, the constitutional forecast that establishes the prohibition of the illicit tests cannot be used as an obstacle to the main purposes of the State, such as the legal security and the achievement of justice, being indispensable to use it as one of the ways to constitute a society more joust. It is become fullfilled, in this aspect, a more minute interpretation of the value of the prohibition of the illicit tests, considering the constitution of efficient a state organization in the rebuke of the citizen, allowing the basic corporificagao of the principles and guarantees for the Rule of law. The application of the principle of the proportionality in face of the prohibition of the illicit tests, does not compromise the legal security, in view of that this criterion leaves to value in surplus this constitutional guarantee, associating this prohibition to a systematic and criterioso study of the Constitution. , So that this principle either adopted by the operators of the right is essential that such used measure either of adjusted form, necessary and thus proportional, in order to obtain it perfect accomplishment of justice through the joust measured for the solution of a collision. Destarte, the principle of the proportionality must be used as half to admit the illicit tests in the criminal proceeding, in serious and extreme cases with the end to harmonize the contrastantes rights and basic guarantees. This criterion is a way of if effecting the justice, that establishes a right and, mainly, a requirement of the Democratic State of Right. In this manner, pro is concluded that in cases, where the male defendant, searching to defend, makes use of an illicit test, the related principle must be adopted, male defendant for evidence of its innocence, therefore such right is acquired constitutionally. Equally, in cases of crimes of serious upheaval for the society, such device must be applied, looking for to admit the illicit tests pro societate, with the purpose to guarantee the effective justice.