A teoria da proporcionalidade e a possibilidade de utilização de provas ilícitas pro societate no âmbito do processo penal.

Abstract

The Criminal Procedure, being one of the branches of the general process, has the purpose of criminal prosecution to uncover the truth of the facts when it involves the practice of crimes, being the necessary instrument to receive the guilt or not of an accused individual in a criminal action. In this way, it is through the institute of evidence that the real truth will be demonstrated, and it is necessary to collect evidence in order to guarantee the veracity of the allegations made in the criminal proceedings and thus assist the magistrate in forming his conviction. Thus, since the evidence is a right of the parties to the proceedings, like any right, the right of evidence is also limited. Such limitation in the criminal proceeding comes both from the Federal Constitution, when it disallows the illicit evidence, in its art. 5º, LVI, and of art. 157 of the Code of Criminal Procedure, which prohibits illicit evidence and also illicit evidence derived therefrom. With this limitation of illicit evidence, the search for real truth ends up becoming a secondary objective of the criminal process, since, even if an illicit evidence demonstrates a reconstruction of the facts, convincingly, the evidence can not be used by the magistrate for his Conviction, since it violates a fundamental right. That is why the theory of proportionality arises, which, by weighing interests, will show that in certain cases, interests defended by unlawful evidence become more relevant than those that the illicit evidence contradicts. In this way, the objective of this paper is to outline the possibilities in which the pro-illegal probative evidence should be admitted for the defense of rights that are much more comprehensive than a single right contradicted. To do so, it will be necessary to use a methodology with a deductive approach, with a research technique based on documentary data surveys, through bibliographies, jurisprudence and scientific articles, to be able to start from a general premise and, in the end, conclude Based on particular interpretations of the subject.