A (i)licitude da prova colhida em aparelhos celulares: um estudo doutrinário e jurisprudencial

• Autor(a) principal: Borges, André João
• Data de Publicação: 2018
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/6193
• topic: Processo Penal; Provas ilícitas; Celulares; Smartphones

This study intends to discourse about the evidence collected on cell phones devices and its admissibility in criminal procedure, by analyzing the lawfulness of the means used to obtain them. The qualitative, exploratory and bibliographic research methods were used to reach the expected results. From the doctrine and jurisprudential studies, the objective was to determine which means of obtaining evidence are considered lawful within Brazilian criminal procedural law, in order to demonstrate what really goes beyond constitutional limits and fundamental rights. The central issue was to establish the reasons why the collection of data on the suspect’s cell phones, without proper judicial authorization, can generate procedural nullity. In the Federal Supreme Court there is pending judgment on the matter. Until now, just declared the theme is of general repercussion. For Superior Federal Court and the majoritarian doctrine, already, the evidence collected on cell phones devices require judicial authorization, under penalty of being considered illicit. The main reason is that the expertise in cell phones devices can be a mean capable of colliding with the constitutional and fundamental rights that safeguard privacy and private life. It is understood that no constitutional right is absolute and may be restricted on a case-by-case basis, however the only competent authority to limit these rights is the magistrate. In this way, it was concluded that the evidence collected on cell phones devices, without the judicial request for breach of data confidentiality, are illicit and cannot be used as evidence in criminal procedure.