Provas ilícitas: o direito comparado e o STF

Abstract

The purpose of this study is to examine the admissibility of unlawful evidence in Civil Procedural Law in the face of the constitutional command of article 5, item LVI, which establish the principle of prohibiting the admission of evidence obtained through an unlawful means. It uses the deductive method when analyzing existing doctrinal and jurisprudential positions based on general assumptions in reaching the conclusion. Initially, it takes an approach of the system of valuation of the proof against the new CPC, with the understanding of being adopted, in Brazil, the one of the rational persuasion or the rational convinced rational. The contribution of this article is to demonstrate the position of the Federal Court of Justice (STF), an evident restrictive and radical view regarding the inad missibility of evidence obtained by means of illicit rules, demonstrating that it is necessary to reduce this understanding with equity in the exercise of the important function to soften the rigor of the text, through proportionality, as an implicit constitutional principle. It signs the subsistence of the collision of principles and fundamental rights, when it manifests the most viable solution to the prevalence of the most valuable and weightier law/principle, with a prominence of the hierarchy of public interest over the collective and the individual, and of that over this. As well as the right to life and dignity of the human persons over the other principles, also provided for in the constitutional order. Finally, it presents an analysis of the comparative law, with a focus on existing positions on the subject in Germany, Spain, France, Italy, Portugal, England and the United States.