O princípio da proporcionalidade e a ilicitude das provas

Abstract

The evidence is presented as essential to the prosecution. The conceptual understanding of their field and the degree of importance that takes on the likes of procedure allows the lightening of its central role in the development of the sentence. Thus, this thesis aims to understand the legal treatment incident on the illegal evidence in the context of criminal proceedings, explaining the concepts, principles, and legal trial involving the admissibility of such evidence. From the access, selection and reading of literature theme, it was a first approximation of the object of study. There is an understanding among the authors surveyed converged on several meanings of the term evidence. However, they are unanimous in attributing importance to the issue of evidence in criminal harvest. Moreover, the constitutional principles emerge as sources able to settle all matters of procedural relationships of the actors on the validity of evidence. The conviction of the judge, thereby, in addition to sticking to the facts alleged in the process, these principles have criteria to appraise the evidence. Consolidated is also the understanding of defense evidence in criminal proceedings. The inadmissible evidence are the genus of which species are the illegal evidence. Evidences are those addicted to illicit the illegality of the taking, because they hurt some of the principles of substantive law, especially of a constitutional nature. For the evidence is washed by illegality, his means of production must be expressed in the legislation as such. Such evidences are not accepted by the legal system, therefore, can’t be inserted in the record of the proceedings. However, it was evident that this understanding is not rigid, it contemplates the exceptional case in which the person consents to the violation of their rights. This exceptionality is founded on so-called principle of proportionality whose purpose is to provide a legal mechanism to harmonize the conflict between fundamental rights equally reviled. Having founded on this principle, the admissibility of illegal evidence in criminal proceedings can be deploy to acquit the accused (pro reo) or to base the conviction of the defendant (pro societate).