A (IN) ADMISSIBILIDADE DAS PROVAS ILÍCITAS NO PROCESSO PENAL: ANÁLISE DO PRINCÍPIO DA PROPORCIONALIDADE

Abstract

This study addresses the (in)admissibility of illicit evidence in Brazilian criminal proceedings, focusing on the application of the principle of proportionality. The context of the research is based on the conflict between the search for the real truth in criminal proceedings and the preservation of fundamental rights, such as privacy and the inviolability of the home. The objective is to analyze how the principle of proportionality can justify, in exceptional situations, the use of illicit evidence, even in view of the constitutional prohibition expressed in its article 5, item LVI. The justification for the study is based on the growing relevance of this topic in high-profile cases, such as corruption cases and serious crimes, where illicit evidence can be decisive. The flexibility applied by the Supreme Federal Court (STF) in such situations generates debates about the relativization of constitutional rights and the risks that this poses to the justice system. Therefore, the research aims to understand the limits and consequences of this flexibility. The methodology used was a bibliographic survey, analyzing doctrinal sources, case law decisions and legal norms, especially from recent publications, post-2020. The study adopts a qualitative approach to interpret and discuss the data, with an emphasis on the theories of illicit evidence by derivation and the principle of proportionality. The results indicate that, although the STF applies the principle of proportionality in exceptional cases, this flexibility must be done with caution, under penalty of weakening fundamental rights. The research concludes that the admissibility of illicit evidence should always be an exception, supported by rigorous criteria and an in-depth analysis of the circumstances of each case.