Cooperação jurídica internacional em matéria penal: uma análise da validade da prova produzida no exterior à luz do sistema normativo brasileiro

Abstract

Over the last decades, the doctrine of International Judicial Cooperation in Criminal Matters was highlighted due to major operations undertaken by agencies tasked with criminal prosecution, particularly in topics associated with economic criminal law and those involving transnational criminal organizations. While this doctrine is not new, the fact is that new forms of cooperation, more agile and dynamic, have arisen with a view to accommodating economic globalization and meeting the consequent needs for mutual assistance in overcoming hurdles to obtaining evidence. Numerous treaties were signed to regulate reciprocal rights and obligations in international cooperation, it being inconceivable, in the case of Brazil, that any such activities could violate the fundamental guarantees enshrined constitutionally according to the principle of human dignity by which a democratic rule of law abides. However, what is seen in practice is the admission of evidence obtained in the context of international judicial cooperation in criminal matters that contravenes the rules of domestic law, and oftentimes is fully validated by local courts that fail to observe and guarantee these principles. In this context, this research details the aspects of international judicial cooperation and its issue concerning the admission of evidence for criminal purposes in those cases where Brazil is the country requesting or the recipient of evidence provided by another State’s voluntary act. To this end, discussed initially is the phenomenon of globalization and escalation of transnational criminality, delving into the subject of international judicial cooperation in criminal matters, its modes, peculiarities, forms it is pursued, reaching the subject of evidence and its aspects, unconditional admission through the lens of doctrine, due process and opinions of jurists. Lastly, important decisions by the Superior and Supreme Courts were chosen to shed light, in a clear and straightforward manner, on the position adopted by courts concerning this matter. The conclusion drawn is that serious violations of constitutional principles in Brazil are being committed to validate evidence obtained from cooperatio