Abstract
This paper aims to analyze the interpretative scope of art. 8-A, § 4, of Law No. 9.296/1996, introduced by Law No. 13.964/2019, which establishes that only environmental recordings made by one of the interlocutors without the consent of the other may be used in criminal proceedings “in matters of defense”. It was inquired: are legal the environmental recordings made by the crime victims? As for the methodology, it uses inductive reasoning with the use of national and foreign literature review and judicial decisions on the subject, especially from the USA, Germany, Portugal, European and Inter-American human rights courts and the Brazilian Supreme Court (STF). It is concluded that environmental recordings have a typicality of violation of the fundamental rights to image and voice, as well as the right to a hearing. Such typicality is indicative of illegality. However, the principle of proportionality works as an excluding cause of illegality. Thus, the situation of probative self-defense by the crime victim can justify the use of clandestine recordings, whenever the right to be protected has a higher value than the expectation of privacy and protection to the voice and image of the perpetrator of a crime. We conclude with the need for an interpretation in conformity with the Constitution, in order to understand that the clause means “in matters of defense of fundamental rights”.
Keywords
Environment recording; Anti-Crime package; Collision of fundamental rights; Proportionality