LEI , DE 19 DE DEZEMBRO DE Capítulo I DA Processo Judicial Eletronico: Comentarios a Lei 11,/06 (Portuguese Brazilian) Paperback –. 1 ago. PDF | A Constituicao Federal Brasileira de elencou o acesso ao Judiciario A lei determinou a transicao dos procedimentos dos tribunais 11,/, that instituted the Digital Procedure, as well as by the action of. A Lei nº. de representou grande evolução no ordenamento jurídico brasileiro, além de possibilitar a implementação do Processo Judicial.
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Skip to main content. Log In Sign Up. Producing criminal evidence and the new technologies: Producing criminal evidence and new technologies: The 111419 to demarcate a specific space 20006 internet-related issues allows for a deeper analysis on internet controversies in which a meticulous analysis is necessary; such controversies typically involve nuances that are not always visible within the totality of situations involving the use of digital technology in the legal field.
On the electronic process in Brazil: This intervention is centered on the relationship between criminal proof and new communication and information technologies, in their ties to the worldwide web, a problem sufficient enough to aggregate a serious amount of issues interpolating law as well as other fields of knowledge and that demand from those involved in solving legal problems the temporary suspension of certain concepts and beliefs consolidated over decades of working experience in the legal field.
With the 114199 of extracting as much as possible from the debate the perimeter of controversies will be even more restricted to looking at the flow of internet-based data as a source of evidence or a means of obtaining proof in criminal cases3. What should be inquired in other words: This law concerns punishing conduct defined as informational violations arts.
The questions proposed here deal with the delicate tension between individual rights and the common good, touching the heart of public freedom of expression, communication, informational freedom, etc. To the contrary, the wealthy bibliography on this subject and on convoking supranational paradigms in order to inspire diverse solutions adopted in other countries reveals how lej and tormenting this problem is5.
Internet provider e giustizia penale: Science at the Bar: Cambridge, MIT Press, The transnational diffusion of feelings of generalized insecurity incentivized punctual paradigmatic changes that reflected on criminal practices. Pilar Calveiro rightfully alludes to general procedures that established new modalities of penalization and punishment in the local as well as international realm6 as a direct result of this perception.
In different ways both Pilar Calveiro and Lorena B. As the legal field, and especially criminal law, were called onto the scene, these have reacted by coming up with strategies in order to control criminality and have exercised power in such a way as to frequently interpolate public freedom and affect personal privacy.
Buenos Aires, Siglo Veintiuno,p. La sociedad del riesgo mundial: Coimbra, Almedina,p.
The first step towards instituting clear borderlines in the legal order is by maintaining this topic within the realm of the Law, in conformation with the constitutional paradigm and in reverence to the treatment given to such material by international human-rights treaties. In Brazil, the legal regime for intervening in communications is disciplined by the dispositions of art.
Processo eletrônico no Brasil – Wikipédia, a enciclopédia livre
As such, the 2060 concepts of sources and means of proof continue promiscuously living side by side in the the Code of Law regulating Brazilian criminal procedure. In the legal kei A proposal for systematic legislative updating is contained within the Criminal Procedural Code project, currently being analyzed in congress Basically, the 114419 contemplates a distinction between means of proof and means of obtaining proof and regulates intercepting the flow of communications in informational and telephonic systems art.
IIthat are now considered as means of obtaining proof. In addition, the project timidly establishes rules for executing interception orders on the part of communication provider services art. The hypothesis sustaining these decisions, however, consists in questioning the interception of emails as a method of dd to sources of proof, i.
After all, electronic and traditional mail services are almost intuitively seen as equivalent As such, before even starting to probe into means and modes of executing interception orders for emails, the following question 114119 be asked: A problem ignored is still a problem Effectively, admitting the hypothesis of lej email as data, i.
Other data incorporated naturally into the argumentation claims legal permission to investigate serious illicit crimes such as, for example, drug trafficking and corruption, aiding authorities by using secret invasive means of investigating informative elements. Such reasoning is structured around a combination of two premises recognizing that serious delinquency thrives on new and efficient communication and information technology in order to carry out crimes.
A similar hypothesis supposes the criminal repression should equally resort to sophisticated means of observing and gathering information.
This premise is that what permitting data interception may be given legal backing by the single paragraph of article.
Electronic process of law in Brazil
This Law applies to intercepting the flow of communications in informatics and telematics systems. This act was created on the basis of inadequate resolution, and not the law itself, in order to deal with issues that, in restricting individual rights, raise the need for the previous law.
The ADIN also invests against the lack of competence of the CNJ to make decisions on this issue, this being the fundamental point of the controversy.
Hence the challenge of renewing the constitutional interpretation regarding Brazilian criminal procedural law and transforming its modus operandi. Criteria for interpretation among communities with democratic traditions The rapid evolution of communication and information technologies and the dialectic tension between public freedom, that the inviolability d communications protects, and the security of legal goods under the tutelage of criminal law, at first provoked perplexity and hesitation.
And, naturally, as a result, internet technology also turned into an important source of dd proof Initially, the dialectic tension took as a critical point technique. Developing informational supports with much greater capacity for memory, at more supportable costs, endorsed the formation, even if temporary, of a database that stores messages sent by email provider services.
Central North American legislation EPCA 26 and afterwards the effects of the decisions of the European Human Rights Court made themselves felt by internet providers of email services since these ended up with the legal obligation of having to store messages for a determined period of time.
The risk of losing the messages, to be used as criminal proof, became significantly reduced. Coimbra, ; by the same author: On the other hand, there was growing fear in Europe and in the USA of these new 2006 implementing serious crimes, thus stimulating pressure on fundamental rights and invoking, after being repelled in the courts for so long, the idea of balancing risks and benefits as a permissive technique for the quoted interceptions Strengthening tutelage of communications safety is in agreement with the regulation from art.
Por um direito comum.
Martins Fontes,p. Estudios de Derecho Judicial. Consejo General del Poder Judicial,p. Based on these guidelines, the ECHR reaffirmed the regime of guarantees, conforming to a minimum standard of fundamental rights, even if under pressure of expanding secret criminal investigation measures. In a scenario of tension between freedom and security and inspired by a rhetoric of risk, States produce norms that, in order to expand resources of criminal repression, end up persecuting human rights.
Thus what prevails in Europe, just like the North American ECPA fromis the resolution of only admitting more invasive forms of electronic communications associated to crime prevention that have still not been committedwith a view towards defending democracy as a whole, consonant with the interpretation of art.
The interpretive stance of the ECHR claims that intercepting emails must be repudiated as a means of criminal investigation concerning crimes that have supposedly already been committed The impossible interception of emails Widening the normative realm of protecting privacy and seeing intimacy as its most restricted circle is befitting of communication, whenever such communication is private.
Processo eletrônico no Brasil
In order to protect these kinds of measures, always exceptional and conditioned to court mandates issued when there is a probable cause, the legal statute calls for the temporary storage of this information. There are, however, varied leii of electronic surveillance. This presentation is more interested in examining the legal regime and the legislative trend regarding methods of intercepting 1141, thus restricting the analysis to this hypothesis. Private communication should be understood as that which takes place between determined actors, independent from their number.
Private communication presupposes that the receptor or receptors has been previously determined by that actor emitting the message For reasons exclusive to the actors themselves, in private communication these decide their public, i. XII of article 5, whose instrument of protection is confidentiality. This may be seen in the text in two blocks: Observe how the article may be characterized as a block; the conjunction unites correspondence with telegphaphics, followed by a coma and, afterwards, the conjunction of data is united with telephone communications.
The constitutional legal good, thus, is communication, which guarantees the privacy of the content of a report communicated that forms the message. In the same way that messages make use of physical support, such as traditional correspondence, those responsible for the communication must preserve its confidentiality, leaving the letter untouched. When the communication is made by way of data42, the responsible agent is equally responsible, since this agent places the data into circulation, and as such must protect the flow of this information by preserving its confidentiality.
As Castanheira Neves emphasizes, private entities must abstain in the same way from any sort of mismanagement of electronic communication In this new scenario the consequence of private services administrating communication channels by which private communication navigates is the obligation of confidentiality, thus being endowed with the right to resist illegitimate intentions to interfere in communication under their responsibility.
Article of the Portuguese Criminal Code protects the duty of confidentiality of all those who, by force of their positions or because of them, have had access to private information45 Even so it is still possible to extract from the Constitution in its article 5, inc. XII, the obligation of confidentiality in order to protect media employees responsible for administrating internet email providers.
The constitutional statute of inviolability of electronic communications is thus articulated with State obligations regarding criminal repression. If electronic communication is inviolable, demands of adjudicating criminal responsibility legitimatized by a level of truth that makes handing out punishment possible demands that a means be found by which this interest may be harmonized in a constitutionally based way.
This obviously implies the need of a due legal process which in Brazil, by virtue of the Federal Constitution, is recognized expressively in art. In general terms, a law on seizing emails must contemplate the same aforementioned legal requirements in a generic way as mentioned in items 50 and 51, which are foreseen even though they need greater treatment, in the case of telephone interceptions.
Criminal proof produced outside of these parameters is illegal and frustrates the objectives founding the inc. The Lochner Court, Myth and Reality: Substantive Due Process from the s to the s.
O processo judicial eletrônico e o princípio da celeridade – Processual Civil – Âmbito Jurídico
Landmark Supreme Court Cases: Gary Hartman and others. New York, Facts on File,p. To the contrary, the common good is reaffirmed by scrupulous respect for fundamental rights. The Federal Supreme Court highlights that acting outside of the proper legal parameters in order to obtain proof49, on the one hand, harms the criminal process, since the proof may be handed over for the judge to evaluate, and on the other, converts a private being contributing towards producing proof into the author of illicit conduct.
Minister Celso de Mello. In Brazil, illicit proof is not null. Its invalidity is more accentuated. LVI of the aforementioned article 5.
Hence the devastating quality to the adequacy of the process, generated by obtaining proof in an illicit fashion, a situation created by obtaining proof by illicit means – violating the correct legal process – must be taken into consideration. I believe, however, that if once it was possible to recognize the advances of international legal cooperation, which through direct assistance have shortened to path of rogatory letters, both slow and inefficient, now a better way of examining the issue is provided by the project of the new Criminal Procedural Code, which declares in its articlethat: Rio de Janeiro, Lumen Juris,p.