Speak up! Another column coming on the air today and dealing with the topic of telephone interceptions. I came up with the idea of writing about it after a conversation I had with my brother and office partner, Dr. Gustavo Nagelstein, as we were bent over in a gigantic drug-trafficking process where a whole family was arrested on the basis of telephone interceptions entirely illegal.
I ask you, my friend, to share the difficulties and uneasiness on the subject.
Every person has the right to privacy, guaranteed in the Federal Constitution, as we can contemplate in Article 5, X, which says that “privacy, privacy, honor and image of persons are inviolable, secured the right to compensation for the damage material or moral consequence of their violation “.
We are working in our office in a criminal case where wiretaps begin without judicial authorization and are for a long time now confirmed as licit by a group of criminal judges who cite jurisprudence from our High Courts to quell this terrible lawlessness .
We are relativizing important rights, forgetting that the criminal process was done to guarantee rights to the defendant; we are forgetting that it was the oppressor yesterday who is the oppressed today in front of the state force, which removes assets already in the police phase (real precautionary measures and other assecuratorial measures), as well as suppressing the freedom of someone (preventive prisons), for indefinite time, as may be appropriate to criminal proceedings.
It is not investigated in Brazil. I have observed that a great deal of convictions in drug-dealing crimes are made on the basis of telephone interceptions and nothing more.
The Criminal Law of the State
Law 9.296 / 96 itself states that telephone interception is the last means of probation to be sought by the police authority, however, we see the opposite occurring quite the opposite: processes with telephone tapping only, without voice confirmation skills, where the only witnesses of the police officers who interpreted and transcribed the dialogues in their own way, ie the “shiver of the law”.
And what amazes me the most is to see lower and higher courts confirming these terrible illegalities, using the argument that drug trafficking carried out with a high degree of sophistication allows these types of evidence to be lawful, not contaminated the proceedings.
In the process we are working on, in my view, it would be totally NULL. In addition to the prisons, we see people losing all their assets.
It even seems that these people engaged in trafficking throughout their entire lives. Everything is taken away from these accused (patrimony and freedom) based on fraudulent procedures that are confirmed by those who should preserve the constitutional guarantees of the accused.
It is no use: the enemy’s criminal law has contaminated our courts and now they are saved who can.
The impression I have is that each judge makes his own CP, CPP and CF. Pure dezionism. Everything is justified when it is best for that judge or group of judges to even pass an unlawful evidence in favor of ensuring public order and worse. How to bring back the legal security that has been withdrawn from us?
I do not see with good eyes the future of the criminal process in Brazil. Much hatred, mistaken decisions taken to please the population without any legal technique doing that “cheerleading”.
Again, I want to make it clear that as a criminal lawyer that I am very proud, I do not want any benefits for my client. I just wish the procedural rules were maintained.
Its worth for a voucher for all. It is undeniable that drug trafficking is very poorly seen by the judges, however, we can not relativize rights depending on the crime being tried.
I sometimes think of these great apprehensions of the federal police, citing, for example, that if tons and more tons of drugs are seized, is it true that other tons will supply the streets and who keeps traffic in drugs in Brazil? The poor guy on the periphery? Of course not.
The traffic is maintained by the large number of “casual” weekend, middle and high class users who work the whole week and get free at poisoned parties.
What we urgently need is a drug policy. I believe that the best way out is the release of narcotics, taking the government to the front of the trade, charging taxes and letting the individual decide where to put their nose or if it will give a “two.”
We lost the war for the toxic, but that’s a subject for another column!