Limitações à circulação probatória entre os processos civil e penal

Abstract

The express provision of the use of evidence previously produced in another case contained in article 372 of the Civil Procedure Statute of 2015 was made unaccompanied by specific criteria for the phenomenon, either between procedure of the same kind either between differently regulated procedures. This work aims at examining the limitations on the circulation of this kind of evidence between civil and criminal procedures. Using the legal comprehensive method of research, it analyzes the criteria traditionally listed for the circulation of evidence, which are: production of evidence before a court; identity in fact of the evidence; identity of parties; production of evidence in contradiction. Recognizing the insufficiency of these criteria when the previous procedure is a criminal one and the current procedure is a civil one, or vice versa, the work presents two additional criteria, without the presumption of exhaustion, so that the use of evidence previously produced respects the guarantee of the fair process. Thus, the first additional requirement to be observed is the compatibility of the guarantees in each procedure, or the different contours that those guarantees assume in their respective procedures. In relation to the evidence admitted or produced under an exceptional judgment of proportionality, the need for a second additional requirement for the circulation of evidence was observed, which is the following analysis: if that weighting occurred in the original case wore made the second one, would the result concerning the lawfulness of the evidence be the same? With this, it aims to prevent the misuse of purpose of the evidence and prevent the prohibition of illegal obtained evidence being circumvented, preserving fundamental rights protected. Finally, we highlight the importance of procedural aspects in the production of the circulation of evidence, especially the complete transfer of the records, as a means for the judge of the second process to verify the proposed requirements. In addition, the parties should be able to exercise the contradictory about the use of the use evidence previously produced.