CONSTITUTIONALLY PROTECTED RIGHT TO INTIMITY AND TELEPHONE INTERCEPTION: THE QUESTION OF THE LEGALITY OF FORTUITUDE EVIDENCE

Abstract

Elevated to the category of fundamental rights, the right to privacy, as well as the right to confidentiality of telephone communications, however relevant they may be, cannot absolutely override all other rights worthy of legal protection. Exceptionally,
the right to the preservation of privacy gives way to the supremacy of the public interest, which authorizes, as long as legal requirements are met, the State to intervene in the communications of its administrators. The telephone interception law, Law 9.296
of 1996, outlined the requirements for the State to be able to use this means of evidence for the purposes of criminal investigation or criminal procedural instruction. As a result, telephone interception began to be considered legal upon compliance with requirements established by law, including the need for the judicial decision authorizing the precautionary measure to indicate and qualify those investigated and clearly describe the situation subject to the measure. The fact is that in the course of capturing the audio, other criminally relevant facts may arise, which differ from what was described in the decision that authorized the interception. It is also possible that others may be involved, with the same fact being investigated or with other facts. The law did not contemplate the hypothesis of what was called by the doctrine a fortuitous encounter or serendipity. Faced with legislative omission, several doctrinal currents were formed, which will be analyzed below.