BRIEF REFLECTIONS ON THE RIGHTS TO PROOF AND TO ILLEGAL PROOF IN THE PROJECT OF THE BRAZILIAN NEW CODE OF CIVIL PROCEDURE

摘要

This study is a critical reflection on the suppression, at the General Report of senator Valter Pereira, of the sole paragraph of the article 257 of the Bill Project nº 166/2010 (Senate). The matter regarding this paragraph was later treated in the article 353 of the Bill Project nº 8046/2010 (Chamber of Deputies), which aims to establish the new Brazilian Code of Civil Procedure. Based on the analysis of item LVI, Article 5 of the Constitution, from the perspective of the theories of illegal evidence and of the fruit of the poisonous tree, and from the principle of reasonableness (theories and principle upheld by the superior courts and applied in Brazilian law), this paper analyzes the relativization of the illegal evidence concept, of personal rights and other fundamental rights. The cited theories are not absolute; they can be tempered, not being, moreover, incompatible with the application of the principle of reasonableness, according to Brazilian law. The suppressed paragraph could make it possible to relativize the current rigorous rejection of illegal evidence, restoring to the judge the role of considering, on a case-by-case basis, the principles, rights of personality and fundamental rights, together with how evidences are raised within the specific circumstances of the case, so determining if the evidence can be admitted or not. The removal of the article in question translates into a hasty and thoughtless act of our lawmakers, which can deprive the parties of adequate protection in the event of violation of a higher moral law.