Secretly Recorded Evidence and the Right to Justice

Brazil’s Superior Court of Justice (STJ) ruled that clandestine environmental recordings may be considered valid evidence when the right being protected outweighs the offender’s privacy. In a case involving the alleged rape of a vulnerable person, the defense argued that the recording was unlawful under Law 9.296/1996 because it was made without the knowledge of the police or prosecution. However, the court determined that given the severity of the crime and the lack of alternative means to prove it, the recording was admissible.

Justice Ribeiro Dantas, the case’s rapporteur, emphasized that while the Constitution guarantees privacy and image protection, these rights are not absolute. He referenced Brazil’s Anti-Crime Package (Law 13.964/2019), which allows recordings by one of the interlocutors without prior authorization, provided the integrity of the recording is ensured. In this case, since the victim was unconscious, the court ruled that the recording was proportionate and lawful, allowing the criminal proceedings to continue.

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