STJ: Ministro valida prova obtida por espelhamento do WhatsApp
Ministro Reynaldo Soares da Fonseca, do STJ, validou provas obtidas por meio de espelhamento de conversas no WhatsApp Web. De acordo com S. Exa., a técnica investigativa é possível “desde que respeitados os parâmetros de proporcionalidade, subsidiariedade, controle judicial e legalidade, calcado pelo competente mandado judicial, como ocorrido na hipótese presente”.
Trata-se de recurso contra decisão que considerou nulas provas obtidas por meio de espelhamento de aplicativo de comunicação, sob o argumento de que o meio não é admitido pelo ordenamento brasileiro.
Ao analisar o pedido, o ministro concluiu que há legalidade na referida manobra policial, com subsequente aproveitamento das provas, desde que o ato esteja amparado por autorização judicial.
“A chancela jurídica, portanto, possibilita o monitoramento legítimo, inclusive via espelhamento do software WhatsApp Web, outorgando funcionalidade à persecução virtual, de inestimável valia no mundo atual. A prova assim obtida, via controle judicial, não se denota viciada, não inquinando as provas derivadas, afastando-se a teoria do fruits of the poisounous tree na hipótese. ”
O ministro pontuou, ainda, que a lei de interceptação, em combinação com a lei das organizações criminosas, na hipótese, “outorga legitimidade (legalidade) e dita o rito (regra procedimental), a mencionado espelhamento, em interpretação progressiva, em conformidade com a realidade atual, para adequar a norma à evolução tecnológica”.
No mais, asseverou que não há empecilho na utilização de “ações encobertas” ou “agentes infiltrados na persecução de delitos”, pela via dos meios virtuais, desde que conjugados critérios de proporcionalidade.
Assim, em seu entendimento, “pode o agente policial valer-se da utilização do espelhamento pela via do software WhatsApp Web, desde que respeitados os parâmetros de proporcionalidade, subsidiariedade, controle judicial e legalidade, calcado pelo competente mandado judicial, como ocorrido na hipótese presente”.
Nesse sentido, determinou que o Tribunal a quo prossiga no julgamento da ação, considerando válida a prova obtida via espelhamento do WhatsApp Web, anteriormente invalidada.
STJ reconhece legalidade do espelhamento via WhatsApp Web.(Imagem: Freepik)
Análise
Para Verifact, empresa especializada em coleta e preservação de provas digitais, “a decisão do STJ representa um avanço no campo da obtenção de provas digitais, reconhecendo a importância de técnicas modernas de investigação e abrindo caminho para o uso adequado do espelhamento via WhatsApp Web. É fundamental que as autoridades e os advogados estejam cientes dessas possibilidades e utilizem meios de coleta de provas confiáveis”.
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