A infiltração policial como meio de investigação de prova nos delitos relacionados à criminalidade organizada

Abstract

This dissertation is essentially aimed at the study of the undercover agent role as means of investigation for obtaining evidence regarding crimes related to criminal organizations, mainly considering the Brazilian legal system. To so proceed, it is initially analyzed the concept of organized crime and its legislative evolution, along with the pressing necessity of creating a coherent legal definition for it. Then, it is also considered the evidence matter in criminal procedure, highlighting its definition and classification; and also regarding the means of investigation for obtaining evidence in the strive against organized crime, such as the use of undercover police officers. After this introductory section, this dissertation focuses on the undercover activity itself, pointing out its historical background, its concept and objectives, its legal definition in the Brazilian legal system, its modalities, the recommendations given by the United Nations Convention Against Transnational Organized Crime concerning the topic herein, the class of police officers who can work as undercover agents, and the ethical dilemma inherent to the activity. Also, special attention is given to the issues related to the criminal liability of the agent for the actions performed by him while undercover; to the possibility of using this evidence found by the undercover agent as grounds for conviction; and to the difference between the agent that, while undercover, merely participates in pre-existing actions, from the agent that takes active part in the criminal’s decision of committing a crime. Furthermore, it is debated whether the undercover agent should be heard as a witness; and how to make this mean of investigation harmonize with the guarantees foreseen in the Brazilian Constitution, based on the principle of proportionality. In a brief Comparative Law study, it is also demonstrated the different solutions offered by several countries – Germany, Argentina, Spain, United States of America, France and Portugal – to the questions raised herein. Finally, the Bill n. 3.731/1997, introduced in order to regulate the activity performed by the undercover agent and currently under debate before the Brazilian Federal Senate, is examined in the last Chapter of this paper; closing with a suggestion made for a new Bill that regulates all the controversial aspects of the undercover agent character in Brazil.