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Revista de la Secretaría del Tribunal Permanente de Revisión

On-line version ISSN 2304-7887

Abstract

TOLEDO1, Nathalia Lenzi Castro. Public order as a filter for efficiency not Brazil gives prova obtained not external. Rev. secr. Trib. perm. revis. [online]. 2020, vol.8, n.15, pp.123-147. ISSN 2304-7887.  https://doi.org/10.16890/rstpr.a8.n15.p123.

To what extent can public order be invoked to avoid the effectiveness of the evidence obtained abroad? Is it possible to point out, in an abstract way, the limits to the validity or effectiveness of the evidence obtained abroad? To answer these questions, an exploratory investigation and a bibliographic review were chosen as the methodology. The work was organized as follows: (1) introduction; (2) public order; (3) international legal cooperation; (4) law applicable to taking evidence abroad; (5) the public order filter; (6) the challenge of international legal cooperation; conclusion. The state of the art of international legal cooperation in the Brazilian legal system for obtaining evidence abroad is analyzed. Reflecting the increasing circulation of goods, services and capital between different countries, the work covers the concept of public order of private international law, the institutes of international legal cooperation applicable to the taking of evidence by a foreign State and the preference to apply the lex diligentiae for obtaining evidence internationally. It is shown that the offense to public order prevents the effectiveness in Brazil of the laws, acts and sentences of another country, but it is emphasized that the concept of public order is marked by not being definable and by its ability to change over time and the space. Next, some of the most famous controversies involving transnational evidentiary production are presented, in order to understand to what extent each situation would be susceptible to the filter of Brazilian public order. It was identified that there is a legal xenophobia on the part of the Brazilian judges that prevents the effectiveness of a foreign act, abusing the use of the public order clause against acts different from those practiced in the Brazilian territory, generating a true legal insecurity for the interested parties . In such cases, the decision is illegal. Therefore, it should be concluded that the use of public order should only be done when absolutely necessary, that is, when the evidence itself or the procedure adopted to obtain it are shocking to the mentality and average sensitivity of Brazilian society. Finally, it should be concluded that the Brazilian legal system still lacks regulations that ensure compliance with applicable human rights principles while providing predictability and legal certainty with regard to international legal cooperation in obtaining evidence.

Keywords : International legal cooperation; Brazil; LINDB; Public order; Evidences.

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