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Second Chamber of the Brazilian Federal Supreme Court (STF) annuls interrogation carried out during search and seizure in the house of investigated

The Second Chamber of the Brazilian Federal Supreme Court (STF) partially upheld the Complaint (RCL) 33711 to annul the questioning of Ailson Martins de Lima, former director of Maintenance and Supply of the Basic Sanitation of the Municipality of Mauá / SP (Sama), held during the realization of search and seizure in his residence. The decision was taken at the extraordinary session held on Tuesday morning (11).

In the complaint, the defense alleged that the police action violated the client's constitutional right to non-self-incrimination, ratified by the STF in the judgment of the Actions Against the Violation of a Constitutional Fundamental Right (ADPFs) 395 and 444, regarding the unconstitutionality of the coercive conduct of defendant or investigated to give testimony. Therefore, the defense asked for the nullity of the interrogation, called by the police authority as "interview", and the declaration of unlawfulness of the probative material produced from the contents extracted from the cell phone, which, as alleged, was irregularly apprehended.

In his vote, Justice Gilmar Mendes (rapporteur) considered that there was a violation of the right to silence and non-self-incrimination in carrying out an "interrogation disguised as an interview", documented during the proceedings. At the time, the rapporteur stressed, the defendant's right to prior consultate his lawyer was assured, and his right to silence and not produce evidence against himself was not certified.

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