Audiência de custódia: possibilidade de utilização da oitiva do conduzido como meio de prova

Abstract

This article argues for the possibility of using the detainee’s statement obtained during a custody hearing as a means of evidence. Initially, it addresses the contextualization of custody hearings in Brazil, with particular emphasis on the decisive role played by the Federal Supreme Court. It then proceeds to analyze the domestic legal framework governing arrest in flagrante delicto, demonstrating the insufficiency of merely forwarding the arrest report as a mechanism for judicial oversight.

Subsequently, the study highlights the importance of international human rights treaties, specifically the American Convention on Human Rights (Pact of San José, Costa Rica) and the International Covenant on Civil and Political Rights, both incorporated into the Brazilian legal system with supra-legal status. It further examines how domestic regulation fails to fully ensure the rights of detainees, thus making the implementation of custody hearings a fundamental measure.

In this context, several rulings of the Inter-American Court of Human Rights are discussed, along with a comparative analysis of the subject. The article also emphasizes domestic initiatives aimed at regulating custody hearings, particularly Bill No. 554/2011, recently approved by the Federal Senate.

Finally, after analyzing the concepts and restrictions related to the use of evidence in comparative law, the study concludes that, although custody hearings are not the appropriate stage for evidentiary production, any elements obtained therein may and should be considered within the broader scope of criminal proceedings.