THE CIRCULATION OF THE INVALIDITY OF EVIDENCE

The circulation of the legal flow of evidence is a subject not regulated by the criminal code, and then, a phenomenon difficult to rule. The nature of the question "transversal" that characterizes the circulation of invalidity, requires a catalog and a consequent differentiated discipline depending on the nature of the invalidity or on the act comes into play, and also on the type of judgment by which the legal flow has been - or not - declared. There are several points that you are able to indicate. First, in accordance with the criminal procedure discipline of invalidity, evidence, to circulate, it must be valid. Assumption implies distinct solutions. If the defect is crystallized in an irrevocable judgment, any attempt to transmigration of the evidence is prevented by the force “res iudicata” of the point of final sentence that takes care of it. Ignore the force of res judicata on the specific quaestio iuris have the effect of bypassing the rules on the legality of the evidence. Completely different, or rather speculate, when the final judgment does not consider the invalidity of evidences. Subjects of the proceedings in which evidence may be re-used retain the rights to criticize the admission and acquisition: there’s not the force of res judicata; consequentially, there is no reason to desert from the ordinary’s rules. According to this assumption there are two corollaries. No preclusive effect can be recognized at decisions susceptible to modifications. Then finally, relations between both proceeding are pending: the request to admit an evidence in another proceeding involves a legal transformation of the same: the evidence of the first proceeding becomes an act of the second. It follows that the protagonists of this one does not meet any limit even if, hypothetically, the legal flow has been declared in the first proceeding. The evidence, in fact, must be evaluated in relationship with charges and subjects of the second proceeding. In order to clarify these statements you have examined a specific case: the regulation of the circulation of the phone tapping.