Virtual violation of domicile constitutes a crime
Article 150 of the Criminal Code establishes the crime of Domestic Violation , punishing the conduct of “entering or remaining, clandestinely or cunningly, or against the express or tacit will of those who, in law, in another’s house or in their dependencies “.
It should be noted that the criminal type in question has the purpose of protecting the fundamental right provided for in Article 5, XI, of the Constitution of the Republic, which establishes that the house is an “inviolable asylum of the individual”, thus preserving its intimacy and private life.
In the lessons of HUNGARY, “in the indecisive or arbitrary incursion into the home of others, the interest of the tranquility and security of the individual’s private or private life, that is, of the indeclinable conditions to the free expansion of the human personality, is harmed.”
In discussing the crime of violation of domicile, Rogério Greco teaches the following:
To enter , here, in the sense employed by the text, means to invade, to exceed the limits of the house or dependencies. It presupposes a positive behavior. Remaining , on the contrary, must be understood in the sense of not wanting to leave. Only, therefore, remains the one who was already legally present, thus visualizing a negative behavior.
Also according to the criminal type, for the crime to be characterized it is necessary that the agent enters or remains in the home of others in a clandestine , cunning manner , or against the express or tacit will of those who are entitled.
Having made these statements, we asked: would it be possible to speak of a virtual violation of domicile ? Imagine the situation of a couple who rent an apartment and during the stay realizes that in the room where they shared their intimacies had been installed a camera hidden by the owner of the property.
This occurred recently in the city of São Vicente, on the coast of São Paulo. The facts were duly registered at the local police station, with camera seizure and police investigation.
But what crime has the owner of the property practiced? Is voyeurism , in this circumstance, a criminal offense? It is undeniable that the conduct in question characterizes a manifest violation of the intimacy of the couple, which can be indemnified in the civil sphere.
In the criminal court, however, the case is not so simple, since there is no specific criminal type for this conduct. In this sense, it seems essential for the legislator to be attentive to technological developments and to clearly define similar behavior, as occurred in Article 154-A, which deals with the invasion of computer equipment and which had as its most famous victim the actress Carolina Dieckmann .
Notwithstanding the absence of a specific criminal type, we understand that the conduct in question is not atypical, characterizing, at the latest, the crime of Article 150 of the Criminal Code.
First, it should be noted that the legal concept of house is provided for in Article 150, §4, of the CP, covering any inhabited compartment, occupied room of collective housing or compartment not open to the public, where someone carries on a profession or activity.
In the lessons of BITENCOURT, the expression ” any dwelling ” has sufficient scope to avoid any doubt regarding temporary or temporary dwellings , including, in particular, hotel rooms or, what is even more evident, immovable property, such as in the case on screen.
Having overcome this question, we now need to study the conduct punished by article 150 of the CP. In fact, it seems to us that by clandestinely installing a camera in the room of the building, the landlord violates another’s home remotely or virtual. This, then, his conduct denotes the intention to remain in the place, that is, not to leave when he should.
We understand that this is not an analogy to the detriment of the defendant, but of an extensive interpretation of the type, after all, at the time of drafting the legal text, the legislator did not envisage technological developments. Now, the criminal type refers to the conduct of entering and staying , which can be done physically or virtually.
It is the case of a drone that travels quietly through the premises of a residence, recording all the images that can be seen in real time by its user, thus shaking the domestic tranquility.
From the point of view of the protected legal good, we do not see any difference between the conduits. The intimacy of the victim is being violated in the same way. When installing a hidden camera in the property, the agent acts with deceit to remain in it, as if he himself was hidden behind a false bottom.
In this context, it is a crime committed by omission, since the agent stays in the place (although virtually) when he should leave.
On the subject, it is worth conferring the position of the doctrine in relation to the cause of increased penalization of the feminicide committed “in the presence of a descendant or an ascendant of the victim” (art.121, §7º, subsection III). According to GRECO’s teaching:
In order to be able to apply the addition of subsection III of §7 of art. 121 of the Criminal Code, it is necessary that the feminicide was practiced in the presence of a descendant or an ascendant of the victim, that is, any of the relatives mentioned must witness …). This can happen either with a physical presence, that is, the victim’s descendant or ascendant can be in the same place where the crime of death is committed, or can also be seen virtually, through a computer that captured the images in the scene of the crime.
Indeed, if the said feminicide enforcer applies when the crime is committed in the virtual presence of ascendant or descendant, it seems to us that the same reasoning must be adopted in the case of virtual violation of domicile, without any analogy being considered in prejudice of the agent.
For all this, we consider that the case in point is perfectly adequate in Article 150 of the Criminal Code, which is a crime with less offensive potential, subject to the measures decriminalizing Law 9.099 / 95.