Extração compulsória de material biológico para fins de identificação criminal: a resposta adequada à Constituição à luz da Crítica Hermenêutica do Direito

Technological advances in the second half of the 20th century brought innovations that still stir controversy in the criminal prosecution scenario. A relevant disagreement concerns the possibility of compulsory collection of biological material to obtain a genetic profile, even in relation to individuals with civil identification, as provided for in Law no. 12.037/2009 (art. 3, item IV, and art. 5). Although the controversial legal issue is unique (compulsory collection of genetic material for criminal prosecution), diametrically opposed decisions have been issued by the courts. Given this context, the question is: is it possible for such dissonant decisions to be equally in line with the Constitution? From the perspective of the criminal procedure guarantee, what effects result from a decision that is constitutionally inadequate in relation to the legal question posed? Based on the analysis of conflicting judgments, this article investigates whether, among them, there is a constitutionally adequate judicial response to the controversial legal issue, from the perspective of the Hermeneutic Critique of Law (CHD), coined by Lenio Luiz Streck. At the end, the text adds a critical approach, expanding the reflection on the impacts of constitutionally inadequate decision-making in relation to the collection of genetic material for the purposes of criminal prosecution.