23
74.
Along such lines, the Court notes that from the application filed by the
Commission it appears that “the first disclosure [of the telephone conversation] was
made at a meeting held at the Office of the Attorney General with the members of
the Junta Directiva del Colegio Nacional de Abogados [National Bar Association
Governing Board]”, during which, according to the representatives, the former
Attorney General used expressions which affected the honor and reputation of Mr.
Tristán Donoso (supra para. 70). Consequently, such argument submitted by the
representatives is based on a fact described in the application and, so, may be
considered by the Court.
*
*
*
75.
The Court considers the telephone conversation between Mr. Zayed and Mr.
Tristán Donoso to have been private and that none of the two of them consented to
its disclosure to third parties. Moreover, as such conversation was held between the
alleged victim and one of his clients,68 it should even be afforded a greater degree of
protection on account of professional secrecy.
76.
The disclosure of the telephone conversation by a public official implied an
interference with the privacy of Mr. Tristán Donoso. The Court must examine
whether such interference was arbitrary or abusive under the terms of Article 11(2)
of the Convention or whether it was in line with such treaty. As it has been already
indicated (supra, para. 56), in order to be in line with the American Convention, an
instance of interference must meet the following standards: to be contemplated in
legislation, to serve a legitimate purpose, and to be suitable, necessary, and
proportionate. Consequently, the failure to meet any one of such standards implies
the measure runs contrary to the Convention.
Legality of the interference
77.
The first step in order to analyze whether an interference with a right
enshrined by the American Convention is in line with such treaty is to examine
whether the restrictive measure meets the legality standard. This means that the
general conditions and circumstances, which allow restricting the exercise of a
declared human right must be clearly established by statute.69 The rule, which allows
Judgment of May 11, 2007. Series C No. 164, para. 121; and Case of Escué-Zapata v. Colombia. Merits,
Reparations and Costs. Judgment of July 4, 2007. Series C No. 165, para. 92.
68
Cf. Statements rendered before a public official whose acts command full faith and credit
(affidavits) by Ms. Aimée Urrutia-Delgado on June 24, 2008 (Case file on the merits, Book II, folio 521);
by Bishop Emeritus Carlos María Ariz on June 24, 2008 (Case file on the merits, Book II, folio 529) and by
Walid Zayed on June 26, 2008 (Case file on the merits, Book II, folio 533).
69
Article 30 of the American Convention sets forth that:
The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the
rights or freedoms recognized herein may not be applied except in accordance with laws enacted for
reasons of general interest and in accordance with the purpose for which such restrictions have been
established.