12
delay in processing it had occurred. It indicated that, according to the principle of
subsidiarity, the domestic solution provided by the State should be respected unless
manifestly illegal. In this case the Commission stated expressly that there was no evidence
that the judicial proceedings or the decisions handed down were flawed. It asked the Court
to remedy the situation, by not admitting the application and avoiding acting as a fourth
court of review.
40.
In addition to the arguments indicated above (supra para. 33) regarding the
investigation and the criminal action, the Commission alleged that when establishing the
factual framework of the instant case, it had emphasized the flawed judicial activities
designed to investigate the violations, and their failure to conform to the standards
embodied in the Convention. The facts mentioned reveal a violation of the rights to judicial
protection and guarantees, so that a decision on this matter, namely the effectiveness of
domestic remedies, does not correspond to a preliminary objection, but should be
elucidated as part of the merits of the case.
41.
The representatives stated that the representação criminal filed by the alleged
victims against the agents supposedly involved in the telephone interception and the
dissemination of the recorded tapes is “the basic domestic remedy to obtain justice and not
the mandado de segurança, the purpose of which was only to end the illegal interceptions.”
*
*
*
42.
Regarding the filing of criminal remedies, the Court finds that their purpose was to
determine the existence of a punishable fact and, if applicable, the criminal responsibility of
the alleged perpetrators. Hence, their purpose was different but complementary to the one
sought by the mandado de segurança, which sought an immediate ending to the
interception and recording of the telephone conversations.
43.
The Court observes that, during the admissibility stage before the Commission, the
State provided information about the existence of several criminal actions and the progress
made, denying that there had been delays in processing them.24 Also, in its brief of October
12, 2005,25 the State indicated that the criminal action against the Secretary of Public
Security of the state of Paraná at the time, Cândido Martins, had concluded. Thus, the
documentary evidence shows that when the Commission issued its Admissibility Report No.
18/06 of March 2, 2006,26 the investigation against Judge Elisabeth Khater and the police
agents supposedly involved in the telephone interception had already been closed, while the
criminal action against the abovementioned Secretary of Public Security had ended with his
acquittal.27 Consequently, the Court finds that, in the instant case, the representatives had
24
Cf. Record of the hearing of November 14, 2001, held with the representatives and the State before the
Inter-American Commission (file of attachments to the application, tome II, appendix 3, folios 928 and 931); the
State’s brief concerning the admissibility of case 12,353, presented on November 14, 2001 (file of attachments to
the application, tome II, appendix 3, folio 934), and the State’s brief presented on October 12, 2005, with
additional information concerning the admissibility of case 12,353 (file of attachments to the application, tome II,
appendix 3, folios 835 and 836).
25
Brief with additional information from the State presented on October 12, 2005, supra note 24, folios 835
and 836.
26
Cf. Admissibility Report No. 18/06 of March 2, 2006 (file of attachments to the application, tome 1,
appendix 2, folio 43).
27
Cf. Decision No. 4745 of the Special Organ of the Court of Justice of the state of Paraná of October 6, 2000,
in criminal investigation No. 82,516-5 (file of attachments to the application, tome I, attachment 9, folios 99 and
100), and decision of the Second Criminal Chamber of the Court of Justice of the state of Paraná of October 14,
2004, in criminal appeal No. 153.894-1 (file of attachments to the application, tome I, attachment 10, folio 114).