35
impossibility of the complainant to procure evidence, when it is the State that controls the
means of clarifying facts that occurred on its territory.123
128. The Court has no evidence of the content of all the intercepted telephone
conversations and the individuals involved, because the transcripts of the recorded material
were not provided to the case file of the monitoring petitions (despite the provisions of
Article 6 of Law No. 9,296/96), or to the file of the instant case. Consequently, the Court
finds it reasonable to grant probative value to the evidence arising from the case file.
Bearing in mind, therefore, the duration of the telephone monitoring and the role played in
the organizations by Delfino José Becker and Pedro Alves Cabral who, at the time of the
facts were, respectively, a COANA Board member and the President of ADECON,124 it is very
possible that their communications were intercepted. Thus, even though it is not possible to
prove the interception directly and with total certainty, the Court concludes that there was
also interference in the private live of Delfino José Becker and Pedro Alves Cabral.
129. Since the telephone conversations of the alleged victims were private and they had
not authorized that their conversations be conveyed to third parties, the interception of the
conversations by State agents constituted interference in their private life. Therefore, the
Court must examine whether this interference was arbitrary or abusive in the terms of
Article 11(2) of the Convention or whether it was compatible with the said treaty. As
indicated previously (supra para. 116), to conform to the American Convention any
interference must comply with the following requirements: (a) it must be established by
law; (b) it must have a legitimate purpose, and (c) it must be appropriate, necessary and
proportionate. Consequently, the absence of any of these requirements implies that the
interference is contrary to the Convention.
(a) Legality of the interference
130. The first step to evaluate whether a right established in the American Convention
can be adversely affected in light of that treaty consists in examining whether the
questioned measure complies with the requirement of legality. This means that the general
conditions and circumstances under which a restriction to the exercise of a specific human
right is authorized must be clearly established by law.125 The norm that establishes the
restriction must be a law in the formal and substantial sense.126
131. Taking into account that telephone interception can represent a serious interference
in the private life of an individual, this measure must be based on a law that must be
precise and indicate the corresponding clear and detailed rules,127 such as the
circumstances in which this measure can be adopted, the persons authorized to request it,
to order it and to carry it out, and the procedure to be followed.
123
Cf. Case of Velásquez Rodríguez, supra note 54, para. 135; Case of Ríos et al., supra note 18, para. 98, and
Case of Kawas Fernández, supra note 35, para. 95.
124
Cf. Minutes of the third General Assembly of COANA of March 13, 1999, supra note 71, folios 1021, 1039
and 1068, and Testimony of Delfino José Becker rendered before notary public on November 7, 2008, supra note
72, folio 968.
125
Article 30 of the American Convention establishes:
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.
126
Cf. The Word "Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86
of May 9, 1986. Series A. No. 6, paras. 27 and 32, and Case of Tristán Donoso, supra note 9, para. 77.
127
ECHR. Case of Kruslin v. France, judgment of 24 April 1990, Series A, No. 176-A, para. 33, and Case of
Huvig v. France, judgment of 24 April 1990, Series A No. 176-B, para. 32.
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