40
order authorizing the measure to the Prosecutor General’s Office, who may supervise the
procedure. The Court observes that, to the contrary, the Prosecutor General’s Office was
not advised of the interception orders and only received the file of the monitoring petition
on May 30, 2000; that is, more than a year after the interception orders were issued and
eleven months after the telephone interventions had ceased.
143. Additionally, Article 6, paragraph 1, of the said law stipulates that if the procedure
makes it possible to record the intercepted communication, it shall be transcribed. As
mentioned above, the transcripts of the recorded material were not provided to the case file
of the monitoring petition (supra para. 97). Consequently, in the instant case, the
provisions of Article 6 of Law No. 9,296/96 were not complied with.
Destruction of the recorded tapes – Article 9 of Law No. 9,296/96140
144. As established in Article 9 of Law No. 9,296/96, any recording that is not of interest
as evidence in the investigation or in the criminal proceedings shall be destroyed following a
judicial decision, at the request of the Prosecutor General’s Office or the interested party.
145. Regarding the argument concerning the judiciary’s refusal to destroy the tapes
obtained by the illegal monitoring, the Court notes that the destruction of the tapes does
not form part of the matters being examined in this case (supra paras. 37 and 38 and infra
para. 199) and that they were destroyed on November 23, 2002, by order of Judge Khater,
at the request of the Prosecutor General’s Office in the monitoring petition case file.
Consequently, the Court will not examine this argument.
*
*
*
146. The Court concludes that the telephone conversation interceptions and recordings
that are the object of this case did not comply with Articles 1, 2, 3, 4, 5, 6 and 8 of Law No.
9,296/96 and, therefore, were not based on the law. Thus, since they did not comply with
the requirement of legality, it is unnecessary to examine the purpose and necessity of the
interception. Based on the above, the Court concludes that the State violated the right to
privacy established in Article 11 of the American Convention, in relation to the obligation
embodied in Article 1(1) thereof, to the detriment of Arlei José Escher, Dalton Luciano de
Vargas, Delfino José Becker, Pedro Alves Cabral and Celso Aghinoni.
2(ii) Privacy,
conversations
honor
and
reputation,
and
dissemination
of
the
telephone
147. The Commission claimed that the recordings in question were in the hands of State
organs and were safeguarded by judicial confidentiality. The organs responsible for
ensuring this confidentiality failed to comply with their legal obligation, because the
information reached the press and was published by different media, affecting the privacy
and dignity of the victims. The recordings were not public information, so that their
dissemination without the authorization of the authors was illegal. In addition to
dissemination by the media, the contents of the conversations were again disseminated out
of context and the activities of members of COANA and ADECON discredited during the
press conference offered by the former Secretary of Security. The Commission considered
that, pursuant to Article 10 of Law No. 9,296/96, the former Secretary of Security was
140
Law No. 9,296 of July 24, 1996, supra note 128, folio 55.
Article 9. The recording that is not required as evidence shall be destroyed following a judicial ruling
during the investigation or the pre-trial criminal investigation, or subsequently at the request of the
Office of the Prosecutor General or the interested party.
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