56
judgment of the Second Criminal Court of the Comarca of Curitiba. Nevertheless, on appeal,
the Second Criminal Chamber of the Court of Justice of the state of Paraná decided to annul
the conviction and acquit him (supra para. 106), based on the argument that “the [former
Secretary of Security] did not violate the judicial confidentiality of the information obtained
by the telephone interception, because the judicial confidentiality of information that had
already been broadcast the previous day on a widely-watched news program on a television
network, could not be violated.”181
204. The Court has indicated that, without judicial authorization, the former Secretary of
Security revealed the audio version of the recordings to other people and distributed
printed fragments of the conversations, and he may also have disseminated new portions of
the recordings (supra paras. 95 and 156). Despite the differences between the testimony of
the former Secretary of Security and that of the three journalists summoned to give
testimony about what happed during the press conference, particularly with regard to the
distribution of transcripts of parts of some of the intercepted conversations and the audio
reproduction of the recordings during the said event, no other evidence was sought that
might have clarified the facts. In this regard, the respective television channels were not
asked to provide the tapes with the news items broadcast on the Journal Nacional on June
7 and 8, 1999, or the recording of the said press conference. Hence, the Court considers
that the Second Criminal Chamber of the Court of Justice of the state of Paraná concluded
that the former Secretary of Security did not disseminate new extracts of the telephone
conversations without having this evidence or comparing the material involved in the two
disseminations.182
205. The Court also observes that the State did not take other investigative measures
that could have determined who was responsible for the first dissemination of the recorded
material; namely the delivery of the tapes to the television channel. Despite the findings in
the judgment of the Court of Justice of the state of Paraná in relation to the evidence about
who was the author of the delivery of the recorded tapes to the press, the principal suspect
being a member of the Military Police, no measures were taken to clarify these facts and, if
applicable, punish those responsible, despite the provisions of Article 10 of Law No.
9,296/96 and the fact that the offense of the breach of judicial confidentiality should have
been investigated by the State ex officio.
206. Based on the above, the Court indicates that the absence of a response by the State
is a determining element when assessing whether non-compliance with Articles 8(1) and
25(1) of the American Convention exists, because it is directly related to the principle of
effectiveness that must characterize the implementation of such investigations.183 In the
instant case, the State authorities did not act with due diligence or in accordance with the
provisions of the said Articles concerning the obligation to conduct an investigation (infra
para. 214).
3) Administrative procedure
207. On November 17, 1999, an administrative proceeding was filed against Judge Khater
which culminated in the decision of September 28, 2001, by the Corregedoria-Geral da
181
Cf. Decision of the Second Criminal Chamber of the Court of Justice of the state of Paraná of October 14,
2004, supra note 27, folio 114.
182
Cf. Case file of Criminal Appeal No. 153.894-1 (file of attachments to the answer to the application, tomes II
to IV, attachment 18, Volumes 1 to 3, folios 2289 to 2928), and decision of the Second Criminal Chamber of the
Court of Justice of the state of Paraná of October 14, 2004, supra note 27, folios 109 to 114.
183
Cf. García Prieto et al. v. El Salvador. Preliminary objections, merits, reparations and costs. Judgment of
November 20, 2007. Series C No. 168, para. 115; Case of Heliodoro Portugal, supra note 170, para. 157, and Case
of Ticona Estrada et al., supra note 170, para. 95.
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