65
iii) Obligation to investigate, prosecute and, if applicable, punish those responsible
for the human rights violations
244.
The Commission asked the Court to order the State to carry out “a complete,
impartial and effective investigation into the facts in order to establish the civil and
administrative responsibilities for the telephone interventions and recordings […] and their
subsequent dissemination.” It stated that “comprehensive reparation requires that the
State investigate the facts with due diligence, in order to prosecute and punish those
responsible”; that “[t]he victims have full access and capacity to act at all stages and in all
instances of these investigations, in accordance with domestic law and the provisions of the
American Convention,” and that “the State ensure effective compliance with the decision
adopted by the domestic courts, in compliance with this obligation [and that the] result of
the proceedings be published so that Brazilian society can know the truth.” In addition, it
considered that “while the State has not complied with its obligation to investigate, charge
and punish, […] it incurs in a continuing violation of the right established in Article 25 and
of the obligation embodied in Article 1(1) of the Convention.” It maintained that, in the
instant case, this violation would only cease with adequate reparation.
245. The representatives endorsed the Commission’s arguments and added that, despite
the fact that sufficient time had elapsed to constitute a statute of limitations in the
administrative sphere, the decision that acquitted Judge Khater of her functional
responsibility constituted “fraudulent res judicata” and, according to the Court’s case law,204
in such cases the ruling could be reviewed based on a decision by the Court.
246. The State affirmed that, in addition to the administrative proceeding filed before the
Corregedoria-Geral de Justiça in order to determine the responsibility of Judge Khater, the
Corregedoria of the National Council of Justice initiated a new proceeding with the same
purpose, so that her functional responsibility has been extensively analyzed and there was
no omission in the State’s actions. In addition, under Brazilian law, the possibility of
ordering sanctions in administrative matters prescribes after five years, and this period has
expired. Regarding the civil sphere, the State argued that two of the victims filed actions
for compensation and that one of these actions had already been decided in first instance.
247. In this case, the Court found that a violation of Articles 8 and 25 has been proved as
regards the criminal investigation into the dissemination of telephone conversations
conducted against the former Secretary of Security (supra para. 204). The Court also found
it proved that the State did not investigate the handing over and dissemination of the tapes
with the recorded conversations to one of the media, and did not establish the criminal
responsibility for this act (supra para. 205). Regarding the handing over and dissemination
of the tapes with the recorded conversations, in accordance with the criteria established in
the Court’s case law, the State must investigate the facts and take the necessary
measures. Also, regarding the other violations found, the Court considers that this
judgment, its publication and the compensation for the pecuniary damage are sufficient
measures of reparation.
iv) Training for officials of the Judiciary and the Police
248. The Commission asked the Court to order the State to adopt “measures to provide
training to police and justice officials on the limits to their functions and investigations, in
compliance with the obligation to respect the right to privacy.”
204
In this regard, the representatives mentioned Almonacid Arellano et al. v. Chile. Preliminary objections,
merits, reparations and costs. Judgment of September 26, 2006. Series C No. 154, para. 154.
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