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sufficient to give rise to the State’s responsibility, [because] evidently the Judiciary’s
actions can determine the international responsibility of the State.” Regarding the State’s
claim that the criminal and administrative proceedings had been processed very diligently,
the Commission recalled the Court’s case law on the concept of fraudulent res judicata and
stated that “this concept […] results from a trial in which the rules of due process have not
been respected, or in which the judges did not act with independence and impartiality [and
that, in] the instant case, it had been proved that the proceeding before the domestic
courts was flawed owing to these serious defects.” In its final written arguments, the
Commission reiterated that an investigation should be conducted to determine the
administrative or any other responsibilities of the public officials involved in the violations
that had occurred and insisted that the State had the obligation to investigate the human
rights violations, prosecute those responsible and avoid impunity.” It concluded that the
State violated the victims’ right to due judicial guarantees, as well as the possibility of a
prompt, effective and simple remedy as established in Articles 8 and 25 of the American
Convention in relation to Article 1(1) thereof.
183. The representatives indicated that Brazil had violated the judicial guarantees of
Article 8 and the judicial protection of Article 25 of the Convention: (a) by authorizing the
telephone interception by means of a judicial decision delivered contrary to the provisions
of Law No. 9,296/96 and Articles 5, paragraph XII, and 93, paragraph IX, of the Federal
Constitution; (b) by the dissemination of the intercepted telephone conversations to the
written and television media by the former Secretary of Security; (c) by not guaranteeing
an effective judicial remedy to prevent the continuation of the illegal telephone
interceptions and to ensure the destruction of the recordings; (d) by failing to guarantee
the due impartiality and independence of the trial court during the criminal investigation;
(e) by not ensuring that the victims had a remedy that required an administrative
investigation to establish the responsibility of the public agents involved in the
interceptions, and (f) by not guaranteeing an effective judicial remedy, within a reasonable
time, to make civil reparation for the damage caused by the illegal interceptions and the
dissemination of the recordings by the public agents.
184. The representatives stated that, following the decision of the Court of Justice of the
state of Paraná, the victims filed embargos de declaração to correct the omission of the
ruling as regards the request to destroy the tapes. The said court refused to admit this
remedy and maintained its original decision concerning the extinction of the mandado de
segurança since the purpose had ceased to exist, without examining the request to destroy
the tapes. The representatives added that the recurso ordinário constitucional would not
have been effective for the victims because the violation of the right to honor and privacy
had already been perpetrated; the intention was to prevent the continuation of the violation
over time and they had therefore filed the mandado de segurança. Since the interceptions
had already been suspended owing to a decision of the judge of the Comarca de Loanda,
there was no need to file the recurso ordinário constitucional before the Superior Court of
Justice. They indicated that the victims filed a criminal action (representação criminal)
before the head of the Office of the Prosecutor General of the state of Paraná (Procurador
Geral de Justiça) against the public agents supposedly involved in the illegal interceptions
for the offenses of usurpation of public functions and abuse of authority, among other
aspects. However, none of the public agents was declared responsible by the Brazilian
Judiciary. Moreover the administrative department of the Court of Justice did not sanction
Judge Khater administratively, “despite [this court’s] express recognition that the right to
privacy protected by the Constitution had been violated. They stated that the victims had
filed civil actions to obtain reparation before the courts in May 2004 and, to date, no final
ruling had been made and no time limit has been set for concluding these actions;
consequently, the cases had not been decided within a reasonable time.
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