54
maintained that, in order to comply with the obligation to guarantee rights, the State must
not only prevent, but also investigate any violation of the human rights established in the
Convention, as well as re-establish the violated rights if possible, and repairing the damage
produced by the human rights violations.171
195. The duty to investigate is an obligation of means and not results. The Court has
stated repeatedly that the State must assume this du as a legal obligation and not as a
mere formality preordained to be ineffective,172 or as a measure of special interest that
depends on the procedural initiative of the victims or of their next or kin or on the private
contribution of probative elements.173 The existence of this guarantee constitutes one of the
basic pillars of the American Convention and of the rule of law in a democratic society,
according to the Convention.174
196. In addition, the Court has indicated that, for the State to comply with Article 25 of
the Convention it is not sufficient that remedies exist formally, but they must also be
effective in the terms of that provision.175 The Court has reiterated that this obligation
means that the remedy must be appropriate to combat the violation and that it must be
implemented by the competent authority.176
197. In accordance with the foregoing, the Court must decide whether the State has
violated the rights established in Articles 8(1) and 25(1) of the Convention, in relation to
Article 1(1) thereof. To this end, the Court has established that “[t]he elucidation of
whether the State has violated its international obligations owing to the actions of its
judicial organs may mean that the Court has to examine the respective domestic
proceedings.”177
198. Consequently, the Court will examine the claims relating to: (1) the mandado de
segurança, as well as the actions before the (2) criminal, (3) administrative and (4) civil
jurisdictions, in light of the standards established in the American Convention, and will
decide whether judicial guarantees and the right to judicial protection were violated during
these domestic proceedings.
1) Mandado de segurança
199. Regarding the alleged lack of an effective judicial remedy to protect the victims’
right to privacy, the Court indicated that the mandado de segurança was the appropriate
remedy in that regard (supra para. 36). However, when the victims filed this remedy, the
telephone interceptions had already ceased and the conversations had been disseminated
171
Cf. Case of Velásquez Rodríguez, supra note 54, para. 166; Case of Heliodoro Portugal, supra note 170,
para. 142 and Case of Ticona Estrada et al., supra note 170, para. 78.
172
Cf. Case of Velásquez Rodríguez, supra note 54, para. 177; Case of Tristán Donoso, supra note 9, para.
146, and Case of Kawas Fernández, supra note 35, para. 101.
173
Cf. Case of Velásquez Rodríguez, supra note 54, para. 177; Case of Ticona Estrada et al., supra note 170,
para. 84 and Case of Tristán Donoso, supra note 9, para. 146.
174
Cf. Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34, para. 82; Case of
Castañeda Gutman, supra note 9, para. 78, and Case of Bayarri, supra note 15, para. 102.
175
Cf. Ximenes Lopes v. Brasil. Preliminary objection. Judgment of November 30, 2005. Series C No. 139,
para. 4; Claude Reyes et al. v. Chile. Merits, reparations and costs. Judgment of September 19, 2006. Series C No.
151, para. 131; and Case of Castañeda Gutman, supra note 9, para. 78.
176
Cf. Acosta Calderon v. Ecuador. Merits, reparations and costs. Judgment of June 24, 2005. Series C No.
129, para. 93; López Alvarez v. Honduras. Merits, reparations and costs. Judgment of February 1, 2006. Series C
No. 141, para. 139, and Case of Claude Reyes et al., supra note 175, para. 131.
177
Cf. Case of Case of the “Street Children” (Villagrán Morales et al.), supra note 28, para. 222; Case of
Heliodoro Portugal, supra note 170, para. 126, and Case of Tristán Donoso, supra note 9, para. 145.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents