52
185. Lastly, the representatives considered that Judge Khater violated impartiality: (a) by
granting 45 orders to reinstate possession (mandados de reintegração de posse) in favor of
the latifundistas (large-scale landowners) of the northwestern region of Paraná, in a
minimum time; (b) by authorizing the request to intercept the COANA and ADECON
telephone lines submitted by the Military Police of Paraná who did not have the necessary
authority, without due legal grounds and without informing the Prosecutor General’s Office,
and (c) by her ties of friendship with the landowners. In addition, the Court of Justice of the
state of Paraná violated the principle of impartiality when considering the criminal
responsibility of Judge Khater and by not filing proceedings to establish her responsibility in
the administrative sphere despite strong evidence that she had committed an illegal act.
They concluded that not only was Judge Khater not found responsible for her conduct, but
she was rewarded in both the functional sphere, by being promoted to the Comarca de
Londrina, and the political sphere, by being distinguished by the legislature with the title of
honorary citizen of the state of Paraná.
186. The State asserted that Articles 8(1) and 25 of the Convention had not been
violated, because the victims had at least two options to claim their right, the recurso
ordinário constitucional and habeas corpus, in accordance with the said Article 25. If they
had used the appropriate remedy, they would have been heard with all the guarantees
established in Article 5 of the Constitution, including the prohibition of special courts
(tribunales de excepción), the principle of the natural judge, due legal process and the
guarantee of access to justice, in accordance with the provisions of Article 8(1) of the
Convention. It also indicated that during the mandado de segurança procedure, all the
guarantees of due process of law established in Law No. 1,533 of December 31, 1951, were
respected: this procedure was examined by the Court of Justice of the state of Paraná, the
competent body; the decision was handed down according to case law, and an appropriate
remedy was available to the parties to appeal the decision.
187. The State added that the judicial decision authorizing the interception of the
telephone lines of COANA and ADECON occurred due to an error of the judge concerning
the appropriate legal procedure. That error was extensively investigated in the three
spheres of the State’s responsibility: criminal, administrative and civil, with the resulting
conclusion that the situation did not merit the assessment of this error by an international
court. It indicated that, as a result of the criminal action (representação criminal) filed by
the victims, the Court of Justice of the state of Paraná concluded that the mere request for
interception did not constitute an offense; hence the military police agent who requested
the interception could not be charged with criminal liability. The same conclusion was
applied to the former Secretary of Security in relation to recommending the interception.
Regarding the conduct of the judge, the court decided that she did not act in bad faith or
with criminal intent, so that her error did not constitute an offense. In addition, the former
Secretary of Security was acquitted in second instance because it was proved that he was
not the person responsible for the partial dissemination of the content of the tapes. The
State indicated that the “Commission itself [in its application] stated that there was no
evidence to show that the criminal proceedings had been conducted irregularly or to the
detriment of the rights guaranteed in the American Convention.” The State considered that
it was inadmissible to decide that there had been a violation of Articles 1(1), 8 and 25 of
the Convention simply because the decisions handed down by the domestic courts of law
were not favorable to the victims, and even less considering that the latter could have
availed themselves of domestic remedies to try and reverse the decision.
188. The State affirmed that there had been no negligence in the administrative
proceeding established by the Corregedoria Geral da Justiça regarding the conduct of Judge
Khater, and “considered that the facts had already been examined by the Special Organ of
the Court [of Justice] during the criminal investigation proceeding, and it had ruled that
[this official] had not acted with criminal intent.”
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