9 29. The Court will examine this preliminary objection in the order in which the State presented its arguments. C.1) Mandado de segurança 30. The State argued that the representatives of COANA and ADECON filed a mandado de segurança before the Court of Justice of the state of Paraná (hereinafter also “the Court of Justice”) requesting that the telephone interceptions should cease and the recorded tapes be destroyed. This action was filed when the interceptions had ceased and, since it was not possible to respond to the request to suspend the surveillance, the action was considered unfounded and deemed to be extinct, without an examination of the merits. Based on this ruling, the representatives of the organizations filed embargos de declaração,20 arguing that the Court of Justice had failed to rule on the request for destruction of the recorded tapes. This remedy was rejected by the Court of Justice on the grounds that the said means of contestation was not admissible against decisions in which the merits had not been examined. No other remedies were filed and the decision that declared the mandado de segurança extinguished became final. 31. Brazil argued that the mandado de segurança was not an appropriate remedy for the alleged victims’ intended purpose. Pursuant to Article 5, subparagraph LXIX of the 1988 Federal Constitution (hereinafter “the Brazilian Constitution” or “the Constitution”), “[t]he sphere of application of the mandado de segurança is […] defined residually: it can only be filed when the real and specific right to be protected is not protected by habeas corpus or habeas data.” It added that “[a]s the mandado de segurança does not include the possibility of producing evidence […], it was not the appropriate juridical instrument to obtain a positive decision on the request to destroy the tapes.” It indicated that the Brazilian courts understand that habeas corpus is the appropriate remedy for requesting a declaration that evidence obtained by the presumed violation of the right to privacy is invalid. Moreover, considering that it was not possible to prove and declare that the recordings were illegal using the mandado de segurança, this action would not have been an adequate remedy for deciding that the recorded tapes should be destroyed. 32. The State also indicated that the decision that ruled the mandado de segurança extinct was delivered according to the case law of the Brazilian higher courts. The State indicated that although this instrument was inappropriate, if the alleged victims chose it in order to request that the alleged violations cease, they should have exhausted all possible remedies within the framework of that action, which would have entailed filing a recurso ordinário constitucional.21 This would have allowed the Superior Court of Justice to review the ruling and to examine the request that the recorded tapes be destroyed. In the State’s opinion, the Commission erred by not taking into consideration the fact that the petitioners still had this remedy available to them, that they did not use the appropriate mechanisms that were available to protect their rights in the domestic sphere, and that the denial of a remedy that is inappropriate cannot constitute the exhaustion of domestic remedies. Furthermore, the petitioners could have availed themselves of ordinary justice, through an 20 The remedy known as embargos de declaração is merely a means of clarification that does not entail a review of the merits of the contested decision. It is admissible if the judicial decision appealed is unclear, ambiguous or omissive on a point on which there should have been a ruling. This remedy is heard and decided by the court that delivered the contested decision. Code of Civil Procedure (Merits file, tome IV, folio 1852). 21 Code of Civil Procedure, supra note 20, folio 1828. Art. 539. The following shall be heard using an ordinary remedy: […] II – by the Superior Court of Justice: (a) the mandados de segurança decided in a single instance by the Federal Regional Courts or by the courts of the States and of the Federal District and Territories, when the decision has been a denial; […]