55
(supra paras. 37, 94 and 97). Consequently, the mandado de segurança was unable to
produce the desired result in the specific case, not because of a circumstance that could be
attributed to the State or to the victims, but because the facts that were alleged to have
violated specific rights had ceased. Also, the request for the destruction of the tapes
included in the mandado de segurança was not the appropriate mechanism for producing a
suspension of the interception and the dissemination that had already taken place, but was
aimed at preventing fresh disseminations in the future (supra para. 38), so that its analysis
does not form part of the merits of the instant case. The Court also observes that domestic
law includes remedies that could result in the destruction of the tapes, which were not used
in this case (supra para. 37). Consequently, the Court finds no evidence that there has
been a violation of Articles 8 and 25 of the American Convention in this regard.
2) Criminal jurisdiction
200. According to the facts and the evidence in the case file, criminal investigation No.
82,516-5 originated from a complaint against the former Secretary of Security, Judge
Khater, Colonel Kretschmer, Major Neves and Sergeant Silva, for the possible perpetration
of the offenses of usurpation of public functions, illegal telephone interception, breach of
judicial confidentiality, and abuse of authority. This investigation culminated in decision No.
4745 of the Special Organ of the Court of Justice of the state of Paraná deciding to close
this proceeding against the said public officials as regards the telephone interception, and
to forward the case file to a court of first instance for the examination of the conduct of the
former Secretary of Security in relation to the intercepted conversations (supra para. 105).
201. To reach this conclusion, the Court of Justice of the state of Paraná considered that
the “mere request for a telephone interception does not constitute […] a criminal offense,
so that the conduct of the military police involved does not fall with the definition of an
offense.”178 Regarding the actions of Judge Khater, it considered that “despite the errors
made by the judge, which on first examination constitute function-related errors,”179 it had
not been proved that she acted with criminal intent, so that she could not be considered to
have committed a criminal act. Lastly, in relation to the actions of the former Secretary of
Security, it considered that “[his] situation is different because it has been proved that
during the collective interview he disseminated the content of the intercepted conversations
and even decided to distribute abundant material in this regard.”180
202. From the evidence in the case file, the Court finds that the statements of those
allegedly responsible were taken during the criminal investigation, together with those of
the complainants and of other persons. Based on these statements, and on the legal
considerations mentioned above (supra para. 201) the Court of Justice of the state of
Paraná considered that the only conduct that could be criminally prosecuted was that of the
former Secretary of Security. The Court finds that the body of evidence does not include
elements for analyzing a possible violation of Articles 8(1) and 25(1) of the American
Convention, in relation to Article 1(1) thereof, with regard to this first phase of the criminal
proceedings.
203. Pursuant to the ruling of the said court, a criminal action was filed against the
former Secretary of Security for the alleged dissemination of the intercepted telephone
conversations and the said official was sentenced and convicted in first instance by a
178
Decision No. 4745 of the Special Organ of the Court of Justice of the state of Paraná of October 6, 2000,
supra note 27, folio 102.
179
Decision No. 4745 of the Special Organ of the Court of Justice of the state of Paraná of October 6, 2000,
supra note 27, folio 104.
180
Decision No. 4745 of the Special Organ of the Court of Justice of the state of Paraná of October 6, 2000,
supra note 27, folio 105.
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