A/HRC/22/52
their relatives and the public53 (subject only to legitimate national security limitations that
are adjudged to be strictly necessary by an independent and impartial judicial or quasijudicial tribunal)54; and to protect the physical and moral integrity of victims and witnesses
against reprisals and threats.55
30.
To meet the requirements of international law, such an investigative body must be
genuinely independent of the officials implicated in the violations.56 This implies not only a
lack of hierarchical or institutional connection but also a practical independence.57 Those
potentially implicated should have no supervisory role, whether direct or indirect, over
those conducting the investigation.58 In all cases, investigators must approach their task
with genuine impartiality and must not harbour preconceptions about the matter they are
investigating or the identity of those responsible for any fatalities. They should be
demonstrably free of undue influence.59 The investigators must evaluate the evidence
objectively and reach impartial conclusions.60 The authorities “must always make a serious
attempt to find out what happened and should not rely on hasty or ill-founded conclusions
to close their investigation or to use as the basis of their decisions”.61 The obligation to
carry out an effective investigation imposes a duty to seek mutual legal assistance from
other states, including those allegedly implicated in the violations, through diplomatic or
judicial inquiries, the results of which should also be disclosed.62
53
54
55
56
57
58
59
60
61
62
12
United Nations Joint Study on Secret Detention, op. cit., footnote 1, para. 292(f); ECtHR, Kelly and
Others v. United Kingdom, Application No. 30054/96, Judgment 4 May 2001, para. 118; Anguelova
v. Bulgaria, Application No. 38361/97, Judgment 13 June 2002, para. 140; IACtHR, Plan de Sanchez,
op. cit., footnote 45, para. 81; Moiwana Community v. Suriname, Judgment 15 June 2005, (Ser. C)
No. 124, para. 205.
See further paras. 38–43 below.
United Nations General Assembly Declaration on the Protection of All Persons from Enforced
Disappearance, Art. 13; Working Group on Enforced and Involuntary Disappearances, General
Comment on the Right to the Truth, in Annual Report of the Working Group, United Nations Doc.
A/HRC/16/48 (2011) para. 10; Inter-American Court of Human Rights, Kawas-Fernandez v.
Honduras, Merits, Reparations and Costs, Judgment 3 April 2009, (Ser. C) No. 124, para 205. The
United Nations Joint Study on Secret Detention, op. cit., footnote 1, para. 292(k), concluded that
under international human rights law “States have the obligation to provide witness protection, which
is also a precondition for combatting secret detention effectively”.
ECtHR, Güleç v. Turkey, no. 21593/93, paras. 81-82; Öğur v. Turkey, no. 21594/93, paras. 91-92.
The United Nations Joint study on Secret Detention, op. cit., footnote. 1, at para. 292(d), concluded
that “[i]nstitutions strictly independent of those that have allegedly been involved in secret detention
should promptly investigate any allegations of secret detention and extraordinary rendition”. See also
Marty III, op. cit., footnote 15, para. 55; and Flautre Report, op. cit., footnote 15, para. 3.2.
Batı and Others v. Turkey, no. 33097/96 and 57834/00, para. 135; Ergı v. Turkey, no. 23818/94,
paras. 83-84.
Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, para. 277.
See Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture, A
Commentary, pp. 531-532 (New York, Oxford University Press, 2008).
Finogenov and Others v. The Russian Federation, nos. 18299/03 and 27311/03, paras. 272, 274.
El-Masri, op. cit., footnote 26, para. 183.
IACtHR, Goiburd and Others v. Paraguay, Judgment 22 September 2006, (Ser. C) No. 153 (2006)
para. 5; United Nations Convention on Enforced Disappearances, op. cit., footnote 14, Article 14;
United Nations Basic Principles on Remedy and Reparation for Gross Human Rights and
Humanitarian Law Violations, op. cit., footnote 33, para. 4; International Law Commission Articles
on the Responsibility of States for Internationally Wrongful Acts, commended to the attention of
Member States by General Assembly Resolutions 56/83 of 12 December 2001 and 69/35 of 2
December 2004, (“ILC Articles on State Responsibility”), Article 41(1).
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