A/HRC/45/13/Add.3
Annex
Annex on jurisprudence and related policies of the thematic
Report of the Working Group on Enforced or Involuntary
Disappearances: Standards and Public Policies for an
Effective Investigation of Enforced Disappearance
I. The elements of the obligation to investigate enforced
disappearances and obstacles thereto
1.
The obligation for States to investigate enforced disappearances is well codified in
international law namely in the 1992 Declaration on the Protection of All Persons from
Enforced Disappearance (the Declaration) and the International Convention on the
Protection of All Persons from Enforced Disappearance (the Convention). These standards
have been developed over the course of many years, following relevant jurisprudence
articulated by international, regional and national courts, as well as the practices established
by different States as exemplified in this annex.
2.
The conditions for an adequate investigation in enforced disappearance cases under
the European Convention of Human Rights (ECHR) have mostly been elaborated referring
to Article 2 (the right to life). The obligation to protect life under Article 2, read in
conjunction with the general duty under Article 1 of the ECHR, “requires by implication
that there should be some form of an effective official investigation when individuals have
been killed as a result of the use of force.” 104 The European Court of Human Rights
(European Court) has focused on the concept of primary protection, which ensures the
victim’s substantive right ex post facto through investigation. The European Court also
analyses cases of enforced disappearance referring to Article 3 (prohibition of torture),
Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the
ECHR. In some cases, the European Court declared a violation of Article 8 (right to respect
for private and family life).
3.
The jurisprudence of the European Court establishes a procedural obligation that
obliges States to undertake an effective investigation into alleged breaches of the ECHR.
The procedural obligation to investigate enforced disappearances continues as long as the
circumstances of the violation have not been clarified and until the establishment of
responsibility can be reasonably expected.105 The European Court referred to Article 13
ECHR concluding that an effective remedy in cases of enforced disappearances includes “a
thorough and effective investigation capable of leading to the identification and punishment
of those responsible and including effective access for the relatives to the investigatory
procedure.”106
4.
The European Court stated in Ergi v. Turkey (paragraph 79): “[P]rocedural
obligations have been implied in varying contexts under the Convention, where this has
been perceived as necessary to ensure that the rights guaranteed under the Convention are
not theoretical or illusory but practical and effective.”107
5.
With respect to the State’s obligation to investigate complaints of enforced
disappearance of persons, the Inter-American Court of Human Rights (Inter-American
Court) identified an effective investigation to be diligent, not a mere formality, initiated ex
104
105
106
107
European Court of Human Rights, Timurtaş v. Turkey, Application No. 23531/94, 13 June 2000, para.
87.
European Court of Human Rights, Šilih v. Slovenia, Application No. 71463/01, 9 April 2009, paras.
157–160.
European Court of Human Rights, Kurt v. Turkey, Application No. 15/1997/799/1002, 25 May 1998,
para. 140. See also Timurtaş v. Turkey (see footnote 117), para. 111.
European Court of Human Rights, Ergi v. Turkey, Application No. 23818/94, 28 July 1998, para. 79;
European Court of Human Rights, İlhan v. Turkey, Application No. 22277/93, 27 June 2000 para. 91.
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