A/HRC/45/13/Add.3
76.
In the case Grioua v. Algeria, the Human Rights Committee applied the concept of a
shared burden of proof allowing for rendering a default decision. As such both the
respondent State and the complainant hold the duty, respectively, to investigate the
complaint and present supporting evidence. 198 The Human Rights Committee took this
approach in subsequent cases in contexts of Algeria, Libya and Nepal.199
77.
The Human Rights Committee stated in Grioua v. Algeria (paragraph 7.4): “The
Committee reaffirms that the burden of proof cannot rest on the author of the
communication alone, especially considering that the author and the State party do not
always have equal access to the evidence and frequently the State party alone has the
relevant information. It is implicit in article 4, paragraph 2, of the Optional Protocol that the
State party has the duty to investigate in good faith all allegations of violations of the
Covenant made against it and its representatives and to furnish to the Committee the
information available to it.”
78.
The Human Rights Committee stated in Chhedulal Tharu and others v. Nepal
(paragraph 10.2): “In cases in which the author has submitted allegations that are
corroborated by credible evidence and in which further clarification depends on information
that is solely in the hands of the State party, the Committee may consider the author’s
allegations substantiated in the absence of satisfactory evidence or explanations to the
contrary presented by the State party.”
H.
Obstacles to effective investigation: Statute of limitations, principle of
ne bis in idem and prohibition of amnesties, pardons and other similar
measures
79.
Indicators of ineffective investigation recorded by the European Court included the
length of time before an actual investigation was initiated and witness statements were
taken, the length of time before statements were taken from the alleged perpetrators or
inquiries by police officers on duty at the time, inadequate questions put to the witnesses, a
failure by the authorities to consider all relevant information, the failure of the public
prosecutor to make any serious attempts to inspect the custody records and to visit the
detention places himself,200 sole reliance on the statements of police officers,201 decisions of
non-jurisdiction and the lack of securing evidence,202 the lack of cooperation between State
agencies and as a result the lack of access to requisite information203 and delays through
repeatedly adjourning and reopening investigations.204
80.
Further obstacles to effective investigations include limited national capacity and a
lack of qualified forensic experts, compounded by economic constraints due to the costly
process of DNA identification, the lack of relevant information about gravesites due to
witnesses’ fear of testifying or lack of exhumations of known sites, the lack of cooperation
between former rival parties, difficulties for investigative bodies to visit places of detention
or to obtain essential information from relevant authorities. Obstacles to conducting
effective investigations also stem from difficulties in securing access to archives that may
contain vital information on the fate of disappeared persons.
81.
The Human Rights Committee stated that amnesties are incompatible with the
obligation of States to investigate and reiterated that States are to be “duty-bound to
198
199
200
201
202
203
204
Human Rights Committee, Grioua v. Algeria, Communication No. 1327/2004, 10 July 2010, para. 7.4.
Human Rights Committee, Sharma v. Nepal, Communication No. 1469/2006, 28 October 2008, para.
7.5 ; Human Rights Committee, Madoui v. Algeria, Communication No. 1495/2006, 28 October 2008
para. 7.3; Human Rights Committee, Benaziza v. Algeria (see footnote 205) para. 9.4; Human Rights
Committee, El Alwani v. the Lybian Arab Jamahiriya, Communication No 1295/2004, 11 July 2007
para. 6.3.
European Court of Human Rights, Timurtaş v. Turkey (see footnote 119) para. 89; European Court of
Human Rights, Mahmut Kaya v. Turkey (see footnote 187) para. 104.
European Court of Human Rights, Ergi v. Turkey (see footnote 122) para. 83.
European Court of Human Rights, Mahmut Kaya v. Turkey (see footnote 187) paras. 24–52 and 104.
European Court of Human Rights, Aslakhanova and others v. Russia (see footnote 147) para. 125.
European Court of Human Rights, Baysayeva v. Russia, application No. 47354/07, European Court of
Human Rights, 12 June 2012, para. 129; See Section II, D, G, and H of the Thematic Report.
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