A/HRC/45/13/Add.3
9.
In its 2006 ruling on the Goiburú et al. case, the Inter-American Court of Human
Rights stated that prohibiting acts of enforced disappearance, and the related duty to
investigate them and punish perpetrators, should be considered a jus cogens norm.6
10.
In its article 13, the Declaration describes in detail the obligations arising from the
duty to investigate enforced disappearance thoroughly and impartially, making clear that
such investigations should not be curtailed or impeded in any way. The present report is
informed by the recommendations developed by the Working Group over the years and the
practices of States and other entities.
A.
Prompt and ex officio nature of the investigation
11.
Article 13 of the Declaration on the Protection of All Persons from Enforced
Disappearance and article 12 of the International Convention on the Protection of All
Persons from Enforced Disappearance set out the obligation for States to ensure the
effective enjoyment of the right to issue a complaint to a competent and independent State
authority, and to have such complaint promptly, thoroughly, effectively and impartially
investigated.
12.
The requirement to conduct prompt investigations is connected to the main
objectives of finding the disappeared person alive and ensuring that sufficient evidence is
obtained in order to establish the truth and identify the perpetrators. However, in many
countries, law enforcement agencies implement a waiting period of up to 72 hours before
initiating investigations on disappearances, which is problematic given that the first hours
after the deprivation of liberty are key for the investigation of an enforced disappearance.
This period can potentially provide perpetrators with an opportunity to circumvent the
protections established by law, and to subject victims to unlawful interrogations, torture and,
in some instances, extrajudicial executions.
13.
In this regard, States must establish specific early complaint mechanisms for the
reception and investigation of allegations of enforced disappearance that are easily
available within the initial period of disappearance. In line with the Declaration (art. 13 (1)),
these mechanisms should be independent and committed to carrying out impartial and
prompt investigations into all allegations of enforced disappearances.
14.
The Declaration and the International Convention stipulate that States cannot invoke
the lack of a formal complaint as a valid reason to not initiate investigations. This clause is
designed as a safeguard to help ensure that investigations take place, including in contexts
where relatives are at high risk of facing reprisals or other situations where the complainant
is unaware of existing mechanisms, and/or unable or unwilling to communicate with them
for whatever reason.7
15.
Practices in many countries demonstrate that the lack of willingness to investigate,
on the part of State authorities, puts the burden on the relatives to collect evidence and find
witnesses and, in some instances, even search grave sites to look for their loved ones.
However, although States should assume the duty to investigate, relatives and civil society
organizations supporting them should be allowed to actively participate in this process.
16.
With regard to the question of “promptness” or investigations carried out “without
delay”, it is well established that the delaying of investigations has often resulted in de facto
impunity.8 These delays can also increase the anguish of the relatives of the disappeared,
6
7
8
4
Inter-American Court of Human Rights, Goiburú et al. v. Paraguay, ruling of 22 September 2006,
Series C. No. 153, para. 84. See para. 7 of the annex to the present document for other precedents, and
see also the contribution for this report of Fundación para la Justicia y el Estado de Democrático de
Derecho and TRIAL International, “Mexico: aportación dirigida al Grupo de Trabajo sobre las
desapariciones forzadas o involuntarias en vista del estudio temático sobre normas y políticas
públicas para la investigación eficaz de las desapariciones forzadas” (February 2019), para. 6.
Available at www.ohchr.org/EN/Issues/Disappearances/Pages/effective-investigation.aspx.
See, for instance, references to France and Portugal in para. 23 of the annex.
See the contribution for the report by the Human Rights Law Clinic, University of Texas School of
Law, p. 48. Available at www.ohchr.org/Documents/Issues/Disappearances/effective-
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