A/HRC/45/13/Add.3 evidence in order to clarify facts with the aim to establish the truth. 239 The Court also indicated that victims of human rights violations or their next of kin should dispose of a range of mechanisms for being heard and acting in proceedings in order to contribute to the clarification of facts. 240 Indeed, the participation of family members and the affected community in investigative steps plays a crucial role in the identification of evidence in disappearance cases. 241 In investigative processes, the respective cultural and ethnic background of affected communities should be taken in consideration and any operations that may lead to re-victimization or secondary victimization should be strictly avoided.242 112. The Inter-American Court stated in Gomes-Lund et al. (“Guerrilha do Araguaia”) v. Brazil, (paragraph 139): “The Court has also noted that from Article 8 of the Convention, what can be gathered is that victims of human rights violations, or their next of kin, should have ample possibilities to be heard and act in the respective procedures, in the search to ascertain the facts and in the punishment of those responsible, as well as the search for due reparation. Moreover, the Court has noted that the obligation to investigate and the corresponding right of the alleged victim or their next of kin cannot be gathered merely from the conventional norms of international law which are imperative for the States Parties, but also from the right to investigate ex oficio certain illicit conduct and the norms that permit the victims or their next of kin to file a complaint or present a lawsuit, evidence, or applications, or any other matter, in order to participate procedurally in the criminal investigation with the hope of establishing the truth of the facts.” 113. The European Court considered that the obligation to investigate, construed as an obligation of means, entailed that the authorities must have taken all steps which remain available to them in order to safeguard the evidence concerning cases of disappearances and to undertake any investigative steps with the requisite due diligence.243 114. In cases of interim measures relating to applicants before the Court or witnesses being subjected to reprisals, the European Court in Shabazova v. Russia requested the government to provide without delay information on the fate and whereabouts of the applicant’s husband.244 It is important to note that the European Court leaves State parties a considerable margin of appreciation in the choice of protective measures. In the Mahmut Kaya Case, the European Court stated, “positive obligations must (…) not impose an impossible or disproportionate burden on the authorities.”245 115. In Cyprus, the Committee of Missing Persons (CMP) was unable to exhume even a single grave for over 20 years mainly due to the lack of bi-communal cooperation and trust.246 An obstacle was the persistent refusal of the Turkish military stationed in the north of the island to allow the search for and opening of possible burial sites located in military zones. Moreover, Turkey’s refusal to allow the search for missing persons from 1974 in the territory under its control or allow access to relevant military archives delayed and rendered investigations ineffective.247 116. In Greece, incorporating the crime of enforced disappearance of a person into article 187 paragraph 1 of the Criminal Procedure Code (CPC) also means that the regulations on protection of witnesses and their families apply in relation to cases of enforced disappearances subsequent to an order from the competent prosecutor. Particularly, it means that witnesses should be systematically guarded by the police, separately detained if 239 240 241 242 243 244 245 246 247 IACHR, Gomes-Lund et al. (“Guerrilha do Araguaia”) v. Brazil (see footnote 152) para. 139. IACHR, Villagrán Morales et al. v. Guatemala, Judgment of November 19, 1999, Series C No. 63 para. 227. See IACHR, The Pueblo Bello Massacre v. Colombia (see footnote 127) para. 144; IACHR, Serrano-Cruz Sisters v. El Salvador (see footnote 128) para. 63. This obligation is derived from Article 8 ACHR. See the written contribution of Carlos Beristain to the expert consultation of the Working Group on Enforced or Involuntary Disappearance Expert Consultation at its 116th session, para. 5 (in Spanish). Available at www.ohchr.org. Ibid, paras. 9 and 12. European Court of Human Rights, Timurtaş v. Turkey (see footnote 117) para. 88. See European Court of Human Rights, Shabazova v. Russia, application No. 38450/05, 2 April 2009. European Court of Human Rights, Mahmut Kaya Case (see footnote 181) para. 86. Council of Europe, (see footnote 232) p. 44. Ibid. 41