A/HRC/45/13/Add.3
they are prisoners, change their identities, transfer them (if they are public servants), nondisclose their identity during criminal proceedings, as well as protect the trial officers
accordingly, such as the prosecutor, the investigating magistrate, and judges of the case.248
117. In Mexico, the 2015 Protocol for the Search of Disappeared and Investigation of the
Crime of Enforced Disappearances recommended the use of geographical data and the
establishment of maps in order to undertake an effective investigation into disappearances
cases.249
118. In Tajikistan, the Working Group recommended that the Government should
guarantee that there will be no reprisals against or harassment of families that come forward
with information about the disappeared. This process should include collaboration with
independent partners who could assist with the relevant and specialized expertise required
to build trust and help prevent and monitor reprisals.250
119. In the Gambia, relatives of forcibly disappeared persons were afraid to file
complaints and people with crucial information refused to testify, contributing to a situation
of impunity. To remedy this situation, the Working Group recommended that incentives be
provided to witnesses so they are willing to testify. Moreover the Working Group suggested
that an adequate witness protection program should be created.251
D.
Forensic investigations and conversation and disclosure of archives
120. The access to archives is crucial in order to obtain information relevant for clarifying
cases of enforced disappearance and for ensuring that State authorities cannot restrict such
access. 252 In various country-specific contexts the access to archives, including military
archives that may contain information on the fate and whereabouts of disappeared persons
has been reiterated as part of the State’s obligation to effectively investigate enforced
disappearances.
121. In its report after the visit to Turkey, for instance, the Working Group recommended
that access to archives, including the military, the gendarmerie and the security and
intelligence services should be guaranteed both to families and to judicial authorities, to
allow them to fully investigate and prosecute those responsible (A/HRC/33/51/Add.1,
para.26). In the report on Sri Lanka, the Working Group underlined that States’ obligation
to investigate the allegations and prosecute and punish the perpetrators requires ensuring
access to all archives, including military archives, that may contain information on the fate
and whereabouts of disappeared persons (persons (A/HRC/33/51/Add.2, para. 44). After
the visit to Serbia, the Working Group welcomed the decision to open the archives of the
Ministry of the Interior, but recommended that the archives of the Ministry of Defense be
opened too for almost 300 lawsuits (A/HRC/30/38/Add.1, para. 37).
122. The Inter-American Court linked an effective investigation as a means to obtain the
truth about circumstances of the disappearances and perpetrators involved to the possibility
to access archives. In the case Gomes-Lund et al. v. Brazil the Court considered the failure
by the State to comply with the obligation of granting access to crucial information
contained in archives to victims in order to seek relevant facts of the disappearance. The
Inter-American Court concluded that although information may be restricted, when this
classification as secret is proved to be unlawful, the State has to make the information
accessible within an adequate period of time in light of ongoing investigations. 253 The
248
249
250
251
252
253
42
Greece, Criminal Procedure Code (CPC) of 1 January 1950, Article 187 and Articles 9 and 10 of Law
2927/2001.
See Office of the Prosecutor, Protocolo Homologado para la Búsqueda de Personas Desaparecidas y
la Investigación del Delito de Desaparición Forzada, June 2015, p.45 in Verónica Hinestroza,
Human Rights Institute of the International Bar Association, contribution to the expert consultation of
the Working Group on Enforced or Involuntary Disappearance at its 116th session, p. 3. Available at
www.ohchr.org.
A/HRC/45/13/Add.1, para. 37.
A/HRC/39/46/Add.1 para. 60.
A/HRC/7/2/Add.2 paras. 61 and 94; UN Updated Set of Principles to Combat Impunity, (see footnote
72) Principles 3, 4 and 14–18; See Section III, G and H of the Thematic Report.
IACHR, Gomes-Lund et al. (“Guerrilha do Araguaia”) v. Brazil (footnote 152) paras. 211 and 212.
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