A/HRC/45/13/Add.3
C.
Access to relevant information
24.
Authorities in charge of the investigation must have access to all relevant
information, including military, police and intelligence information. 14 To this end, the
authorities must be able to order the declassification of such files. The denial of access to
information on the grounds that it may pose a risk to national security, international
relations or the privacy of the persons should be strictly analysed by judges and be the
object of a judicial decision.
25.
Although the public disclosure of classified information may be limited in
exceptional circumstances, legal means should be adopted to allow the authorities in charge
of investigations, as well as those persons entitled to the information in the context of
judicial procedures, to have full access to it, on the basis of confidentiality. Whenever a
limitation is imposed, a judicial revision must be ensured. The Working Group has asserted
that once the investigation is concluded, archives must be preserved and made available to
the public.15
26.
The institutional and legal framework must also provide the necessary powers and
resources to relevant institutions to be able to compel attendance of witnesses and
production of relevant evidence.16
D.
Prohibition of amnesties, pardons and other similar measures
27.
Article 18 of the Declaration prohibits amnesties and other similar measures that
could benefit the perpetrators or alleged perpetrators of acts of enforced disappearance.17
The same article limits the right to pardons, considering the extreme seriousness of acts of
enforced disappearance.
28.
In its general comment on article 18 of the Declaration, the Working Group urged
States to refrain from making or enacting amnesty laws that would exempt the perpetrators
of enforced disappearance from criminal proceedings and sanctions, and other similar
measures that would prevent the proper implementation of other provisions of the
Declaration.18
29.
In the same general comment, the Working Group found that other similar measures
would be contrary to the Declaration, such as:
(a)
Ceasing an investigation owing to the impossibility of identifying the
perpetrators, in contravention of article 13 (6) of the Declaration;
(b)
Imposing conditions to the right to the truth and reparations;
(c)
Withdrawing charges or granting pardons to the alleged perpetrators;
(d)
Imposing statutes of limitations that are meagre or applicable while the
disappearance is still ongoing and prosecuting the perpetrators with the intent of absolving
them or punishing them with insignificant sanctions.19
30.
Amnesties and similar measures that may contribute to impunity are in direct
violation of the rights of the families to an effective remedy and to be heard before a
competent, impartial and independent court in order to determine and learn the truth.20
14
15
16
17
18
19
20
6
A/HRC/16/48, para. 39 (general comment on the right to the truth in relation to enforced
disappearance, para. 9).
Ibid.
Declaration, art. 13 (2); E/CN.4/2005/102/Add.1, principle 16; and Minnesota Protocol on the
Investigation of Potentially Unlawful Death (2016), para. 27.
E/CN.4/1984/21, para. 35.
E/CN.4/2006/56, para. 49.
Ibid.
International Commission of Jurists, Enforced Disappearance and Extrajudicial Execution:
Investigation and Sanction (Geneva, 2015), p. 208.
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