A/HRC/45/13/Add.3
only required by the State’s international obligations, but it is also the best way to
effectively combat impunity and to realize the right to the truth for the victims and
society as a whole.
98.
The Working Group recommends that States:
(a)
Define enforced disappearance as an autonomous crime in national
legislation and establish different modes of criminal liability, including abetting,
instigating, acquiescing and actively covering up an enforced disappearance, as well as
criminal liability for command or superior responsibility;
(b)
Create mechanisms that can promptly receive and process complaints of
enforced disappearances, under the responsibility of authorities who are independent
of the institutions to which the alleged perpetrators belong or may be linked. These
mechanisms should be empowered to trigger prompt investigations of the complaints
received. It is imperative that complaints of disappearances that involve the alleged
participation of State officials, or of non-State actors with the support or acquiescence
of State officials, are recognized as cases of enforced disappearance and immediately
trigger the application of the principles that guide the investigation of such crimes.
States cannot invoke the lack of a formal complaint to refuse to initiate investigations;
(c)
Guarantee unrestricted access to all the competent judicial authorities
and investigators that work with them to any place where people deprived of their
liberty are kept or to any place, official or unofficial, where there is reason to believe
disappeared persons could be found;
(d)
Ensure that the authorities in charge of investigations have access to all
the relevant information, including any contained in records and archives pertaining
to military, police, intelligence and other national security bodies;
(e)
Remove obstacles in national law that may lead to impunity in cases of
enforced disappearances, including by:
(i)
When applicable, only initiating statutes of limitations from the date of
the clarification of the fate and whereabouts of the person;
(ii)
Prohibiting amnesties, pardons and other measures that may be aimed
at avoiding or indirectly hindering the obligation to investigate, prosecute and
punish the perpetrators of said crimes;
(iii)
Prohibiting the defence of superior orders;
(iv) Limiting the application of the principles of res judicata and ne bis in
idem in cases of fraudulent investigations;
(f)
Establish a swift and effective judicial recourse system in order to
ascertain the whereabouts of disappeared persons and to ensure their mental and
physical well-being and identify the authorities, including the specific individuals or
bodies, who ordered or carried out the deprivation of liberty. This remedy should be
applicable in all circumstances and with no exceptions;
(g)
Ensure the independence, autonomy and integrity of investigations. To
this end, States should:
(i)
Suspend any alleged perpetrator from official duties, in order to help
prevent them from influencing the investigation, or from putting pressure on,
intimidating or carrying out reprisals against those directing or participating in
the investigation;
(ii)
Take steps to limit the participation in the investigations of the
institution to which the alleged perpetrators belong;
(h)
Establish mechanisms for the protection of victims, their family
members, witnesses and other persons involved in the investigation, including
defendants who may provide relevant information on cases, which should operate
under the auspices of an independent institution with sufficient resources to meet their
objectives;
19
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