A/HRC/45/13/Add.3 Annex Annex on jurisprudence and related policies of the thematic Report of the Working Group on Enforced or Involuntary Disappearances: Standards and Public Policies for an Effective Investigation of Enforced Disappearance I. The elements of the obligation to investigate enforced disappearances and obstacles thereto 1. The obligation for States to investigate enforced disappearances is well codified in international law namely in the 1992 Declaration on the Protection of All Persons from Enforced Disappearance (the Declaration) and the International Convention on the Protection of All Persons from Enforced Disappearance (the Convention). These standards have been developed over the course of many years, following relevant jurisprudence articulated by international, regional and national courts, as well as the practices established by different States as exemplified in this annex. 2. The conditions for an adequate investigation in enforced disappearance cases under the European Convention of Human Rights (ECHR) have mostly been elaborated referring to Article 2 (the right to life). The obligation to protect life under Article 2, read in conjunction with the general duty under Article 1 of the ECHR, “requires by implication that there should be some form of an effective official investigation when individuals have been killed as a result of the use of force.” 104 The European Court of Human Rights (European Court) has focused on the concept of primary protection, which ensures the victim’s substantive right ex post facto through investigation. The European Court also analyses cases of enforced disappearance referring to Article 3 (prohibition of torture), Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the ECHR. In some cases, the European Court declared a violation of Article 8 (right to respect for private and family life). 3. The jurisprudence of the European Court establishes a procedural obligation that obliges States to undertake an effective investigation into alleged breaches of the ECHR. The procedural obligation to investigate enforced disappearances continues as long as the circumstances of the violation have not been clarified and until the establishment of responsibility can be reasonably expected.105 The European Court referred to Article 13 ECHR concluding that an effective remedy in cases of enforced disappearances includes “a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure.”106 4. The European Court stated in Ergi v. Turkey (paragraph 79): “[P]rocedural obligations have been implied in varying contexts under the Convention, where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory but practical and effective.”107 5. With respect to the State’s obligation to investigate complaints of enforced disappearance of persons, the Inter-American Court of Human Rights (Inter-American Court) identified an effective investigation to be diligent, not a mere formality, initiated ex 104 105 106 107 European Court of Human Rights, Timurtaş v. Turkey, Application No. 23531/94, 13 June 2000, para. 87. European Court of Human Rights, Šilih v. Slovenia, Application No. 71463/01, 9 April 2009, paras. 157–160. European Court of Human Rights, Kurt v. Turkey, Application No. 15/1997/799/1002, 25 May 1998, para. 140. See also Timurtaş v. Turkey (see footnote 117), para. 111. European Court of Human Rights, Ergi v. Turkey, Application No. 23818/94, 28 July 1998, para. 79; European Court of Human Rights, İlhan v. Turkey, Application No. 22277/93, 27 June 2000 para. 91. 21