A/HRC/45/13/Add.3
conduct thorough investigations into alleged violations of human rights, particularly
enforced disappearances […], and to prosecute, try and punish those responsible for such
violations.” 205 The duties of a proper effective investigation prevail any domestic legal
impediments as to evade the persistence of impunity.206
82.
Furthermore, the Human Rights Committee, in relation to the inadmissibility of
death certificates, underscored that by issuing these the State cannot bypass its duty to
investigate the facts, which derives from the continuous nature of this obligation.207
83.
The Human Rights Committee stated in Bashasha v. Libyan Arab Jamahiriya
(paragraph 7.3): “[T]he Committee observes that on 20 June 2009, the family was provided
with Milhoud Ahmed Hussein Bashasha’s death certificate, without any explanation as to
the cause or the exact place of his death or any information on any investigations
undertaken by the State party. In the circumstances, the Committee finds that the right to
life enshrined in article 6 has been violated by the State party.”208
84.
The Inter-American Court in Barrios Altos v. Peru found that the self-amnesty in
relation to Amnesty Act Nos. 26479 and 26492 was incompatible with the duty to
investigate and prosecute leading to the persistence of impunity. In the Castillo-Páez v.
Peru case, the Inter-American Court held that an amnesty law, which impedes the
identification of a perpetrator, did not evade the State’s responsibility from complying with
the victim’s right to know.209
85.
The Inter-American Court stated in Castillo-Páez v. Peru (paragraph 90): “In
connection with the above-mentioned violations of the American Convention, the Court
considers that the Peruvian State is obliged to investigate the events that produced them.
Moreover, on the assumption that internal difficulties might prevent the identification of the
individuals responsible for crimes of this kind, the victim’s family still have the right to
know what happened to him and, if appropriate, where his remains are located. It is
therefore incumbent on the State to use all the means at its disposal to satisfy these
reasonable expectations.”
86.
The Inter-American Court stated in Barrios Altos v. Peru (paragraph 41:) “[A]ll
amnesty provisions, provisions on prescription and the establishment of measures designed
to eliminate responsibility are inadmissible, because they are intended to prevent the
investigation and punishment of those responsible for serious human rights violations such
as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of
them prohibited because they violate non-derogable rights recognized by international
human rights law.”
87.
Furthermore the Inter-American Court held that State authorities must not suppress
information obtained through administrative procedures or from judicial authorities
investigating an alleged enforced disappearance justifying these acts under the cover of
national security.210
88. The Inter-American Court stated in Gomes-Lund et al. (“Guerrilha do Araguaia”) v.
Brazil (paragraph 202): “[T|he Court has also established that in cases of violations of
human rights, the State authorities cannot resort to mechanisms such as official secret or
confidentiality of the information, or reasons of public interest or national security, to
refuse to supply the information required by the judicial or administrative authorities in
charge of the ongoing investigation or pending procedures.”
205
206
207
208
209
210
36
Human Rights Committee, El Abani v. Algeria, communication No. 1640/2007 (2010), 26 July 2010,
para. 9; Human Rights Committee, General Comment No. 31 (2004), para. 18.
Human Rights Committee, Laureano v. Peru, communication No. 540/1993, 16 April 1996, para. 10;
Human Rights Committee, Benaziza v. Algeria (see footnote 205) para. 9.2.
Human Rights Committee, Bashasha v. Libyan Arab Jamahiriya (see footnote 174) para.7.3; see
Human Rights Committee, S.E. v. Argentina, communication No. 275/1988, 26 March 1990.
Ibid.
IACHR, Castillo-Páez v. Peru (see footnote 198) para. 90.
IACHR, Gomes-Lund et al. (“Guerrilha do Araguaia”) v. Brazil (see footnote 152) para. 202.
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