A/HRC/16/48
also underlined that reconciliation between the State and the victims of enforced
disappearance cannot happen without the clarification of each individual case.
The 1992 Declaration on the Protection of All Persons from Enforced
Disappearance enumerates a number of obligations that flow from the right to the
truth.
Based on the foregoing, the Working Group has decided to adopt this general
comment in the following terms:
General comment
1.
The right to the truth in relation to enforced disappearances means the right to
know about the progress and results of an investigation, the fate or the whereabouts
of the disappeared persons, and the circumstances of the disappearances, and the
identity of the perpetrator(s).
2.
The right to the truth in relation to enforced disappearances should be clearly
distinguished from the right to information, and in particular the right of the relatives
or other persons with a legitimate interest, their representatives or their legal
counsel, to obtain information on a person who is deprived of his liberty. The right
to information on the person detained, together with the non-derogable right of
habeas corpus, should be considered central tools to prevent the occurrence of
enforced disappearances.
3.
Article 13 of the Declaration recognizes the obligation of the State to
investigate cases of enforced disappearances. Paragraph 4 of Article 13 specifies that
“the findings of such an investigation shall be made available upon request to all
interested persons, unless doing so would jeopardize an ongoing criminal
investigation.” In light of the developments that happened since 1992, the Working
Group deems that the restriction in the last part of this paragraph should be
interpreted narrowly. Indeed, the relatives of the victims should be closely
associated with an investigation into a case of enforced disappearance. The refusal to
provide information is a limitation on the right to the truth. Such a limitation must be
strictly proportionate to the only legitimate aim: to avoid jeopardizing an ongoing
criminal investigation. A refusal to provide any information, or to communicate with
the relatives at all, in other words a blanket refusal, is a violation of the right to the
truth. Providing general information on procedural matters, such as the fact that the
matter has been given to a judge for examination, is insufficient and should be
considered a violation of the right to the truth. The State has the obligation to let any
interested person know the concrete steps taken to clarify the fate and the
whereabouts of the person. Such information must include the steps taken on the
basis of the evidence provided by the relatives or other witnesses. While the
necessities of a criminal investigation may justify restricting the transmission of
certain information, there must be recourse in the national legislation to review such
a refusal to provide the information to all interested persons. This review should be
available at the time of the initial refusal to provide information, and then on a
regular basis to ensure that the reason for the necessity that was invoked by the
public authority to refuse to communicate, remains present.
4.
Paragraph 6 of Article 13 provides that: “An investigation, in accordance
with the procedures described above, should be able to be conducted for as long as
the fate of the victim of enforced disappearance remains unclarified.” The obligation
to continue the investigation for as long as the fate and the whereabouts of the
disappeared remains unclarified is a consequence of the continuing nature of
enforced disappearances (see the Working Group’s general comment on article 17
14
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents