A/HRC/45/13/Add.3
victims and their families in the investigation is also the best means to guarantee
transparency and accountability of the investigative process.
61.
Victims, civil society and other non-governmental organizations have often played a
key role in obtaining evidence and achieving significant progress through litigation in
criminal proceedings related to allegations of enforced disappearances, especially in
contexts where governmental action is limited and widespread impunity exists.
Consequently, the Working Group considers as a good practice the recognition of the
procedural status of victims’ groups and other specialized organizations. This can enable
these actors to more effectively participate in the investigative process, including through
demanding access to relevant information, offering experts to monitor and review said
information and making appeals against decisions. Furthermore, the collective
representation of victims through family or civil society organizations has in many
instances served as a means of protecting victims, by reducing their exposure to risks, both
physical and psychological.67
62.
The effective participation of relatives in the investigative process should be
facilitated by States through the provision of adequate financial support to aid such
involvement, as well as through the adoption of measures requiring that informationsharing meetings be held regularly with the teams carrying out the investigation.
63.
However, in many contexts, relatives are threatened, intimidated and subjected to
reprisals, rather than invited to participate in investigations. In many such cases, acts of
reprisals are not duly investigated as required by the Declaration, and consequently go
unpunished. This promotes an unsafe environment for the conduct of effective
investigations. Similarly, relevant authorities sometimes exercise pressure over civil society
organizations and relatives of disappeared persons by restraining their legal capacity or
ability to seek financial support for their advocacy. In some cases, these activities have
even been criminalized with ambiguous and unfounded allegations of subversion and
terrorism.68
64.
In situations where relatives are afraid to file complaints, or individuals with
important information refuse to testify, which can contribute to impunity, it is essential to
provide adequate protection programmes and incentives for witness testimony, 69 in
compliance with article 13 (3) of the Declaration.70
65.
It is of paramount importance to establish adequately funded institutions to protect
and assist the victims, their families, witnesses and other stakeholders taking part in the
investigation, including defendants that could present evidence. Furthermore, protection
programmes should be established within functional independent institutions.71 It should be
stressed that in many instances those who perpetrated enforced disappearances continue to
operate underground, even when transitional justice processes are taking place, and often
retain the ability to cause damage to anyone who attempts to hold them to account.72
66.
Comprehensive witness protection measures should also be guaranteed. Witnesses
should be clearly informed that they have the opportunity to benefit from identity protection,
and they should also be informed if and when their testimony is to be disclosed to the
defence or made public. Witness relocation schemes should also be considered in situations
where serious danger exists.73
67
68
69
70
71
72
73
Ibid., art. 24 (7); E/CN.4/2005/102/Add.1, principle 19. See, for example, Argentina, Code of
Criminal Procedure of 10 December 2014, article 82 bis; and communication OL MEX 16/2018, 12
November 2018 (in Spanish).
A/HRC/30/38/Add.5, para. 34.
A/HRC/39/46/Add.1, para. 60; and A/HRC/30/38/Add.1, paras. 10 and 75.
International Convention, arts. 12 (1) and (4); CED/C/7, annex, principle 14; E/CN.4/2005/102/Add.1,
principle 10.
A/HRC/16/48, para. 39 (general comment on the right to the truth in relation to enforced
disappearance, para. 10); and A/HRC/10/9/Add.1, paras. 80 and 94 (in Spanish).
Inter-American Court of Human Rights, Rochela Massacre v. Colombia, Judgment, 11 May 2007,
para. 165; regarding the enforced disappearance of the witness and victim Julio López in Argentina,
see A/HRC/10/9/Add.1, para. 69 (in Spanish).
A/HRC/10/9/Add.1, para. 78 (in Spanish).
13
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