A/HRC/45/13/Add.3
and punishment remain legally or factually impossible, State must continue to undertake an
effective investigation in order to disclose the factual circumstances of the disappearance.
8.
The Inter-American Court stated in the Godínez Cruz Case (paragraph 188): “The
duty to investigate, like the duty to prevent, is not breached merely because the
investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a
serious manner and not as a mere formality preordained to be ineffective. An investigation
must have an objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the truth by the government.”120
9.
The Inter-American Court stated in Serrano-Cruz Sisters v. El Salvador (paragraph
65): “The obligatory investigation by the State must be carried out with due diligence,
because it must be effective. This implies that the investigating body must, within a
reasonable time, take all necessary measures to try and obtain results.”
10.
The Inter-American Court stated in González et al. (‘Cotton Field’) v. Mexico
(paragraph 258): “The foregoing reveals that States should adopt comprehensive measures
to comply with due diligence in cases of violence against women. In particular, they should
have an appropriate legal framework for protection that is enforced effectively, and
prevention policies and practices that allow effective measures to be taken in response to
the respective complaints. (…) This should take into account that, in cases of violence
against women, the States also have the general obligation established in the American
Convention, an obligation reinforced since the Convention of Belém do Pará came into
force.”
11.
The Inter-American Court stated in Rochela Massacre v. Colombia (paragraph 76):
“The Court deems it relevant to point out that in all cases submitted to this body, it has
required that the context be taken into consideration because the political and historical
context is a determinant element in the establishment of the legal consequences in a case.
(…) For this reason, the analysis of the events that occurred on January 18, 1989, which the
State recognized, cannot be considered separately from the context in which they took place.
Likewise, their legal consequences cannot be established in a vacuum, which is what would
result from their decontextualization. (Paragraph 158): In context of the facts of the present
case, the principles of due diligence required that the proceedings be carried out taking into
account the complexity of the facts, the context in which they occurred and the systematic
patterns that explain why the events occurred. In addition, the proceedings should have
ensured that there were no omissions in gathering evidence or in the development of logical
lines of investigation.”
12.
In the event that the body of the disappeared person was eventually found, the InterAmerican Court referred to the United Nations Manual on the Effective Prevention and
Investigation of Extralegal, Arbitrary and Summary Executions for conducting an
investigation.121
13.
The Human Rights Committee understands the duty to investigate in relation to
Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) (the right
to an effective remedy), identifying the “general obligation to investigate allegations of
violations promptly, thoroughly and effectively through independent and impartial
bodies.”122 The Human Rights Committee also derived the duty to investigate from Articles
4(2) Optional Protocol 1 and 14(3) ICCPR.123 In relation to the case Kimouche v. Algeria,
120
121
122
123
session. Available at www.ohchr.org, p. 3; CED/C/COL/CO/1; para. 20.e); A/HRC/19/58/Add.2, para.
97.
IACHR, Godínez Cruz v. Honduras, Judgment of January 20, 1989, Series C No. 5, para. 144; See
IACHR, Velásquez Rodríguez v. Honduras (see footnote 123) para. 188.
IACHR, Pueblo Bello Massacre v. Colombia, (see footnote 127) paragraph 177, referring to the
United Nations Manual on the Effective Prevention and Investigation of Extralegal, Arbitrary and
Summary Executions, see E/ST/CSDHA/12 (1991); the IACHR concluded in relation to the Juan
Humberto-Sánchez Case, that the investigation did not satisfy all the measures by The UN Manual;
see IACHR, Juan Humberto Sánchez v. Honduras. Preliminary Objections, Merits, Reparations and
Costs, Judgment of June 7, 2003, Series C No. 99, para. 127.
Human Rights Committee, general comment No. 31 (2004), para. 15.
Human Rights Committee, Bleier v. Uruguay, communication No. R.7/30, 29 March 1982, para. 13.3.
23
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