The right to life is set out in all major human rights treaties although the wording varies. The ICCPR and the ECHR use the phrase ‘the right to life’ while the ACHR refers to the right to respect for life. Nevertheless, this difference does not detract from the fact that all of these treaties provide similar protection. The right to life is a fundamental right because, without it, the enjoyment of other rights is not possible.
As a minimum, the right to life imposes upon states the duty to abstain from arbitrarily killing individuals under their jurisdiction. The paradigm violations of the right to life are the extra-judicial executions understood as killings ‘committed, condoned or acquiesced by governments’. Nevertheless, this is not an absolute prohibition of taking of life by the state because in some circumstances the deprivation of life may be justified (see, e.g.Article 2(2) ECHR). This is true, for example, in the case of self-defence by law enforcement officials or in the implementation of a death sentence ordered by a court following conviction for a crime for which that penalty is provided by law (in countries that still retain the death penalty). Nevertheless, in the latter case, the death penalty cannot be imposed except for the most serious crimes and following proceedings which strictly respect all the procedural safeguards of a fair trial.
Death penalty or capital punishment
It is worth noting that under general international law, the abolition of the death penalty is not expressly required. For example, the prohibition of the death penalty is not established in the instruments under analysis (see Article 6(2) ICCPR, Article 2(2) ECHR and Article 4(2) ACHR). Nonetheless, there are some instruments which do commit states parties to abolition. The prohibition of the death penalty is established under the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (adopted by General Assembly Res. 44/128 of 15 December 1989), Protocol No. 6 ECHR concerning the abolition of the death penalty in times of peace (adopted by the Committee of Ministers of the Council of Europe in December 1982, ETS No.114), Protocol No. 13 concerning the abolition of the death penalty in all circumstances (adopted by the Committee of Ministers of the Council of Europe in May 2002, ETS No. 187) and the Second Protocol to the American Convention on Human Rights to Abolish the Death Penalty (adopted at Asunción, Paraguay on 8 June 1990, 20th Regular Session of the General Assembly, OAS Treaty Series No. 73).
However, the death penalty can only be applied under very restricted circumstances, otherwise it would entail a violation of the rights to life. The case-law reveals that if the requirements for the application of the death penalty are not met there would be a violation of the right to life. The following cases refer to the necessary requirements to comply with in regard to the death penalty.
In Lubuto v. Zambia , the applicant was sentenced to death for aggravated robbery. The Supreme Court of Zambia dismissed his appeal. The applicant brought the case to the Human Rights Committee. He argued that the trial against him was unfair and that the death sentence subsequently imposed on him was disproportionate, since no one was killed or wounded during the robbery.
Lubuto v. Zambia
Human Rights Committee
Communication No. 390/1990
Views of 31 October 1995
Keywords: life - most serious crimes –cruel inhuman or degrading treatment or punishment – trial without undue delay / right to have his sentence and conviction reviewed by a higher tribunal – fair hearing
[?]
Issues and proceedings before the Committee:
[?]
7.2 The Committee notes that the author was convicted and sentenced to death under a law that provides for the imposition of the death penalty for aggravated robbery in which firearms are used. The issue that must accordingly be decided is whether the sentence in the instant case is compatible with Article 6, paragraph 2, of the Covenant, which allows for the imposition of the death penalty only—“for the most serious crimes”. Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates Article 6, paragraph 2, of the Covenant
7.3 The Committee has noted the State party’s explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author’s arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).
7.4 As regards the author’s claim that he was heavily beaten and tortured upon arrest, the Committee notes that this allegation was before the judge who rejected it on the basis of the evidence. The Committee considers that the information before it is not sufficient to establish a violation of article 7 in the author’s case.
[?]
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights , is of the view that the facts before it disclose a violation of articles 6, paragraph 2, and 14, paragraph 3(c), of the International Covenant on Civil and Political Rights.
9. The Committee is of the view that Mr. Lubuto is entitled, under article 2, paragraph 3(a), of the Covenant to an appropriate and effective remedy, entailing a commutation of sentence. The State party is under an obligation to take appropriate measures to ensure that similar violations do not occur in the future.’
Comment
Although the author did not invoke a violation of Article 6, the Committee considered that from his allegations and the facts, it appeared that he was a victim of a violation byZambiaof, inter alia, Article 6 ICCPR. The Committee reads together Article 6 (right to life) and Article 14 (fair trial). Therefore, states must comply with the right to a fair trail when imposing the death penalty. As the Human Rights Committee has stated in several cases, Article 14 requires that the accused have legal representation, adequate time and facilities to prepare the defence and communicate with his or her lawyer.
In the following case, Mr. McLawrence was sentenced to death by Jamaica’s courts. This case is worth mentioning because in its views the Human Rights Committee defined some of the requirements for the imposition of the death penalty.
Human Rights Committee
Communication No. 702/1996
Views of 18 July 1997
Keywords: life - death penalty death penalty, most serious crimes - interference with correspondence - cruel, inhuman treatment or punishment- degrading treatment or punishment - humane treatment - respect for dignity- right to be brought promptly before a judge - trial within a reasonable time - right to defend oneself in person or through legal assistance
[?]
Examination of the merits
[?]
5.10 The right of an accused person to have adequate time and facilities for the preparation of his defence is an important aspect of the guarantee of a fair trial and an important aspect of the principle of equality of arms. Where a capital sentence may be pronounced on the accused, sufficient time must be granted to the accused and his counsel to prepare the trial defence. The determination of what constitutes adequate time requires an assessment of the individual circumstances of each case [?].”
5.11 The author has claimed violations of article 14, paragraphs 3 (c) and 5, on account of “undue delays” of the criminal proceedings in his case. The Committee notes that the State party itself admits that a delay of 31 months between trial and dismissal of the appeal is “longer than is desirable”, but does not otherwise justify this delay. In the circumstances, the Committee concludes that a delay of 31 months between conviction and appeal constitutes a violation of the author’s right, under article 14, paragraph 3 (c), to have his proceedings conducted without undue delay. The Committee observes that in the absence of any State party justification, this finding would be made in similar circumstances in other cases.
5.12 Concerning the adequacy of the author’s legal representation, on trial and on appeal, the Committee recalls that legal representation must be made available to individuals facing a capital sentence. In the present case, it is uncontested that Mr. McLawrence was unrepresented during his initial court appearances, although the State party maintains that he was informed of his right to legal assistance on those occasions. On the other hand, he did secure legal representation thereafter, and on his own admission was represented satisfactorily during the trial. Concerning the appeal, the Committee notes that the appeal form dated 30 November 1992 indicates that the author did not wish the Court of Appeal assign him legal aid, that he had the means of securing legal representation for himself and that he gave the names of the two lawyers who had represented him on trial. The author did initially indicate the desire to be present during the hearing of the appeal. However, he was represented at the appeal hearing, and it is not clear from the material before the Committee whether the author continued to insist, in March 1995, to be present during the hearing of the appeal. In the circumstances of the case, the Committee is not in a position to make any finding on article 14, paragraph 3 (d).
5.13 The Committee considers that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 [16], the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that “the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review of conviction and sentence by a higher tribunal”. In this case, since the final sentence of death was passed without due respect for the requirements of article 14, the Committee must hold that there has also been a violation of article 6 of the Covenant.
6. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 9, paragraphs 2 and 3, and 14, paragraph 3 (c), and consequently of article 6, of the Covenant.’
Comment
By reading Article 14 together with Article 6, the deficiencies in the proceedings which led to the death sentence were considered to also violate the right to life. The Human Rights Committee has stressed in several decisions that states parties have an imperative duty to rigorously observe all the guarantees for a fair trial set out in Article 14 of the Covenant in cases where the death sentence comes into play. Therefore, individuals must have a fair hearing by an independent tribunal, the procedure must comply with the presumption of innocence and the right to review the case by a higher tribunal must be guaranteed. Furthermore, minimum guarantees for the defence, including adequate time to prepare the defence and access to legal aid, must be assured. As to the latter, it is worth noting that the Committee has stated that ‘it is axiomatic that legal assistance be available in capital cases’. According to the Committee this is so ‘even if the unavailability of private counsel is to some degree attributable to the author himself, and even if the provision of legal assistance would entail an adjournment of proceedings’ (See, for example, Robinson v. Jamaica , Communication No 223/1987, Views 30 March 1989 and Collins v. Jamaica , Communication No. 356/1989, Views of 25 March 1993).
In the case of Kennedy v. Trinidad and Tobago below, the applicant was sentenced to death as a result of a murder conviction in Trinidad and Tobago. The Human Rights Committee was called upon to review the mandatory character of the death penalty inTrinidad and Tobago.
Kennedy v. Trinidad and Tobago
Human Rights Committee
Communication No. 845/1998
Views of 26 March 2002
Keywords: life - death penalty - pardon or commutation -trial within a reasonable time - sentence and conviction reviewed by a higher tribunal – torture - cruel, inhuman treatment or punishment - degrading treatment or punishment - humane treatment - respect for dignity
[?]
Consideration of the merits
[?]
7.3 The Counsel has claimed that the mandatory character of the death sentence, and its application in Mr. Kennedy’s case, constitutes a violation of Articles 6(1), 7 and 14(1) of the Covenant. The State party has not addressed this claim. The Committee notes that the mandatory imposition of the death penalty under the laws of Trinidad and Tobago is based solely on the particular category of crime of which the accused person is found guilty. Once that category has been found to apply, no room is left to consider the personal circumstances of the accused or the particular circumstances of the offence. In the case of Trinidad and Tobago, the Committee notes that the death penalty is mandatory for murder, and that it may be and in fact must be imposed in situations where a person commits a felony involving personal violence and where this violence results even inadvertently in the death of the victim. The Committee considers that this system of mandatory capital punishment would deprive the author of his right to life, without considering whether, in the particular circumstances of the case, this exceptional form of punishment is compatible with the provisions of the Covenant. The Committee accordingly is of the opinion that there has been a violation of Article 6, paragraph 1, of the Covenant.
7.4 The Committee has noted counsel’s claim that since Mr. Kennedy was at no stage heard in relation to his request for a pardon nor informed about the status of deliberations on this request, his right under Article 6, paragraph 4, of the Covenant, was violated. In other words, counsel contends that the exercise of the right to seek pardon or commutation of sentence should be governed by the procedural guarantees of Article 14 (see paragraph 3.8 above). The Committee observes, however, that the wording of Article 6, paragraph 4, does not prescribe a particular procedure for the modalities of the exercise of the prerogative of mercy. Accordingly, States parties retain discretion for spelling out the modalities of the exercise of the rights under Article 6, paragraph 4. It is not apparent that the procedure in place in Trinidad and Tobago and the modalities spelled out in Sections 87 to 89 of the Constitution are such as to effectively negate the right enshrined in Article 6, paragraph 4. In the circumstances, the Committee finds no violation of this provision.’
Comment
The Committee found that mandatory capital punishment violated the right to life (Article 6(1) ICCPR). The Human Rights Committee had already taken the view that a mandatory death sentence for a broadly defined crime (murder) constitutes arbitrary deprivation of life in violation of Article 6(1) in Thompson (Eversley) v. St. Vincent and the Grenadines (Communication No. 806/1998, Views of 18 October 2000). Nonetheless, it is striking that in the Kennedy case, the Human Rights Committee did not agree that the guarantees of a fair trial (Article 14 ICCPR) apply in relation to the right to seek pardon or commutation in case of a death sentence Article 6(4) ICCPR.
In the following case, also against Trinidad and Tobago, the thirty-two applicants had been sentenced to death by hanging as a result of convictions for murder. Pursuant to the Offences Against the Person Act of Trinidad and Tobago enacted in 1925, ‘every person found guilty of murder shall suffer death’. As in the above mentioned case decided by the Human Rights Committee, the most important issue that the Inter-American Court needed to resolve was whether the ‘mandatory nature of the death penalty’ in Trinidad and Tobago as a result of a murder conviction violated the right to life.
Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago Inter-American Court of Human Rights
Judgement of 21 June 2002
Series C No. 94 (2002)
Judgement of 21June 2002
Keywords: Life - death penalty, mandatory - trial within a reasonable time - fair trial - judicial protection - detention conditions - amnesty, pardon or commutation of sentence - provisional measures, non-compliance with
[?] Assessment of the Court
99. In spite of the fact the Convention does not expressly prohibit the application of the death penalty, the Court has affirmed that the conventional rules concerning the death penalty should be interpreted as “imposing restrictions designed to delimit strictly its application and scope, in order to reduce the application of the death penalty to bring about its gradual disappearance.”
100. In light of the general spirit evident in Article 4 of the American Convention , considered in its entirety, the Court has found that:
[t]hree types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty. First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses. Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.
101. The Court is aware of the pain and suffering inflicted upon the direct victims and their next of kin by the perpetrators in murder cases, and is cognizant of the State’s duty to protect potential victims of this crime, punish those responsible and generally maintain public order, which may be affected by the proliferation of these types of crimes. The Court also considers that the State’s struggle against murder should be carried out with the utmost respect for the human rights of the persons under their jurisdiction and in compliance with the applicable human rights treaties.
102. The intentional and illicit deprivation of another’s life (intentional or premeditated murder, in the broad sense) can and must be recognised and addressed in criminal law under various categories (criminal classes) that correspond with the wide range of gravity of the surrounding facts, taking into account the different facets that can come into play: a special relationship between the offender and the victim, motives for the behaviour, the circumstances under which the crime is committed, the means employed by the offender, etc. This approach allows for a graduated assessment of the gravity of the offence, so that it will bear an appropriate relation to the graduated levels of gravity of the applicable punishment.
103. The Court finds that the Offences Against the Person Act of 1925 of Trinidad and Tobago automatically and generically mandates the application of the death penalty for murder and disregards the fact that murder may have varying degrees of seriousness. Consequently, this Act prevents the judge from considering the basic circumstances in establishing the degree of culpability and individualising the sentence since it compels the indiscriminate imposition of the same punishment for conduct that can be vastly different. In light of Article 4 of the American Convention, this is exceptionally grave, as it puts at risk the most cherished possession, namely, human life, and is arbitrary according to the terms of Article 4(1) of the Convention.
104. The Court finds that the Offences Against the Person Act has two principal aspects: a) in the determination of criminal responsibility, it only authorizes the competent judicial authority to find a person guilty of murder solely based on the categorization of the crime, without taking into account the personal conditions of the defendant or the individual circumstances of the crime; and b) in the determination of punishment, it mechanically and generically imposes the death penalty for all persons found guilty of murder and prevents the modification of the punishment through a process of judicial review.
105.The Court concurs with the view that to consider all persons responsible for murder as deserving of the death penalty, “treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.”
106. In countries where the death penalty still exists, one of the ways in which the deprivation of life can be arbitrary under Article 4(1) of the Convention is when it is used, as is the case in Trinidad and Tobago due to the Offences Against the Person Act, to punish crimes that do not exhibit characteristics of utmost seriousness, in other words, when the application of this punishment is contrary to the provisions of Article 4(2) of the American Convention.
[?]
108. In light of these facts, the Court concludes that because the Offences Against the Person Act submits all persons charged with murder to a judicial process in which the individual circumstances of the accused and the crime are not considered, the aforementioned Act violates the prohibition against the arbitrary deprivation of life, in contravention of Article 4(1) and 4(2) of the Convention.
Comment
The Court found that the mandatory death sentence imposed on all those convicted of murder in Trinidad and Tobagowas arbitrary and violated their right to life under the American Convention on Human Rights. As indicated by the President of the Court in his concurring opinion, ‘to consider all persons responsible for murder as deserving of the death penalty, treats all persons convicted of a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.’
The following case refers to the execution of twenty-four soldiers on 19 October 1998 inFreetown, Sierra Leone. The soldiers had been tried and sentenced to death by a court martial for their alleged roles in the coup that overthrew the elected government of President Tijan Kabah. The case was submitted by an NGO which alleged that the court martial which tried and convicted the victims did not allow for appeal of the death sentence to a higher tribunal. It was argued that the public execution of the twenty-four soldiers after they had been denied the right of appeal to a higher tribunal amountedinter alia to an arbitrary deprivation of the right to life contrary to Article 4 of the African Charter .
African Commission Forum of Conscience v. Sierra Leone
African Commission on Human and Peoples’ Rights
Communication No. 223/98
Keywords: life -death penalty - fair trial - martial court – appeal - request for information
[?]
Summary of Facts
1. The complaint is submitted by the Forum of Conscience, a Sierra Leonian Human Rights NGO on behalf of 24 soldiers who were executed on 19th October 1998 inFreetown, Sierra Leone.
2. The Complainant alleges that the 24 soldiers were tried and sentenced to death by a Court Martial for their alleged roles in the coup that overthrew the elected Government of President Tijan Kabah.
3. The communication alleges further that the trial of the soldiers by the Court Martial was flawed in law and in violation of Sierra Leone’s obligation under the African Charter.
4. It is also alleged that the Court Martial which tried and convicted the above mentioned victims allowed no right of appeal against conviction or sentence to a higher tribunal and therefore in breach of Article 7(1) of the African Charter on Human and Peoples’ Rights .
5. The Complainant contends that the public execution of the 24 soldiers on 19th October 1998 after being denied right of appeal to a higher tribunal also amounts to an arbitrary deprivation of the right to life contrary to Article 4 of the African Charter.
[?]
Merits
[?]
17. The Commission notes that the trial in issue was that of a purely military nature, i.e. for their alleged roles in the coup which overthrew the elected Government. The Commission is however constrained to hold that the denial of the victim’s right of appeal to competent national organs in a serious offence as this is falls short of the requirement of the respect for fair trial standards expected of such courts. The execution of the 24 soldiers without the right of appeal is therefore a violation of Article 7(1)(a) of the Charter. This is more serious given the fact that the said violation is irreversible. [?].
18. The Complainant alleges a violation of Article 4 of the African Charter on Human and Peoples’ Rights which provides that: Human beings are inviolable. Every human being shall be entitled to respect for his life? No one may be arbitrarily deprived of this right.
19. The right to life is the fulcrum of all other rights. It is the fountain through which other rights flow, and any violation of this right without due process amounts to arbitrary deprivation of life. Having found above that the trial of the 24 soldiers constituted a breach of due process of law as guaranteed under Article 7(1)(a) of the Charter, the Commission consequently finds their execution an arbitrary deprivation of their rights to life provided for in Article 4 of the Charter. Although this process cannot bring the victims back to life, it does not exonerate the government of Sierra Leone from its obligations under the Charter.
20. The Commission notes the failure of the competent authorities of the Republic ofSierra Leone to respond to its request for additional information and arguments on the admissibility and merits of the case. It is noted that the Minister of Justice and Attorney General explained to the Commission’s mission referred to above that the regulations of the military did not allow for the right of appeal. However, before the Commission, the African Charter is the yardstick for determining violations. The rules and regulations governing court martial, to the extent that they do not allow the right of appeal offend the Charter. But it is noted with satisfaction that the law has been amended, subsequent to the mission to Sierra Leone, to bring it into conformity with the Charter.
For the above reasons, the Commission:
Finds the Government of Sierra Leone in violation of Articles 4 and 7(1)(a) of the African Charter on Human and Peoples’ Rights.
Comment
The Commission noted that the lack of the right to appeal in the case of a death sentence constitute a violation of the right to life protected by the African Charter on Human and People’s Rights. This is an important finding, although it is regrettable that, as it has been the case in much of its case-law, the Commission did not further elaborate on the reasoning behind its decision.
Selected additional cases: HRC: Mbenge v. Zaire , Communication No 16/1977, Views of 25 March 1983; Hendricks v. Guyana, Communication No. No. 838/1998, Views of 25 October 2002; Thompson (Eversley) v. St. Vincent and the Grenadines, Communication No. 806/1998, Views of 18 October 2000; and Burrell v. Jamaica , Communication No. 546/1993, Views of 18 July 1995 (see below). African Commission:International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria (see below).
Human Rights supervisory bodies have interpreted the right to life as encompassing the state obligation to refrain from extraditing individuals if their right to life is endangered in the receiving country. Several human rights bodies have examined this issue, in particular in relation to the prohibition of torture or other ill-treatment where the individual may suffer from ‘death row phenomenon’ in the country to which he or she is to be extradited (see also the section on the prohibition of torture and ill-treatment under the death row phenomenon ). Some relevant cases regarding extradition and the right to life are discussed below.
The following case Soering v. The United Kingdom , decided by the European Court of Human Rights, refers to the imminent extradition of the applicant, Mr. Soering, from the United Kingdom to the United States of America, where he feared that he would be sentenced to death on a charge of capital murder and subjected to the ‘death row phenomenon’. This case also deals substantially with the prohibition of torture and is further examined in the section on the prohibition of torture and ill-treatment under the death row phenomenon .
European Court of Human Rights
Application No. 14038/88
Judgement of 7 July 1989
Keywords: life - death penalty – extradition -cruel, inhuman or degrading treatment or punishment - effective remedy
[?]
AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 3 (art. 3)
80. The applicant alleged that the decision by the Secretary of State for the Home Department to surrender him to the authorities of the United States of America would, if implemented, give rise to a breach by the United Kingdom of Article 3 (art. 3) of the Convention [?]
A. Applicability of Article 3 (art. 3) in cases of extradition
81. The alleged breach derives from the applicant’s exposure to the so-called “death row phenomenon”. This phenomenon may be described as consisting in a combination of circumstances to which the applicant would be exposed if, after having been extradited to Virginia to face a capital murder charge, he were sentenced to death.
[?]
B. Application of Article 3 (art. 3) in the particular circumstances of the present case
[?]
(a) General considerations
101. Capital punishment is permitted under certain conditions by Article 2§ 1 (art. 2-1) of the Convention, which reads:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” In view of this wording, the applicant did not suggest that the death penalty per se violated Article 3 (art. 3). He, like the two Government Parties, agreed with the Commission that the extradition of a person to a country where he risks the death penalty does not in itself raise an issue under either Article 2 (art. 2) or Article 3 (art. 3).
On the other hand, Amnesty International in their written comments (see paragraph 8 above) argued that the evolving standards in Western Europe regarding the existence and use of the death penalty required that the death penalty should now be considered as an inhuman and degrading punishment within the meaning of Article 3 (art. 3).
102. Certainly, “the Convention is a living instrument which ? must be interpreted in the light of present-day conditions”; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 (art. 3), “the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field” (see the above-mentioned Tyrer judgment, Series A no. 26, pp. 15-16,§ 31). De facto the death penalty no longer exists in time of peace in the Contracting States to the Convention. In the few Contracting States which retain the death penalty in law for some peacetime offences, death sentences, if ever imposed, are nowadays not carried out. This “virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice”, to use the words of Amnesty International, is reflected in Protocol No. 6 (P6) to the Convention, which provides for the abolition of the death penalty in time of peace. Protocol No. 6 (P6) was opened for signature in April 1983, which in the practice of the Council of Europe indicates the absence of objection on the part of any of the Member States of the Organisation; it came into force in March 1985 and to date has been ratified by thirteen Contracting States to the Convention, not however including the United Kingdom. Whether these marked changes have the effect of bringing the death penalty per se within the prohibition of ill-treatment under Article 3 (art. 3) must be determined on the principles governing the interpretation of the Convention.
103. The Convention is to be read as a whole and Article 3 (art. 3) should therefore be construed in harmony with the provisions of Article 2 (art. 2) (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 31,§ 68). On this basis Article 3 (art. 3) evidently cannot have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2§ 1 (art. 2-1). Subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2§ 1 (art. 2-1) and hence to remove a textual limit on the scope for evolutive interpretation of Article 3 (art. 3). However, Protocol No. 6 (P6), as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention (see paragraph 87 above), Article 3 (art. 3) cannot be interpreted as generally prohibiting the death penalty.’
Comment
In this judgement the European Courtheld that extradition of a person to a country where he/she risks the death penalty would not, in itself, raise any issue either under Article 2 or Article 3 of theEuropean Convention . The Court considered that Article 3 could not ‘have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2(1)’. The Court continued that the manner, however, in which the death penalty is imposed or executed as well as the personal circumstances of the condemned person and conditions of detention, may not result in the condemned person being subjected to inhuman treatment in the sense of Article 3. Here the state must also ensure that the gravity of the crime committed is not disproportional to the punishment.
In the following case, Roger Judge, a citizen of the United States of America, escaped toCanada after being sentenced to death for murder. He committed two robberies inCanada and was sentenced to ten years imprisonment which he completed. He was then deported to the United States within hours of a failed appeal to the Superior Court of Quebec, in which he requested a stay on the implementation of the deportation order. The Committee considered the question of whether Canada, which had abolished the death penalty, violated the author’s right to life, firstly by returning him to face the death penalty without seeking assurances that it would not be carried out, and secondly by returning him to the United States before he could exercise his right to appeal the rejection of his application for a stay of deportation before the Quebec Court of Appeal.
Human Rights Committee
Communication No. 829/1998
Views of 5 August 2002
Keywords: right to life -death sentence- extradition- freedom from cruel, inhuman or degrading treatment or punishment – effective remedy
[?]
The complaint
3.1 The author claims that Canada imposed mental suffering upon him that amounts to cruel, inhuman and degrading treatment or punishment, having detained him for ten years while the certainty of capital punishment was hanging over his head at the conclusion of his sentence, and this constitutes a breach of article 7 of the Covenant. He argues that he suffered from the “death row phenomenon”, during his detention inCanada. This is explained as a state of mental or psychological anguish, and, according to him, it matters little that he would not be executed on Canadian soil. The author claims that the State party had no valid sentencing objective since he was sentenced to death in any event, even though in another State party, and therefore only served to prolong the agony of his confinement while he awaited deportation and execution. It is also submitted that in this respect, the author was not treated with humanity and respect for the inherent dignity of the human person, in violation of article 10 of the Covenant.
3.2 The author claims that “by detaining [him] for ten years despite the fact that he faced certain execution at the end of his sentence, and proposing now to remove him to the United States, Canada has violated [his] right to life, in violation of article 6 of the Covenant.
[?]
Committee’s consideration admissibility
[?]
7.5 As to the alleged violation of article 6 for detaining the author in Canada for crimes committed therein, the Committee considered that he had not substantiated, for purposes of admissibility, how his right to life was violated by his detention in Canada for crimes committed there. This aspect of the communication was declared inadmissible under article 2 of the Optional Protocol.
7.6 The State party had argued that the author could not avail himself of the Optional Protocol to complain about his deportation to the United States, as he had not appealed his request for a stay of the deportation order from the Superior Court of Québec to the Court of Appeal and therefore had not exhausted domestic remedies. The Committee observed the author’s response, that an appeal would have been ineffective as the Court of Appeal would only have dealt with the issue of jurisdiction and not with the merits of the case, and that the State party removed the author within hours of the Superior Court’s decision, thereby rendering an attempt to appeal this decision moot. The Committee noted that the State party had not contested the speed with which theauthor was deported, after the decision of the Superior Court and, therefore, irrespective of whether the author could have appealed his case on the merits, found that it would be unreasonable to expect the author to appeal such a case after his deportation, the very act which was claimed to violate the Covenant. Accordingly, the Committee did not accept the State party’s argument that this part of the communication was inadmissible for failure to exhaust domestic remedies.
7.7 As regards the author’s claim under article 14, paragraph 5, of the Covenant, and that Canada violated article 6 by deporting him, the Committee observed that the author had the right under Pennsylvanian law to a full appeal against his conviction and sentence. Furthermore, the Committee noted that, according to the documents provided by the parties, while the extent of the appeal was limited after the author had become a fugitive, his conviction and sentence were reviewed by the Supreme Court of Pennsylvania, which has a statutory obligation to review all death penalty cases. According to these documents, the author was represented by counsel and the Court reviewed the evidence and law as well as the elements required to sustain a first-degree murder conviction and capital punishment. In these particular circumstances, the Committee found that the author had not substantiated, for purposes of admissibility, his claim that his right under article 14, paragraph 5, was violated and that, therefore, his deportation from Canada entailed a violation by Canada of article 6 of the Covenant.
[?]
7.8 Notwithstanding its decision that the claim based on article 14, paragraph 5, was inadmissible, the Committee considered that the facts before it raised two issues under the Covenant that were admissible and should be considered on the merits:
1. As Canada has abolished the death penalty, did it violate the author’s right to life under article 6, his right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment under article 7, or his right to an effective remedy under article 2, paragraph 3, of the Covenant by deporting him to a State in which he was under sentence of death without ensuring that that sentence would not be carried out?
2. The State party had conceded that the author was deported to the United Statesbefore he could exercise his right to appeal the rejection of his application for a stay of his deportation before the Québec Court of Appeal. As a consequence the author was not able to pursue any further remedies that might be available. By deporting the author to a State in which he was under sentence of death before he could exercise all his rights to challenge that deportation, did the State party violate his rights under articles 6, 7 and 2 of the Covenant?
The Committee concluded that, given the seriousness of these questions, the parties should be afforded the opportunity to comment on them before the Committee expressed its Views on the merits. The parties were requested to provide information on the current procedural situation of the author in the United States and on any prospective appeals he might be able to pursue. The State party was requested to supplement its submissions in relation to the above questions and request for information as soonnas possible, but in any event within three months of the date of transmittal of the admissibility decision. Any statements received from the State party were to be communicated to the author, who would be requested to respond within two months.
[?]
Issues and proceedings before the Committee
10.1 The Human Rights Committee has examined the communication in light of all the information made available to it by the parties, as provided for in Article 5, paragraph 1, of the Optional Protocol.
Question 1. As Canada has abolished the death penalty, did it violate the author’s right to life under Article 6, his right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment under Article 7, or his right to an effective remedy under Article 2, paragraph 3, of the Covenant by deporting him to a State in which he was under sentence of death without ensuring that that sentence would not be carried out?
10.2 In considering Canada’s obligations, as a State party which has abolished the death penalty, in removing persons to another country where they are under sentence of death, the Committee recalls its previous jurisprudence in Kindler v. Canada , that it does not consider that the deportation of a person from a country which has abolished the death penalty to a country where he/she is under sentence of death amounts per se to a violation of Article 6 of the Covenant. The Committee’s rationale in this decision was based on an interpretation of the Covenant which read Article 6, paragraph 1, together with Article 6, paragraph 2, which does not prohibit the imposition of the death penalty for the most serious crimes. It considered that as Canada itself had not imposed the death penalty but had extradited the author to the United States to face capital punishment, a state which had not abolished the death penalty, the extradition itself would not amount to a violation by Canada unless there was a real risk that the author’s rights under the Covenant would be violated in the United States. On the issue of assurances, the Committee found that the terms of Article 6 did not necessarily requireCanada to refuse to extradite or to seek assurances but that such a request should at least be considered by the removing state.
10.3 While recognizing that the Committee should ensure both consistency and coherence of its jurisprudence, it notes that there may be exceptional situations in which a review of the scope of application of the rights protected in the Covenant is required, such as where an alleged—violation involves that most fundamental of rights – the right to life - and in particular if there have been notable factual and legal developments and changes in international opinion in respect of the issue raised. The Committee is mindful of the fact that the above mentioned jurisprudence was established some 10 years ago, and that since that time there has been a broadening international consensus in favour of abolition of the death penalty, and in states which have retained the death penalty, a broadening consensus not to carry it out. Significantly, the Committee notes that since Kindler the State party itself has recognized the need to amend its own domestic law to secure the protection of those extradited from Canada under sentence of death in the receiving state, in the case of United States v. Burns. There, the Supreme Court of Canada held that the government must seek assurances, in all but exceptional cases, that the death penalty will not be applied prior to extraditing an individual to a state where he/she faces capital punishment. It is pertinent to note that under the terms of this judgment, “Other abolitionist countries do not, in general, extradite without assurances.” The Committee considers that the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present–day conditions.
10.4 In reviewing its application of Article 6, the Committee notes that, as required by the Vienna Convention on the Law of Treaties ,—a treaty should be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Paragraph 1 of Article 6, which states that “Every human being has the inherent right to life?”, is a general rule: its purpose is to protect life. States parties that have abolished the death penalty have an obligation under this paragraph to so protect in all circumstances. Paragraphs 2 to 6 of Article 6 are evidently included to avoid a reading of the first paragraph of Article 6, according to which that paragraph could be understood as abolishing the death penalty as such. This construction of the Article is reinforced by the opening words of paragraph 2 (“In countries which have not abolished the death penalty?”) and by paragraph 6 (“Nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”). In effect, paragraphs 2 to 6 have the dual function of creating an exception to the right to life in respect of the death penalty and laying down limits on the scope of that exception. Only the death penalty pronounced when certain elements are present can benefit from the exception. Among these limitations are that found in the opening words of paragraph 2, namely, that only States parties that “have not abolished the death penalty” can avail themselves of the exceptions created in paragraphs 2 to 6. For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.
10.5 The Committee acknowledges that by interpreting paragraphs 1 and 2 of Article 6 in this way, abolitionist and retentionist States parties are treated differently. But it considers that this is an inevitable consequence of the wording of the provision itself, which, as becomes clear from the Travaux Préparatoires, sought to appease very divergent views on the issue of the death penalty, in an effort at compromise among the drafters of the provision. The Committee notes that it was expressed in the Travaux that, on the one hand, one of the main principles of the Covenant should be abolition, but on the other, it was pointed out that capital punishment existed in certain countries and that abolition would create difficulties for such countries. The death penalty was seen by many delegates and bodies participating in the drafting process as an “anomaly” or a “necessary evil”. It would appear logical, therefore, to interpret the rule in Article 6, paragraph 1, in a wide sense, whereas paragraph 2, which addresses the death penalty, should be interpreted narrowly.
10.6 For these reasons, the Committee considers that Canada, as a State party which has abolished the death penalty, irrespective of whether it has not yet ratified the Second Optional Protocol to the Covenant Aiming at the Abolition of the Death Penalty, violated the author’s right to life under Article 6, paragraph 1, by deporting him to the United States, where he is under sentence of death, without ensuring that the death penalty would not be carried out. The Committee recognizes that Canada did not itself impose the death penalty on the author. But by deporting him to a country where he was under sentence of death, Canada established the crucial link in the causal chain that would make possible the execution of the author.
10.7 As to the State party’s claim that its conduct must be assessed in the light of the law applicable at the time when the alleged treaty violation took place, the Committee considers that the protection of human rights evolves and that the meaning of Covenant rights should in principle be interpreted by reference to the time of examination and not, as the State party has submitted, by reference to the time the alleged violation took place. The Committee also notes that prior to the author’s deportation to the United States the Committee’s position was evolving in respect of a State party that had abolished capital punishment (and was a State party to the Second Optional Protocol to the International Covenant on Human Rights, aiming at the abolition of the death penalty), from whether capital punishment would subsequent to removal to another State be applied in violation of the Covenant to whether there was a real risk of capital punishment as such (Communication No. 692/1996, A.R.J. v. Australia, Views adopted on 28 July 1997 and Communication No. 706/1996, G.T. v. Australia, Views adopted on 4 November 1997). Furthermore, the State party’s concern regarding possible retroactivity involved in the present approach has no bearing on the separate issues to be addressed under question 2 below.
Question 2. The State party had conceded that the author was deported to the United States before he could exercise his right to appeal the rejection of his application for a stay of his deportation before the Québec Court of Appeal. As a consequence the author was not able to pursue any further remedies that might be available. By deporting the author to a State in which he was under sentence of death before he could exercise all his rights to challenge that deportation, did the State party violate his rights under Articles 6, 7 and 2, paragraph 3 of the Covenant?
10.8 As to whether the State party violated the author’s rights under Articles 6, and 2, paragraph 3, by deporting him to the United States where he is under sentence of death, before he could exercise his right to appeal the rejection of his application for a stay of deportation before the Québec Court of Appeal and, accordingly, could not pursue further available remedies, the Committee notes that the State party removed the author from its jurisdiction within hours after the decision of the Superior Court of Québec, in what appears to have been an attempt to prevent him from exercising his right of appeal to the Court of Appeal. It is unclear from the submissions before the Committee to what extent the Court of Appeal could have examined the author’s case, but the State party itself concedes that as the author’s petition was dismissed by the Superior Court for procedural and substantive reasons (see para. 4.5 above), the Court of Appeal could have reviewed the judgment on the merits.
10.9 The Committee recalls its decision in A. R. J. v. Australia, a deportation case where it did not find a violation of Article 6 by the returning state as it was not foreseeable that he would be sentenced to death and “because the judicial and immigration instances seized of the case heard extensive arguments” as to a possible violation of Article 6. In the instant case, the Committee finds that, by preventing the author from exercising an appeal available to him under domestic law, the State party failed to demonstrate that the author’s contention that his deportation to a country where he faces execution would violate his right to life, was sufficiently considered. The State party makes available an appellate system designed to safeguard any petitioner’s, including the author’s, rights and in particular the most fundamental of rights – the right to life. Bearing in mind that the State party has abolished capital punishment, the decision to deport the author to a state where he is under sentence of death without affording him the opportunity to avail himself of an available appeal, was taken arbitrarily and in violation of Article 6, together with Article 2, paragraph 3, of the Covenant.
10.10. Having found a violation of Article 6, paragraph 1 alone and, read together with Article 2, paragraph 3 of the Covenant, the Committee does not consider it necessary to address whether the same facts amount to a violation of Article 7 of the Covenant.
11. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal a violation by Canada of Articles 6, paragraph 1 alone and, read together with 2, paragraph 3, of the International Covenant on Civil and Political Rights.’
Comment
It is worth stressing that this case reverses the unfortunate approach adopted by the Human Rights Committee in its decisions in Kindler v. Canada (Communication No. 470/1990, Views of 30 July 1993; Ng v. Canada (Communication No. 469/1991, Views of 5 November 1993); and Cox v. Canada (Communication No. 539/1993; Views of 31 October 1994).
In the Kindler case, the applicant (Mr. Kindler) was requested for extradition in Pennsylvania (i.e. a state which had not abolished the death penalty), where he had been convicted of first degree murder and then escaped to Canada after the jury recommended imposition of the death penalty (which would be carried out by lethal injection). The Committee considered that as Canada itself had not imposed the death penalty but had extradited the author to the United States to face capital punishment, the extradition itself would not amount to a violation by Canada unless there was a real risk that the author’s rights under the Covenant would be violated in the United States.
In the Ng case, the Committee held ‘the Committee does not find that the terms of Article 6 of the Covenant necessarily require Canadato refuse to extradite or to seek assurances [that there is no risk of arbitrary imposition of the death penalty]. The Committee notes that the extradition of Mr. Ng would have violated Canada’s obligations under Article 6 of the Covenant if the decision to extradite without assurances had been taken summarily or arbitrarily. The evidence before the Committee reveals, however, that the Minister of Justice reached his decision [not to seek assurances] after hearing extensive arguments in favour of seeking assurances’ (para 15.6).
In Mr. Cox’s case, the Committee reaffirmed its earlier position on the right to life. The Committee observed that, if Mr. Cox’s extradition from Canadahad exposed him to a real risk of a violation of Article 6(2) in the United States, this would have entailed a violation by Canadaof its obligations of the right to life. In the circumstances of this particular case, the Committee found that the existence of such risk had not been shown and consequently found no violation of Article 6(1) by Canada. It is worth noting that five members of the Committee appended dissenting opinions, arguing that Canadahad violated Article 6.
In the Judge case, the Committee reviewed its position. The Committee considered that for countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, by deporting the author to the United States of Americawhere he was under sentence of death, Canadaestablished the crucial link in the causal chain that would make possible the execution of the author and therefore violated Article 6 of the Covenant. In addition, the Committee found a separate violation of Article 6, together with Article 2(2) ICCPR as a result of his deportation to theUnited Statesbefore he could exercise his right to appeal. Although it was not openly decided in this case, the Human Rights Committee’s views also imply that abolition of the death penalty is a one-way street: once a country abolishes capital punishment, its reintroduction is inconsistent with Article 6 ICCPR.
Selected additional cases: HRC: Kindler v. Canada, Communication No. 470/1990, Views of 30 July 1993; Ng v. Canada, Communication No. 469/1991, Views of 5 November 1993; and Cox v. Canada, Communication No. 539/1993; Views of 31 October 1994. ECHR: Chahal v. The United Kingdom , Application No. 22414/93, Judgement of 15 November 1996 and Cruz Varas et al. v. Sweden , Application No. 15576/89, Judgment of 20 March 1991.
Disappearances and extra judicial executions
It has proved very difficult to find a definition of ‘disappearances’ which encompasses all the elements of this crime. The Inter-American Convention on the Forced Disappearance of Persons defines disappearances as:
[T]he act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorisation, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees. (Article 2).
In the following case Manfredo Velásquez, a university student, was forcibly detained without a warrant for his arrest and subsequently ‘disappeared’. The police and security forces denied that he had been detained. During the proceedings it was proven that from 1981 to 1984 there were many kidnappings and disappearances in Honduras, and that those disappearances followed a similar pattern and were attributable to the Armed Forces of Honduras. The Inter-American Commission requested that the Court determine whether Honduras had violated Articles 4 (right to life), 5 (right to humane treatment) and 7 (right to personal liberty) of the Convention.
Velásquez Rodriguez v. Honduras
Inter-American Court of Human Rights
Series C. No. 4 (1988)
Judgement of 29 July 1988
Keywords: life - duty to investigate - arbitrary arrest or detention - disappearance - exhaustion of domestic remedies - liberty of person - physical integrity – compensation - torture
[?]
V
119. The testimony and documentary evidence, corroborated by press clippings, presented by the Commission, tend to show:
a. That there existed in Honduras from 1981 to 1984 a systematic and selective practice of disappearances carried out with the assistance or tolerance of the government;
b. That Manfredo Velásquez was a victims of that practice and was kidnapped and presumably tortured, executed and clandestinely buried by agents of the Armed Forces of Honduras, andc. That in the period in which those acts occurred, the legal remedies available in Honduras were not appropriate or effective to guarantee his rights to life, liberty and personal integrity.
[?]
IX
147. The Court now turns to the relevant facts that it finds to have been proven. They are as follows:
a. During the period 1981 to 1984, 100 to 150 persons disappeared in the Republic ofHonduras, and many were never heard from again (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings).
b. Those disappearances followed a similar pattern, beginning with the kidnapping of the victims by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity and who used vehicles without any official identification, with tinted windows and with false license plates or no plates (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings).
c. It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings).
d. The disappearances were carried out in a systematic manner, regarding which the Court considers the following circumstances particularly relevant:
i. The victims were usually persons whom Honduran officials considered dangerous to State security (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Inés Consuelo Murillo, José Gonzalo Flores Trejo, Zenaida Velásquez, César Augusto Murillo and press clippings). In addition, the victims had usually been under surveillance for long periods of time (testimony of Ramón Custodio López and Florencio Caballero);
ii. The arms employed were reserved for the official use of the military and police, and the vehicles used had tinted glass, which requires special official authorization. In some cases, Government agents carried out the detentions openly and without any pretense or disguise; in others, government agents had cleared the areas where the kidnappings were to take place and, on at least one occasion, when government agents stopped the kidnappers they were allowed to continue freely on their way after showing their identification (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López and Florencio Caballero);
iii. The kidnappers blindfolded the victims, took them to secret, unofficial detention centers and moved them from one center to another. They interrogated the victims and subjected them to cruel and humiliating treatment and torture. Some were ultimately murdered and their bodies were buried in clandestine cemeteries (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Florencio Caballero, René Velásquez Díaz, Inés Consuelo Murillo and José Gonzalo Flores Trejo);
iv. When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Zenaida Velásquez, César Augusto Murillo and press clippings);
v. Military and police officials as well as those from the Executive and Judicial Branches either denied the disappearances or were incapable of preventing or investigating them, punishing those responsible, or helping those interested discover the whereabouts and fate of the victims or the location of their remains. The investigative committees created by the Government and the Armed Forces did not produce any results. The judicial proceedings brought were processed slowly with a clear lack of interest and some were ultimately dismissed (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Zenaida Velásquez, César Augusto Murillo and press clippings);
e. On September 12, 1981, between 4:30 and 5:00 p.m., several heavily-armed men in civilian clothes driving a white Ford without license plates kidnapped Manfredo Velásquez from a parking lot in downtown Tegucigalpa. Today, nearly seven years later, he remains disappeared, which creates a reasonable presumption that he is dead (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar Villalobos and press clippings).
f. Persons connected with the Armed Forces or under its direction carried out that kidnapping (testimony of Ramón Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar Villalobos and press clippings).
g. The kidnapping and disappearance of Manfredo Velásquez falls within the systematic practice of disappearances referred to by the facts deemed proved in paragraphs a-d. To wit:
i. Manfredo Velásquez was a student who was involved in activities the authorities considered “dangerous” to national security (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López and Zenaida Velásquez).
ii. The kidnapping of Manfredo Velásquez was carried out in broad daylight by men in civilian clothes who used a vehicle without license plates.
iii. In the case of Manfredo Velásquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of habeas corpus and two criminal complaints were brought (testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, press clippings and documentary evidence).
h. There is no evidence in the record that Manfredo Velásquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time.
148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: (1) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; (2) Manfredo Velásquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and (3) the Government of Honduras failed to guarantee the human rights affected by that practice.
X
[?]
155. The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee’s right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to personal liberty [?]
156. Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person [?].
In addition, investigations into the practice of disappearances and the testimony of victims who have regained their liberty show that those who are disappeared are often subjected to merciless treatment, including all types of indignities, torture and other cruel, inhuman and degrading treatment, in violation of the right to physical integrity recognized in Article 5 of the Convention.
157. The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. This is a flagrant violation of the right to life, recognized in Article 4 of the Convention [?]
158. The practice of disappearances, in addition to directly violating many provisions of the Convention, such as those noted above, constitutes a radical breach of the treaty in that it shows a crass abandonment of the values which emanate from the concept of human dignity and of the most basic principles of the inter-American system and the Convention. The existence of this practice, moreover, evinces a disregard of the duty to organize the State in such a manner as to guarantee the rights recognized in the Convention, as set out below.
[?]
XI
[?]
174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.
175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages. It is not possible to make a detailed list of all such measures, since they vary with the law and the conditions of each State Party. Of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures. On the other hand, subjecting a person to official, repressive bodies that practice torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life and physical integrity of the person, even if that particular person is not tortured or assassinated, or if those facts cannot be proven in a concrete case.
176. The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.
177. In certain circumstances, it may be difficult to investigate acts that violate an individual’s rights. 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. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.
178. In the instant case, the evidence shows a complete inability of the procedures of the State of Honduras, which were theoretically adequate, to carry out an investigation into the disappearance of Manfredo Velásquez, and of the fulfillment of its duties to pay compensation and punish those responsible, as set out in Article 1 (1) of the Convention.
179. As the Court has verified above, the failure of the judicial system to act upon the writs brought before various tribunals in the instant case has been proven. Not one writ of habeas corpus was processed. No judge has access to the places where Manfredo Velásquez might have been detained. The criminal complaint was dismissed.
180. Nor did the organs of the Executive Branch carry out a serious investigation to establish the fate of Manfredo Velásquez. There was no investigation of public allegations of a practice of disappearances nor a determination of whether Manfredo Velásquez had been a victim of that practice. The Commission’s requests for information were ignored to the point that the Commission had to presume, under Article 42 of its Regulations, that the allegations were true. The offer of an investigation in accord with Resolution 30/83 of the Commission resulted in an investigation by the Armed Forces, the same body accused of direct responsibility for the disappearances. This raises grave questions regarding the seriousness of the investigation. The Government often resorted to asking relatives of the victims to present conclusive proof of their allegations even though those allegations, because they involved crimes against the person, should have been investigated on the Government’s own initiative in fulfillment of the State’s duty to ensure public order. This is especially true when the allegations refer to a practice carried out within the Armed Forces, which, because of its nature, is not subject to private investigations. No proceeding was initiated to establish responsibility for the disappearance of Manfredo Velásquez and apply punishment under internal law. All of the above leads to the conclusion that the Honduran authorities did not take effective action to ensure respect for human rights within the jurisdiction of that State as required by Article 1 (1) of the Convention.
181. The duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.
182. The Court is convinced, and has so found, that the disappearance of Manfredo Velásquez was carried out by agents who acted under cover of public authority. However, even had that fact not been proven, the failure of the State apparatus to act, which is clearly proven, is a failure on the part of Honduras to fulfill the duties it assumed under Article 1 (1) of the Convention, which obligated it to ensure Manfredo Velásquez the free and full exercise of his human rights.
183. The Court notes that the legal order of Honduras does not authorize such acts and that internal law defines them as crimes. The Court also recognizes that not all levels of the Government of Honduras were necessarily aware of those acts, nor is there any evidence that such acts were the result of official orders. Nevertheless, those circumstances are irrelevant for the purposes of establishing whether Honduras is responsible under international law for the violations of human rights perpetrated within the practice of disappearances.
184. According to the principle of the continuity of the State in international law, responsibility exists both independently of changes of government over a period of time and continuously from the time of the act that creates responsibility to the time when the act is declared illegal. The foregoing is also valid in the area of human rights although, from an ethical or political point of view, the attitude of the new government may be much more respectful of those rights than that of the government in power when the violations occurred.
185. The Court, therefore, concludes that the facts found in this proceeding show that the State of Honduras is responsible for the involuntary disappearance of Angel Manfredo Velásquez Rodríguez. Thus, Honduras has violated Articles 7, 5 and 4 of the Convention.
186. As a result of the disappearance, Manfredo Velásquez was the victim of an arbitrary detention, which deprived him of his physical liberty without legal cause and without a determination of the lawfulness of his detention by a judge or competent tribunal. Those acts directly violate the right to personal liberty recognized by Article 7 of the Convention (supra 155) and are a violation imputable to Honduras of the duties to respect and ensure that right under Article 1 (1).
187. The disappearance of Manfredo Velásquez violates the right to personal integrity recognized by Article 5 of the Convention (supra 156). First, the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person, and violates the right of every detainee under Article 5 (1) and 5 (2) to treatment respectful of his dignity. Second, although it has not been directly shown that Manfredo Velásquez was physically tortured, his kidnapping and imprisonment by governmental authorities, who have been shown to subject detainees to indignities, cruelty and torture, constitute a failure of Honduras to fulfill the duty imposed by Article 1 (1) to ensure the rights under Article 5 (1) and 5 (2) of the Convention. The guarantee of physical integrity and the right of detainees to treatment respectful of their human dignity require States Parties to take reasonable steps to prevent situations which are truly harmful to the rights protected.
188. The above reasoning is applicable to the right to life recognized by Article 4 of the Convention (supra 157). The context in which the disappearance of Manfredo Velásquez occurred and the lack of knowledge seven years later about his fate create a reasonable presumption that he was killed. Even if there is a minimal margin of doubt in this respect, it must be presumed that his fate was decided by authorities who systematically executed detainees without trial and concealed their bodies in order to avoid punishment. This, together with the failure to investigate, is a violation by Honduras of a legal duty under Article 1 (1) of the Convention to ensure the rights recognized by Article 4 (1). That duty is to ensure every person subject to its jurisdiction the inviolability of the right to life and the right not to have one’s life taken arbitrarily. These rights imply an obligation on the part of States Parties to take reasonable steps to prevent situations that could result in the violation of that right.
[?]
XIV
194. THEREFORE,
THE COURT:
[?]
Unanimously
2. Declares that Honduras has violated, in the case of Angel Manfredo Velásquez Rodríguez, its obligations to respect and to ensure the right to personal liberty set forth in Article 7 of the Convention, read in conjunction with Article 1 (1) thereof.
Unanimously
3. Declares that Honduras has violated, in the case of Angel Manfredo Velásquez Rodríguez, its obligations to respect and to ensure the right to humane treatment set forth in Article 5 of the Convention, read in conjunction with Article 1 (1) thereof.
Unanimously
4. Declares that Honduras has violated, in the case of Angel Manfredo Velásquez Rodríguez, its obligation to ensure the right to life set forth in Article 4 of the Convention, read in conjunction with Article 1 (1) thereof.’
Comment
This Judgement contains several important issues to be highlighted. First, in regard to the burden of proof and issues of the evidence, although the direct involvement of the military forces in the kidnapping of Mr. Manfredo Velásquez was not proven, in light of the context in which the disappearance of Manfredo Velásquez occurred and the lack of knowledge of his whereabouts after seven years, the Court considered that there was a reasonable presumption the he had been ‘disappeared at the hands of or with he acquiescence of’ Honduran officials and that the Government had failed to guarantee the human rights affected by that practice. Second, the Court found that the disappearance violated the right to humane treatment, the right to personal liberty and security and the right to life. Thirdly, the Court found, that Article 1(1) of the Convention imposed upon states a legal duty to take reasonable steps to prevent human rights violations and to use the means at their disposal to carry out a serious investigation of violations committed within there jurisdiction, to identify those responsible, impose the appropriate punishment and ensure the victim adequate compensation (see paras. 174-177) (see below:‘The duty to take‘reasonable’ measures to protect an individual whose life is at risk from the criminal acts of other individuals’). The Court was convinced that the disappearance of Manfredo Velásquez was carried out by agents who acted under cover of public authority. Nonetheless, as the Court noted even had the fact not been proven, it is a failure on the part of Honduras to fulfil the duties it assumed Article 1(1) of the Convention, which obligated it to guarantee Manfredo Velasquez the free and full exercise of his human rights (para. 182).
The Velásquez Rodriguez case, is a landmark case in international law but it should be noted that the Inter-American Courthas dealt with the issue of forced disappearance of persons in more recent cases, for instance Bámaca Velásquez v. Guatemala . Both cases are also discussed under the prohibition of torture (§ 5.B).
In Bámaca Velásquez v. Honduras, the petition alleged that Efrain Bámaca Velásquez, a guerrilla commander, was captured by the Guatemalan army in March 1992. The army claimed that Bámaca Velásquez had committed suicide to avoid capture, and directed investigators to the burial site of an unidentified man who matched Bámaca Velásquez’s description. Forensic tests later concluded that this was not Bámaca and evidence later showed that Efraín Bámaca Velásquez was detained and tortured by the army and presumably also executed extrajudicially.
Inter-American Court of Human Rights
Series C. No. 70 (2000)
Judgement of 25 November 2000
Keywords: right to life- investigation- Arbitrary arrest and detention - disappearance - right to personal liberty - right to physical integrity - freedom from torture- right to an effective remedy – right to know the truth
[?]
X
FORCED DISAPPEARANCE OF PERSONS
[?]
128. Involuntary or forced disappearance constitutes a multiple and continuing violation of a number of rights protected by the Convention , because not only does it produce an arbitrary deprivation of liberty, but it also endangers personal integrity, safety and the very life of the detainee. Moreover, it places the victim in a state of complete defenselessness, resulting in other related crimes.
129. This phenomenon also presumes ‘a disregard of the duty to organize the apparatus of the State in such a manner as to guarantee the rights recognized in the Convention.’ Therefore, when it implements or tolerates actions tending to execute forced or involuntary disappearances, when it does not investigate them adequately and does not punish those responsible, when applicable, the State violates the obligation to respect the rights protected by the Convention and to guarantee their free and full exercise, of both the victim, and of his next of kin to know his whereabouts.
130. According to the jurisprudence of this Court, forced disappearance ‘frequently involves secret execution [of those detained], without trial, following by concealment of the corpse in order to eliminate any material evidence of the crime and to ensure the impunity of those responsible’. Due to the nature of the phenomenon and its probative difficulties, the Court has established that if it has been proved that the State promotes or tolerates the practice of forced disappearance of persons, and the case of a specific person can be linked to this practice, either by circumstantial or indirect evidence, or both, or by pertinent logical inference, then this specific disappearance may be considered to have been proven.
131. Taking this into account, the Court attributes a high probative value to testimonial evidence in proceedings of this type, that is, in the context and circumstances of cases of forced disappearance, with all the attendant difficulties, when, owing to the very nature of the crime, proof essentially takes the form of indirect and circumstantial evidence.
132. This Court has considered proven, on the basis of both the circumstantial evidence and the direct evidence, that, as the Commission has indicated, at the time of the facts of the case, the Army had a practice of capturing guerrillas, detaining them clandestinely without advising the competent, independent and impartial judicial authority, physically and mentally torturing them in order to obtain information and, eventually, killing them(supra 121f). It can also be asserted, according to the evidence submitted in this case, that the disappearance of Efraín Bámaca Velásquez is related to this practice (supra—121 h, i, j, k, l), and therefore the Court deems it to have been proved.
133. There is sufficient evidence to conclude that the facts indicated in relation to Efraín Bámaca Velásquez were carried out by persons who acted in their capacity as agents of the State, which involves the international responsibility of Guatemala as State Party to the Convention.
134. It has also been proved that, despite the various domestic remedies used in order to clarify the facts, these were not effective to prosecute and, if applicable, punish those responsible (supra 121 m). Guatemala even accepted its international responsibility, stating that ihit has still not been possible for the competent bodies to identify the persons or person criminally responsible for the unlawful acts that are the subject of this application.
135. Now that it”has been proved that the detention and disappearance of Efraín Bámaca Velásquez occurred and that they may be attributed to the State, the Court will examine these facts in the light of the American Convention.
[?]
XIII
VIOLATION OF ARTICLE 4
(RIGHT TO LIFE)
[?]
173. In this case, the circumstances in which the detention by State agents of Bámaca Velásquez occurred, the victim’s condition as a guerrilla commander, the State practice of forced disappearances and extrajudicial executions (supra 121 b, d, f, g) and the passage of eight years and eight months since he was captured, without any more news of him, cause the Court to presume that Bámaca Velásquez was executed.
174. This Court has indicated on previous occasions and in this judgment itself, that although the State has the right and obligation to guarantee its security and maintain public order, its powers are not unlimited, because it has the obligation, at all times, to apply procedures that are in accordance with the law and to respect the fundamental rights of each individual in its jurisdiction (supra 143).
175. In view of the foregoing, the Court concludes that the State violated Article 4 of the American Convention, to the detriment of Efraín Bámaca Velásquez.
Comment
Although this case has been discussed here within the context of the right to life, it is important to note that it deals with several other important issues. For example, it refers to the right of the next of kin of the victim and society as a whole to know the truth about the fate of a ‘disappeared’ person. According to the Court, ‘the right to the truth is subsumed in the right of the victim or his next of kin to obtain clarification of the facts relating to the violations and the corresponding responsibilities from the competent State organs, through the investigation and prosecution established in articles 8 and 25 of the Convention’ (see paras.19- 202).
It is also worth noting that in this case the Court found that there had been a violation of Article 1(1) of the American Convention on Human Rights that stipulates the duty to ensure respect for the rights in the American Convention, in relation to Article 3 common to the Geneva Conventions (paras. 205-210).
The following case deals with the disappearance of the applicant’s two sons, Ikram and Servet Ipek, who were allegedly last seen by three persons who were taken into detention with the two brothers. The applicant also alleged the destruction of his family home and property in the course of an operation conducted by Turkish security forces in his village on 18 May 1994. According to the applicant, it must be presumed that his sons died in circumstances for which the authorities were responsible. He complained that no meaningful investigation had been carried out into the disappearance and subsequent death of his sons. The government disputed the facts, arguing that no security operation was conducted in the village on the specified date and neither the applicant’s sons nor any other person had been taken into custody. Therefore, the key aspect of the case was to determine whether a military operation had been conducted on the day and place alleged. The applicant’s complaints in respect of his missing sons and the destruction of his property depended on the establishment of that premise.
European Court of Human Rights
Application No. 25760/94
Judgement of 17 February 2004
Keywords: life - inhuman treatment or punishment - liberty of person - security of person - effective remedy -property - non-discrimination - abuse of authority
[?]
General principles
109. The Court recalls its recent jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (Orhan v. Turkey, no. 25656/94,§ 264, ECHR 2002; Tepe v. Turkey, no. 27244/95,§ 125, 9 May 2003; and Yöyler v. Turkey, no. 26973/95,§ 52, 24 July 2003). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, p. 65,§ 161).
110. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made in respect of the disappearance of individuals following their detention and destruction of property by agents of the State, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Orhan v. Turkey, cited above,§ 265), even if certain domestic proceedings and investigations have already taken place.
[?]
The Court’s assessment
1. General considerations
163. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324,§ 146-147).
164. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, amongst other authorities, Avsar, cited above,§ 391). The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see Orhan, cited above,§ 326).
165. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( Salman v. Turkey [GC], no. 21986/93,§ 100, ECHR 2000-VII; Çakici, cited above,§ 85; Ertak v. Turkey, no. 20764/92,§ 32, ECHR 2000-V, and Timurtas v. Turkey , no. 23531/94,§ 82, ECHR 2000-VI, and Orhan, cited above,§ 327).
2. Whether Ikram and Servet Ipek can be presumed dead
166. The Court reiterates its considerations in the above-cited Timurtas judgment, where it held (at§ 82-83):
(?) Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities (?). Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (?).
In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. In this respect the Court considers that this situation gives rise to issues which go beyond a mere irregular detention in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (?).”
167. [?] Although the Court is unable to determine the fate of the applicant’s two sons, given the general context of the situation in south-east Turkey in 1994, there are strong grounds for believing that their unacknowledged detention would be life-threatening (Orhan, cited above,§ 330; Timurtas, cited above,§ 85 and the Çiçek, cited above, § 146). [?]
168. For the above reasons, and taking into account that no information has come to light concerning the whereabouts of the applicant’s sons for almost nine and a half years, the Court is satisfied that Servet and Ikram Ipek must be presumed dead following their unacknowledged detention by the security forces. Consequently, the responsibility of the respondent State for their death is engaged. Noting that the authorities have not provided any explanation as to what occurred following the Ipek brothers’ apprehension, and that they do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for their death is attributable to the respondent Government (Timurtas,§ 86, and Çiçek, at§ 147, Orhan,§ 331, judgments cited above). Accordingly, there has been a violation of Article 2 on that account.
3. The alleged inadequacy of the investigation
169. The Court recalls that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, the McCann and Others judgment, cited above,§ 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I,§ 105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, Ilhan v. Turkey [GC], no. 22277/93,§ 63, ECHR 2000-VII).
170. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, § 81-82, and Ogur v. Turkey [GC], no. 21954/93,§ 91-92, ECHR 1999-III). The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (for example, the Kaya, cited above,§ 87) and to the identification and punishment of those responsible (Ogur, cited above,§ 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye witness testimony (see, concerning witnesses, for example, Tanrikulu, cited above,§ 109). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard.
171. There is also a requirement of promptness and reasonable expedition implicit in this context (Yasa v. Turkey judgment of 2 September 1998, Reports 1998-IV,§ 102-104; Çakici, cited above,§ 80, 87, 106; Tanrikul, cited above,§ 109, Mahmut Kaya, cited above,§ 106-107). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force or disappearance may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, in general, McKerr v. the United Kingdom , no. 28883/95,§ 108-115, ECHR 2001-III and Avsar, cited above,§ 390-395). The need for promptness is especially important when allegations are made of a disappearance in detention (Orhan, cited above,§ 336).
[?]
177. In the light of the above, the Court considers that the investigations carried out into the disappearance of the applicant’s two sons were seriously inadequate and deficient. It concludes therefore that there has also been a violation of Article 2 of the Convention under its procedural limb.’
Comment
During the proceedings, the European Courtfound that the state fell short of its obligations to furnish all necessary facilities to the Court in its task of establishing the facts. The Court stressed that the state has the burden of proof and must provide a satisfactory and convincing explanation as to the whereabouts of persons in detention.
The Court found a violation of the right to life on account of the fact that the applicant’s sons must be presumed dead following the unacknowledged detention by the security forces and the lack of an explanation by the authorities as to what had occurred. In addition, the Court also found a violation of the right to life as a result of the inadequate and inefficient investigation into their disappearances (see Duty to carry out an effective official investigation when individuals have been killed or ‘disappeared’ ).
Selected additional cases: I/A Court H.R.: Godínez Cruz v. Honduras , Judgement of20 January 1989, Series C No. 5 (see below); Caballero Delgado and Santana v. Colombia , Judgment of 8 December 1995, Series C No. 31. African Commission:Commission Nationale des Droits de l’Homme et des Libertes v. Chad , Communication 74/92, Ninth Activity report 1995-1996. HRC: Bleier v. Uruguay Communication No. 30/1978, Views of 29 March 1982;Sanjuan Arévalo v. Colombia , Communication No. 181/1984, Views of 3 November 1989;Mojica v. Dominican Republic , Communication No. 449/1991, Views of 15 July 1994. ECHR: Tas v. Turkey, Application No. 24396/94, Judgment of 14 November 2000, Kaya v. Turkey, Application Nos. 158/1996/777/978, Judgement of 19 February 1998 (see below);Cyprus v. Turkey , Application No. 25781/94, Judgment of 10 May 2001 (see below); and Tahsin Acar v. Turkey , Application No. 26307/95, Judgment of 8 April 2004.