protection and redress for victims of crime and human rights violations

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Chapter 15 • Protection and Redress for Victims of Crime and Human Rights Violationsthat [had] been executed”. This consideration alone was sufficient for the Court toconclude that Guatemala had violated article 1(1) of the Convention. 164*****The duty to investigate, prosecute and punish human rights violations is, ofcourse, equally valid for the Contracting States to the European Convention on HumanRights. In numerous cases, for example, the European Court of Human Rights hasemphasized the obligation to investigate in relation to the right to life. Its jurisprudenceon this important issue was well summarized in the Avsar case, in which it held:“393. The obligation to protect the right to life under article 2 of theConvention, read in conjunction with the State’s general duty under article1 of the Convention to ‘secure to everyone within (its) jurisdiction therights and freedoms defined in (the) Convention’, also requires byimplication that there should be some form of effective officialinvestigation when individuals have been killed as a result of the use offorce ... The essential purpose of such investigation is to secure theeffective implementation of the domestic laws which protect the right tolife and, in those cases involving state agents and bodies, to ensure theiraccountability for deaths occurring under their responsibility. What formof investigation will achieve those purposes may vary in differentcircumstances. However, whatever mode is employed, the authorities mustact of their own motion, once the matter has come to their attention. Theycannot leave it to the initiative of the next of kin either to lodge formalcomplaint or to take responsibility for the conduct of any investigatoryprocedures ...394. For an investigation into alleged unlawful killing by state agents to beeffective, it may generally be regarded as necessary for the personsresponsible for and carrying out the investigation to be independent fromthose implicated in the events ... The investigation must also be effective inthe sense that it is capable of leading to a determination of whether theforce used in such cases was or was not justified in the circumstances ... andto the identification and punishment of those responsible ... This is not anobligation of result, but of means. The authorities must have taken thereasonable steps available to them to secure the evidence concerning theincident, including inter alia eye witness testimony, forensic evidence, andwhere appropriate, an autopsy which provides a complete and accuraterecord of injury and an objective analysis of clinical findings, including thecause of death ... Any deficiency in the investigation which undermines itsability to establish the cause of death or the person responsible will riskfalling foul of this standard.395. There must also be a requirement of promptness and reasonableexpedition implicit in this context ... It must be accepted that there may beobstacles or difficulties which prevent progress in an investigation in aparticular situation. However, a prompt response by the authorities ininvestigating a use of lethal force may generally be regarded as essential in164 I-A Court HR, Villagrán Morales et al. Case (The “Street Children” Case), judgment of November 19, 1999, Series C, No. 63, p. 195,para. 228.798 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
Chapter 15 • Protection and Redress for Victims of Crime and Human Rights Violationsmaintaining public confidence in their maintenance of the rule of law andin preventing any appearance of collusion in or tolerance of unlawfulacts.” 165Moreover, as pointed out by the Court in the Avsar case, in which unlawfulkillings were allegedly “carried out under the auspices of the security forces with theknowledge and acquiescence of the State authorities”, the situation raised “seriousconcerns about the State’s compliance with the rule of law and its respect in particularfor the right to life”. It followed that, in such circumstances, the procedural obligationunder article 2 of the European Convention with regard to the right to life “must beregarded as requiring a wider examination”. 166In this case, the victim had been taken from his house by seven persons,namely village guards, MM (the person who confessed) and one security guard. He wastaken to the gendarmerie from where he was later removed and killed. The Courtconcluded that article 2 of the Convention had been violated because “the investigationby the gendarmes, public prosecutor and before the criminal court did not provide aprompt or adequate investigation of the circumstances surrounding the killing ofMehmet Serif Avsat”. There had therefore been a “breach of the State’s proceduralobligation to protect the right to life”. 167 The Court concluded, moreover, that theGovernment was responsible for Mr. Avsat’s death, a finding that resulted in a violationof its substantive obligation to ensure the right to life under article 2 of the EuropeanConvention. 168 It is noteworthy that the village guards and the confessor wereprosecuted and convicted in this case but not the seventh person, the security official.These circumstances “rendered recourse to civil remedies ... ineffective in thecircumstances [and] did not provide sufficient redress for the applicant’s complaintsconcerning the authorities’ responsibility for his brother’s death”. He could thereforecontinue to claim to be a victim of a violation of article 2 on behalf of his brother. 1693.5.3 The role of victims during investigations and court proceedingsThe role of victims or their next-of-kin is essential during investigations into,and court proceedings regarding, human rights violations, and is of course particularlyimportant in inquiries into killings, torture and other forms of violence, includinggender-based violence, whether committed by private persons or State officials. Judges,prosecutors and lawyers must therefore at all times ensure that the affected persons areheard at all appropriate times during the investigations, as well as in connection withany ensuing court proceedings. They must also be particularly sensitive andunderstanding in cases concerning, for instance, disappearances. The trauma felt by thefamily members of disappeared persons is profound. Their anguish at not knowing thefate of their beloved ones is deep and has a marked and lasting impact on their lives.The legal professions should therefore show courtesy and understanding for the165 Eur. Court HR, Case of Avsar v. Turkey, judgment of 10 July 2001, paras. 393-395 of the decision as published at:http://echr.coe.int166 Ibid., para. 404.167 Ibid., para. 408; emphasis added.168 Ibid., para. 416.169 Ibid., paras. 408 and 415.Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 799
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