A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

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1 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS Paul Mahoney (*) FOREWORD The legal notion of a positive duty on States to investigate possible human rights violations is a relatively recent development in the case-law of the European Court of Human Rights ( the European Court ). It is however one that the latterʼs younger counterpart, the Inter-American Court of Human Rights ( the Inter-American Court ), had already read into the American Convention on Human Rights ( ACHR ) in 1988 in the Velásquez Rodríguez case, 1 in which Héctor Fix-Zamudio sat as the junior ordinary Judge. Whilst the interpretational route taken by each Court in relation to the text of the respective Conventions is not the same, the product of the judicial law-making by the two Courts, namely the content of the duty to investigate, has much in common. Not only does the subject-matter of the present paper thus have a connection with the judicial activity of Judge Héctor Fix-Zamudio, but, more importantly, it provides an illustration of the universality of human rights protection in its essentials despite the undoubted cultural, political and other differences between the European and American continents. I. INTRODUCTION A series of recent judgments of the European Court in cases against Turkey have thrown into relief what can be seen as a positive duty on Contracting States to the European Convention on Human Rights ( ECHR ) to carry out a proper investigation of situations raising serious (*) Deputy Registrar of the European Court of Human Rights. Any views expressed are personal , Series C no. 4. Also reported in 9 Human Rights Law Journal 212 (1988)

2 PAUL MAHONEY human rights issues, although no such duty is expressly stated in any of the ECHRʼs provisions. Whilst some judgments declare a duty to investigate to be an implicit component of one or more of the protected rights and freedoms, in other judgments it is rather to be inferred as a proviso attaching to the rule of exhaustion of domestic remedies in the context of the admissibility conditions. That the procedural rule of exhaustion of domestic remedies as well as the substantive Articles of the ECHR should be capable of providing the platform for such a jurisprudential development, placing a positive duty of human rights protection on public authorities, is in itself noteworthy. The conclusion of the present article is that, on the basis of the case-law as it stands, a duty to investigate may be said to exist in special circumstances in relation to the ECHR rights generally as well as being part and parcel of certain of them. II. THE EXHAUSTION RULE AND THE ECHR In three recent Turkish cases the applicantsʼ grievances were examined on the international level by the European Court -and prior to that by the European Commission of Human Rights ( the European Commission ) 2 - despite the fact that the applicants had made no attempt seek redress before a competent national authority, notably the national courts. The European Courtʼs reasoning in holding that the rule of exhaustion of domestic remedies (as embodied in Article 26 ECHR) 3 had been complied with was not so much that the available remedies themselves were ineffective or inadequate in the sense of being incapable in law or in practice of providing appropriate redress. Rather it was that at the relevant time there existed special circumstances dispensing the applicants from their normal obligation to have recourse to domestic legal channels of redress. The cases of Akdivar and Others(1996), 4 Aksoy(1996) 5 and Mentes and Others(1997) 6 all concerned events in the South-East of Turkey, where, since approximately 1985, serious disturbances have raged between the security forces and the PKK (Workersʼ Party of Kurdistan), claiming thousands of lives among the population and the security forces. The applicants in Akdivar and Mentes were villagers of Kurdish origin who alleged the burning of their houses by the security forces in 1992 and 1993, at a time when their villages were the subject of intense terrorist activity by the PKK. In the Strasbourg proceedings they relied essentially on Article 8 ECHR (the right to respect for oneʼs home) and Article 1 of Protocol No. 1 to the ECHR (the 2 For a description of the enforcement procedure under the ECHR as it now is, see D.J. Harris, M. OʼBoyle and C. Warbrick, Law of the European Convention on Human Rights, chapters (Butteworths, 1995). 3 Art. 26 ECHR reads The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of sixth months from the date on which the final decision was taken. 4 Akdivar and Others v. Turkey, (Grand Chamber), , Reports of Judgments and Decisions ( Reports ) 1996-IV Aksoy v. Turkey (Chamber), , Reports 1996-IV Mentes and Others v. Turkey (Grand Chamber), , Reports

3 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS right of property). The complainant in Aksoy asserted that he had been tortured (in violation of the prohibition in Article 3 ECHR) when being interrogated in custody on suspicion of aiding and abetting the PKK. In none of these cases did the applicant attempt to institute domestic proceedings of any kind. At first sight, therefore, the Turkish State had not been afforded the opportunity to put matters right through its own legal system. The respondent Government not surprisingly pleaded failure to exhaust domestic remedies. They referred in particular to the existence of domestic remedies, available under administrative law and under the ordinary civil law, which would have allowed recovery of compensation. The Strasbourg Court first recalled the basic principles of the rule of exhaustion of domestic remedies as established in its case-law: Under Article 26, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. 7 In Akdivar and Mentes the European Commission, in its decision declaring the application admissible, had found that the applicants had not had at their disposal adequate remedies to deal effectively with their complaints. 8 It pointed to the absence of any examples of court judgments from which it appeared that compensation had been granted or responsible officers had been punished, or at least prosecuted, for destruction of houses in villages. The European Court for its part, rather than declaring the available remedies to be inadequate or ineffective, preferred to analyse the facts from another angle: In addition [to there being no obligation to have recourse to remedies which are inadequate or ineffective], according to the ʻgenerally recognised rules of international lawʼ there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of. 9 7 Aksoy, loc. cit. 52; see also Akdivar, loc. cit., Akdivar admissibility decision, (not published); Mentes admissibility decision, (not published). 9 Akdivar, loc. cit., 67-68; see also Mentes, loc. cit., 57. The European Court spelled out how the burden of proof shifts from applicant to respondent Government in this context: first on the Government to prove the availability of notion

4 PAUL MAHONEY ally effective and adequate remedies; then on the applicant to prove the existence of special circumstances capable of dispensing him/her from recourse to such remedies; and finally on the Government to explain in rebuttal the response of the public authorities in the face of the special circumstances. The Court further stressed that, in reviewing whether the exhaustion rule had been observed, it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant. 10 As to the general context in Akdivar, and Mentes, the European Court first noted that the situation existing in the South-East of Turkey at the relevant time -one of violent confrontation between governmental and terrorist forces- was liable to place obstacles to the proper functioning of the administration of justice, making the pursuit of normal remedies futile. 11 It also cited evidence of the general reluctance of the authorities to admit that illicit behaviour by the security forces of the kind alleged had occurred. 12 Coming to the particular circumstances, it noted the dual lack of any meaningful investigation by the public authorities once they became aware of the applicantsʼ allegations and of any official expression of concern or assistance. The insecurity and vulnerability of the applicantsʼ position following the destruction of their homes was also borne in mind. 13 In the absence of any convincing explanations from the Government in rebuttal, the European Court concluded, the applicants have demonstrated the existence of special circumstances which dispensed them at the time of the events complained of from the obligation to exhaust domestic remedies. 14 The implication is that, having regard to the fact that the events occurred in a region subject to martial law and characterised by severe civil strife and where villagers were often suspected of being in collusion with the PKK, the passivity of the public authorities in the face of applicantsʼ known plight justified the latterʼs lack of confidence in the available judicial remedies. In Aksoy, the case of alleged torture, the European Court did not query the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State. That was not, however, judged to be the critical issue in the case: [The Court] is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him 10 Akdivar, loc. cit., 69; Mentes, loc. cit., 58; see also Aksoy, loc. cit., Akdivar, loc. cit., 70; Mentes, loc. cit., Akdivar, loc. cit., 71; Mentes, loc. cit., Akdivar, loc. cit., 71 in fine; 73 Mentes, loc. cit., Akdivar, loc. cit., 75; Mentes, loc. cit.,

5 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS to exhaust the national channels of redress. 15 On the facts as found by the European Commission and accepted by the European Court, the applicant was visibly suffering from radial paralysis affecting both arms when he was brought before a public prosecutor immediately before his release after spending 14 days in police custody without access to legal or medical assistance. Yet the public prosecutor chose to make no inquiry as to the nature, extent and cause of these visible injuries, despite the duty placed on him under Turkish law to investigate. In these circumstances a lack of confidence on the applicantʼs part in the national legal channels was understandable. As in Akdivar and Mentes the Court therefore concluded that special circumstances existed. 16 A noteworthy proviso was added in Akdivar and Mentes: The Court would emphasise that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that remedies are ineffective in this area of Turkey or that applicants are absolved from the obligation under Article 26 to have normal recourse to the system of remedies which are available and functioning. It can only be in exceptional circumstances such as those which have been shown to exist in the present case that it could accept that applicants address themselves to the Strasbourg institutions for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts. 17 The reasoning of these judgments is that the shortcomings lay essentially in the failure of the responsible national authorities to properly investigate credible allegations or visible indices of misconduct by the security forces and the police. In democratic society -one of the fundamental notions permeating the whole of the ECHR 18 - the public authorities have a duty of trust to the civil population, in particular to provide protection against violence committed by agents of the State. If circumstances are such that it is reasonable for the civil population, or a part of it, no longer to have confidence in the Stateʼs performance of that duty of trust and protection, an unwillingness to have recourse to available legal channels of redress is justifiable. These three judgments do not carry the implication that Turkish law does not afford adequate and effective remedies, or that the Turkish courts lack the necessary independence and impartiality. Once the Turkish State can show that the responsible authorities are acting appropriately in response to the scale and seriousness of the matters complained of, 19 there will be no special circumstances dispensing the applicants from their normal ECHR obligation to exhaust domestic remedies. 15 Aksoy, loc. cit., Aksoy, loc. cit., Akdivar, loc. cit., 77; Mentes, loc. cit., 61. See also Aksoy, loc. cit., 96, in the context of Art. 13 ECHR. 18 Kjeldsen, Busk Madsen and Pedersen v. Denmark (the so-called Danish sex education case) (Chamber), , Series A vol. 23, 53: the ECHR is an instrument designed to maintain and promote the ideals and values of a democratic society. 19 Akdivar, loc. cit., 68 in fine; Mentes, loc. cit., 58 in fine

6 PAUL MAHONEY Nevertheless, the outcome of these three judgments for the functioning of the ECHR enforcement system is in some respects disquieting. The underlying philosophy of the ECHR is that the machinery of protection established by [it] is subsidiary to the national systems safeguarding human rights. 20 As long as the special circumstances of the Stateʼs passivity in South-East Turkey continue, this philosophy has been turned on its head. Whenever the facts are contested, the European Commission will have to send a delegation to hear witnesses or carry out an investigation on the spot in order to perform the task it has under the ECHR to establish the facts. 21 The European Commission is in effect being called on to act as a court of first instance in relation to human rights complaints for this region in Turkey, whereas as an international review body it is simply not equipped to carry out such a function. If the effectiveness and credibility of the international system are not to run the risk of being undermined, such a situation cannot be allowed to continue for a lengthy period of time. The execution of these judgments by Turkey, and the manner in which the other Governments in the ECHR community perform their function of supervising the execution of the judgments, 22 are therefore crucial. General measures, restoring the confidence and trust of the civil population in the responsible authorities, are needed, not ad hoc, retrospective redress limited to the particular cases. By reasoning in terms of special circumstances rather than ineffective or inadequate remedies the European Court is implicitly inviting the Government to take the minimal steps that will allow the correct relationship to be re-established between the national courts, who have the primary responsibility for securing the rights and freedoms secured by the ECHR, and the Strasbourg enforcement bodies, whose power of review should only be subsidiary. The parallel implication -that there is inherent in the ECHR a positive duty incumbent on the responsible national authorities to investigate situations raising issues of serious human rights violations- has been confirmed in cases against Turkey in the context of the analysis of the requirements of certain of the rights secured by the ECHR. III. THE RIGHTS SECURED UNDER THE ECHR Article 13 ECHR requires the availability of an effective remedy before a national authority to complain about alleged violations of the protected rights and freedoms, notwithstanding that the [alleged] violation has been committed by persons acting in an official capacity. It this represents the other side of the coin to the obligation placed on applicants by Article 26 ECHR to exhaust domestic remedies. The applicants in Akdivar, Mentes, and Aksoy argued that Article 13 ECHR had not been complied with in their cases. In Akdivar, the European 20 Akdivar, loc. cit., 65; Aksoy, loc. cit., Art (a) ECHR. 22 Art. 54 ECHR: The judgment of the Court shall be transmitted to the Committee of Ministers [of the Council of Europe] which shall supervise its execution

7 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS Court, unlike the European Commission in its report, 23 did not find it necessary to examine this complaint since it reflected the same or similar elements to those already dealt with in relation to the objection concerning the exhaustion of domestic remedies. 24 In the other two cases however the Court did directly address the issue. In Aksoy the European Court began by noting that what is demanded of the Contracting States by Article 13 ECHR will be greater or smaller depending on the kind of ECHR wrong in issue: Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be ʻeffectiveʼ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. 25 It then turned to the particularities of complaints of torture: [T]he Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired. The nature of the right safeguarded under Article 3 of the Convention has implications for Article 13. Given the fundamental importance of the prohibition of torture and the especially vulnerable position of torture victims, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture. Accordingly, as regards Article 13, where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an ʻeffective remedyʼ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation 23 See of the Commissionʼs report Akdivar, loc. cit., pp Akdivar, loc. cit., Aksoy, loc. cit.,

8 PAUL MAHONEY capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a ʻprompt and impartialʼ investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court's view, such a requirement is implicit in the notion of an ʻeffective remedyʼ under Article Thus, in relation to arguable claims of torture at the hands of agents of the State, the effectiveness of the remedy required by Article 13 ECHR implies not only a negative duty not to hinder its exercise but also a positive duty to carry out a thorough investigation capable of leading to the identification and punishment of those responsible. In the particular circumstances, there had been no investigation whatsoever, the public prosecutor having ignored the visible evidence before him of torture. 27 Similar reasoning was employed in Mentes. It was inferred from the nature and gravity of the interference complained of under Article 8 [ECHR] that Article 13 imposed, without prejudice to any other remedy available under the domestic system, an obligation on the respondent State to carry out a thorough and effective investigation of allegations brought to its attention of deliberate destruction by its agents of the homes and possessions of individuals. 28 An investigation of sorts was carried out following the Strasbourg Commissionʼs communication of the application to the respondent Government, but it was not judged by the Court to be thorough and effective. 29 The case of Aydin v. Turkey (1997), 30 which also had its background the serious disturbances between the security forces and the PKK in the South-East of Turkey, raised complaints of rape and ill-treatment of a seventeen year-old female detainee of Kurdish origin and of failure by the authorities to carry out an investigation into her complaint that she had been tortured in this way. The judgment reiterated the Aksoy analysis of Article 13 as entailing for the Contracting States a positive duty to investigate all credible claims of torture, 31 a duty that has special implications when an allegation of rape is involved: [T]he requirement of a thorough and effective investigation into an allegation of rape in custody at the hands of a State official also implies that the victim be examined, with all appropriate sensitivity, by medical professionals with particular competence in this area 26 Loc. cit., Loc. cit., Mentes, loc. cit., Loc. cit., See also the Commissionʼs similar conclusion: loc. cit., 85 of the Commissionʼs report. 30 Aydin v. Turkey (Grand Chamber), , Reports Loc. cit.,

9 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS and whose independence is not circumscribed by instructions given by the prosecuting authority as to the scope of the examination. 32 On the facts the European Court found no justification for the serious defects and inertia which characterised the crucial phase immediately following receipt of the complaint. Such investigation into her treatment while in custody as was carried out was neither thorough nor effective. The question whether this failure to investigate properly also gave rise to a violation of the prohibition of torture (under Article 3 ECHR) was left open. 33 Whether a positive duty to investigate is a component of such a substantive right was however one of the central issues in the case of Kaya v. Turkey (1998), 34 where the applicant complained of the killing of his brother, a villager of Kurdish origin, in the South-East of Turkey during a clash between the security forces and the PKK. The European Court held, firstly, that there was an insufficient factual and evidentiary basis on which to conclude that the applicantʼs brother was intentionally killed by the security forces in the circumstances alleged. 35 The applicantʼs second contention was that the inadequacy of the investigation into the circumstances of his brotherʼs death also engaged the responsibility of the responsible national authorities under the ECHRʼs right-to-life guarantee (Article 2). The Court upheld that contention. As regards the scope of the obligation imposed on the Contracting States by guarantee, it reiterated the interpretation of Article 2 ECHR enounced some three years earlier in the British Death-on-the Rock case(1995), 36 which concerned the killing in Gibraltar during an arrest operation by members of the British security forces of three IRA members suspected of involvement in a murderous bombing mission: [T]he general legal prohibition of arbitrary killing by agents of the State contained in Article 2 of the Convention would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under Article 2, read in conjunction with the Stateʼs general duty under Article 1 of the Convention to ʻsecure to everyone within their jurisdiction the rights and freedoms defined in [the] Conventionʼ, 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 by, inter alios, agents of the State. 37 The Kaya judgment explained that: 32 Loc. cit., Loc. cit., Kaya v. Turkey (Chamber), , Reports Loc. cit., McCann and Others v. United Kingdom (Grand Chamber), , Series A vol McCann, loc. cit., 161. the right to life inherent in Article 2 of the Convention secures the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of inde

10 PAUL MAHONEY pendent and public scrutiny capable of leading to a determination on whether the force used was or was not justified in a particular set of circumstances. 38 In the Death-on-the Rock case the European Court was satisfied that public inquest proceedings held in Gibraltar, which had lasted nineteen days and during which seventy-nine witnesses had been heard, had permitted a thorough, impartial and careful examination of the circumstances surrounding the killings. 39 In Kaya, when holding that on the facts the rightto-life guarantee had been violated because of the failure to carry out an effective investigation into the killing, the Court did not ignore the difficulties confronting Governments fighting an armed insurrection or engaged in a struggle against a campaign of terrorist violence: The Court notes that loss of life is a tragic and frequent occurrence in view of the security situation in South-East Turkey However, neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into deaths arising out of clashes involving the security forces, more so in cases such as the present where the circumstances are in many respects unclear. 40 The European Court in McCann and Kaya read the right-to-life guarantee (Article 2) in conjunction with Article 1 ECHR, which sets out the Contracting Statesʼ general duty to secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention, in order to deduce from the text of that guarantee a specific duty to investigate the use of lethal force by State agents. It did not derive that specific duty from Article 1 ECHR as such, nor did it hold in Kaya that the failure to investigate gave rise to a violation of Article 1 ECHR. The European Courtʼs approach to Article 1 ECHR and the general duty it embodies was first spelled out 1978 in the inter-state case of Ireland v. United Kingdom: Article 1 is drafted by reference to the provisions contained in Section I and thus comes into operation only when taken in conjunction with them; a violation of Article 1 follows automatically from, but adds nothing to, a breach of those provisions; hitherto, when the Court has found such a breach, it has never held that Article 1 has been violated 41 In Aksoy and then Mentes the European Court interpreted Article 13 ECHR as guaranteeing not only the availability of an effective domestic remedy in relation to all ECHR rights to be exercised on the initiative of complainants but also, in some circumstances or in relation to some rights, the carrying out of a proper investigation by public authorities of their motion whenever serious allegations are brought to their attention. In Aksoy what prompted the placing of such 38 Kaya, loc. cit., McCann, loc. cit., 163. The European Court however found a violation on the ground that the standard of absolute necessity in Art. 2 ECHR had not been met because of what it termed a lack of appropriate care in the control and organisation of the arrest operation : loc. cit., Kaya, loc. cit., (plenary Court), Series A vol. 52,

11 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS a positive duty on the State was the fundamental importance of the prohibition of torture; 42 in Mentes, it was the nature and gravity of the interference complained of under Article 8 ECHR, that is to say the deliberate destruction by State agents of the homes and possessions of individuals. 43 The inference is that for rights that are not of such fundamental importance or where the interference is less grave, the effective remedy required under Article 13 ECHR would not include a positive duty to carry out an investigation. Article 13 ECHR is a procedural right. The only substantive right as such of which a duty to investigate has so far been held by the European Court (in McCann and Kaya) to be an inherent component is the right to life under Article 2 ECHR, 44 the question having been left open in Aydin as regards the prohibition of torture under Article 3 ECHR. The catalogue of rights safeguarded by the ECHR, whether taken as a whole or in relation to specific procedural or substantive rights, has thus not yet been interpreted by the European Court as embodying a general duty to investigate. IV. THE DUTY TO INVESTIGATE UNDER THE ACHR The interpretational approach adopted by the Inter-American Court in the Velásquez Rodríguez case was the more direct one of deriving a general duty to investigate from Article 1(1) ACHR, which sets out the Contracting Statesʼ fundamental obligation to respect and guarantee the rights recognised in the Convention. 45 The Velásquez Rodríguez case, against Honduras, likewise concerned allegations of extremely serious human rights violations, namely a practice of disappearances and violation of the right to life. The Inter-American Court however rooted its reasoning in Article 1 (1) ACHR rather than in the Articles securing particular rights, procedural or substantive: The second obligation of the States Parties [under Article 1 (1) ACHR] is to ʻguaranteeʼ the free and full exercise of the rights recognised by the Convention to every person subject to its jurisdiction. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognised by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. 42 Aksoy, loc. cit., Mentes, loc. cit., A number of cases in which the same issue is raised (e.g. Güleç v. Turkey, Yasa v. Turkey, Ergi v. Turkey, Osman v. United Kingdom) are currently pending before the European Court. 45 Article 1 (1) ACHR reads : The States Parties to this Convention undertake to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition. The Velásquez Rodríguez principles as to a duty to investigate have been confirmed in subsequent case-law, e.g. Godínez Cruz case, v. Honduras, , Series C no. 5, especially at 98; Fairen Garbi and Solís Corrales case, v. Honduras, , Series C no. 6, especially at 159; Caballero Delgado and Santana case, v. Colombia, , especially at

12 PAUL MAHONEY 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, impose the appropriate punishment and ensure the victim adequate compensation. 46 Furthermore, the Inter-American Court did not limit its statement of this duty to investigation of misconduct by State agents or even to what might be termed serious allegations: [I]n principle, any violation of rights recognised by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to respond to [the violation] as required by the Convention. 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 victimʼs full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to guarantee the free and full exercise of those rights to the persons within its jurisdiction. The same is true when it allows private persons or groups to act freely and with impunity to the detriment of the rights recognised by the Convention. 47 Like the European Court in Kaya, the Inter-American Court acknowledged that conditions on the ground may make the carrying out of an investigation a far from easy matter, but it likewise emphasised that such conditions cannot be relied on as simply absolving the responsible authorities from their duty: In certain circumstances, it may be difficult to investigate acts that violate an individualʼs 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 which 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 46 Velásquez Rodríguez, loc. cit., 166, Loc. cit., 172,

13 A DUTY TO INVESTIGATE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS parties are aided in a sense by the government, thereby making the State responsible on the international plane. 48 In the particular case the evidence showed a complete inability of the procedures of the State of Honduras, which were theoretically adequate, to ensure the investigation of the disappearance of Manfredo Velásquez and the fulfillment of its duties to pay compensation and punish those responsible, as set out in Article 1 (1) of the Convention. 49 The Inter-American Court accordingly found violations of Articles 7 (the right to personal liberty), 5 (the right to humane treatment) and 4 (the right to life) read in conjunction with Article 1 (1) ACHR. V. CONCLUSION In both the ECHR and the ACHR systems the duty on public authorities to investigate human rights violations is a product of interpretation by the judges. For the European Court the jurisprudential development has been piecemeal, accomplished partly within the context of the rule of exhaustion of domestic remedies as a pre-condition for governments in order to benefit from the rule and partly through interpretation of the right to an effective domestic remedy and the right to life; and the factors prompting the existence of a duty to investigate are as yet circumscribed: to special circumstances, to serious allegations, to rights of fundamental importance, to grave interferences and to misconduct or infliction of harm by State agents. The formulation of the Inter-American Court is on the other hand much broader, perhaps even too broad if one accepts that some violations may be technical (for example, under the due-process clause) or not overly serious in their consequences: the State is obligated to investigate every situation involving a violation of the rights protected by the Convention, even if the initial source of the violation may be an act of a private party. The preferred interpretational approach of the European Court is to restrict its reasoning to what is necessary for the decision in the particular case and to avoid broad declarations of principle. This makes for a policy of small incremental changes to the jurisprudence, of proceeding step by step in judicial law-making. Hence the somewhat disparate picture of the duty to investigate that one finds in the case-law of the European Court, as compared with the more comprehensive and unified analysis of the Inter-American Court. This then is the difference that one finds evident on the surface of the respective case-laws. Yet if one examines the philosophy underlying these apparently different approaches, it can be seen to be a shared one. The duty on public authorities to investigate human right violations has been identified by both Courts as inherent in the treaty obligations undertaken by the Contracting States since it is essential for securing effective protection of human rights within the national legal order as required by the treaty. Talking in terms of the common-law tort of 48 Loc. cit., Loc. cit.,

14 PAUL MAHONEY negligence, one would say that it is part of a wider duty assumed by States under human rights treaties not only to take care to observe the protected rights through the action of their agents, but also to see to it that care is taken within the domestic legal order as a whole: the duty to organise the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights, as it was put in the Velásquez Rodríguez judgment. 50 Such reasoning applies no less to the ECHR and to the nature of the undertaking assumed by the Contracting States. Furthermore, the content of the duty, once found to exist, is couched in broadly similar terms in the case-law of the two Courts. The tradition of judicial self-restraint of the European Court doubtless explains its cautions, piecemeal approach. However, since the underlying philosophy and principles are shared ones common to both systems, it would not be surprising if, with further case-law, the European Court were to consolidate the disparate strands of its jurisprudence and to move progressively towards a more comprehensive doctrine of a duty to investigate, along the lines already traced by the Inter-American Court. To return to the opening comment of this paper: although the routes travelled may have been different, the end destination has been substantially the same and this, one would hope is, true of the work of the two Courts in general. 50 Loc. cit.,