Table of contents | ||
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I. | Introduction | 122 |
II. | The Evolution of the Right to the Truth in the Case Law of the Inter-American Court of Human Rights | 126 |
III. | The Evolution Of this Right in Other International Organs and Instruments and Domestic Legal Systems | 131 |
IV. | Conclusion | 136 |
I. Introduction
1. Unfortunately, the forced disappearance of persons is one of the egregious violations of human rights examined in the case law of the Inter-American Court of Human Rights (hereinafter "the Court" or "the Inter-American Court"). Its first contentious case, in 1988, dealt with the forced disappearance of Manfredo Velásquez Rodríguez in Honduras. Since then, of the 182 contentious cases that it has decided to date, the Court has heard 42 cases concerning forced disappearances.1 Following this first case, the Inter-American Court has emphasized that the practice of forced disappearance violates numerous provisions of the Convention and "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."2
2. It is within the context of case law on forced disappearances that the Court has affirmed the existence of a "right of the victim's family to know his fate and, if appropriate, where his remains are located, [which] represents a fair expectation that the State must satisfy with the means available to it"3 since its first contentious case. The Court has also indicated that withholding the truth about the fate of a victim of a forced disappearance entails a form of cruel and inhuman treatment for the nearest relatives,4 and that this violation of personal integrity may be linked to a violation of their right to know the truth.5 The members of the disappeared person's family have the right to know the facts being investigated and that those responsible will be prosecuted and punished, as appropriate.6
3. This first ruling formed the basis for what is known today as "the right to the truth" or "the right to know the truth". Since then, the Inter-American Court has gradually begun to recognize its existence, as well as its content and its two dimensions of application (individual and collective).
4. Thus, the Inter-American Court has considered that the relatives of victims of gross human rights violations and society as a whole have the right to know the truth, and must therefore be informed of what happened.7 In Inter-American Court case law, the right to know the truth has been considered both a right that States must respect and ensure, and a measure of reparation that States are obligated to comply with. This right has also been recognized in several United Nations instruments and by the General Assembly of the Organization of American States.8 In 2006, pursuant to a resolution of the Commission on Human Rights, the United Nations High Commissioner for Human Rights prepared a study on the right to the truth. In this study, the High Commissioner concluded that the right to the truth is "an inalienable and autonomous right," "closely linked to the State's duty to protect and guarantee human rights and to the State's obligation to conduct effective investigations into gross human rights violations and serious violations of humanitarian law and to guarantee effective remedies and reparation;" but also, "closely linked with other rights, such as the right to an effective remedy, the right to legal and judicial protection, the right to family life, the right to an effective investigation, the right to a hearing by a competent, independent, and impartial tribunal, the right to obtain reparation, the right to be free from torture and ill-treatment, and the right to seek and impart information."9
5. Nevertheless, as indicated in paragraph 510 of the Judgment, in most cases, "the Court has considered that the right to the truth 'is subsumed in the right of the victim or the members of his family to obtain the elucidation of the events that violated the victim's rights and the corresponding responsibilities from the competent State organs through the investigation and prosecution established in Articles 8 and 25(1) of the Convention.'" On only one occasion, that of the case of Gomes Lund et al. (Guerrilla de Araguaia) v. Brazil, has the Court expressly declared a violation of the right to the truth as an autonomous right, which meant a violation of Article 13 of the American Convention in relation to Articles 1(1), 8(1) and 25 of this international treaty.10
6. I present this concurring opinion because I consider that in light of the present stage of Inter-American Court case law, and the advances made in international human rights law and in the laws and case law of various States Parties to the Convention concerning the right to know the truth, in this case the Court could have declared an autonomous violation of this right (as it did previously in the case of Gomes Lund et al. v. Brazil) rather than subsuming it in Articles 8 and 25, as it did in this judgment. Bearing in mind that 29 years have passed since the events took place and the relatives of most of those who disappeared have not received any assurance of the truth as to what happened, in this Judgment, the Inter-American Court stated that "the State has been unable to provide a definitive and official version of what happened to the presumed victims," despite the investigations conducted and the measures undertaken.11 Hence, I consider that the Court case law can evolve in such a way that strengthens the full recognition of the right to know the truth, acknowledges the autonomy of this right, and establishes its content, meaning and scope with increased precision. For greater clarity, this opinion is divided into the following sections: (i) the evolution of the right to the truth in the case law of the Inter-American Court (paras. 7-15); (ii) the evolution of this right in other international organs and instruments and domestic legal systems (paras. 1622), and (iii) a conclusion (paras. 23-29).
II. The Evolution of the Right to the Truth in the Case Law of the Inter-American Court of Human Rights
1. The case of Castillo Páez v. Peru in 1997 marks the first time the Inter-American Commission brought before the Court the alleged violation of the right to the. The Court indicated that this "refer[red] to the formulation of a right that does not exist in the American Convention, although it may correspond to a concept that is being developed in doctrine and case law, which has already been disposed of in this Case through the Court's decision to establish Peru's obligation to investigate the events that produced the violations of the American Convention."12 Subsequently, in the case of Bámaca Vélasquez v. Guatemala in 2000, the Court recognized that the State's actions prevented the victims' next of kin from knowing the truth about the fate of the victim. However, it clarified that "the right to the truth [was] 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."13
2. The following year, the State acknowledged the violation of the right to the truth in the case of Barrios Altos v. Peru.14 Meanwhile, the Commission correlated the right to the truth not only to Articles 8 and 25 of the American Convention, but also to Article 13, as regards the right to seek and receive information.15 The Court considered that the surviving victims, their families and the families of the victims who died were prevented from knowing the truth about the events that took place in Barrios Altos, but evoked the fact that this right is subsumed in the right of the victim or his relatives to obtain the elucidation of the illegal acts and the corresponding responsibilities from the State's competent organs, through the right to investigation and prosecution established in Articles 8 and 25 of the Convention.16
3. Inter-American case law reveals that the Court began to link the right to know the truth (referring to it as the "right to know what happened") to the State's obligation to investigate human rights violations, to punish those responsible, and to fight against impunity.17 This idea was reinforced in the judgment on reparations and costs in the case of Bámaca Vélasquez v. Guatemala, which cited the work done by the United Nations on everyone's right to the truth, and recognized that this is also a right of the members of the victim's family and of society as a whole.19 In addition, the judgment indicated that this right leads to the victims' expectation for reparation from the State.19
4. In 2005 and 2006, in the cases of Blanco Romero et al. v. Venezuela, Servellón García et al. v. Honduras, the Pueblo Bello Massacre v. Colombia and Montero Aranguren et al. (Retén de Catia) v. Venezuela, the Court held that the right to the truth was not "a separate right enshrined in Articles 8, 13, 25 and 1(1) of the [American] Convention," but rather that it "was subsumed in the right of the victim or his relatives to obtain the elucidation of the wrongful acts and the corresponding responsibilities from the State's competent organs, through investigation and prosecution."20 Nevertheless, the Court reiterated that the next of kin of victims of gross human rights violations have the right to know the truth.21
5. In the other cases of possible violations of the right to the truth have been alleged and examined, the Court has not expressly indicated that it does not consider this right to be autonomous. However, it has stated that it considers this right subsumed in the right of the victim or his relatives to obtain the elucidation of the wrongful acts and the corresponding responsibilities from the State's competent organs through investigation and prosecution when analyzing a violation of Articles 8 and 25,22 or under the obligation to investigate when ordered as a form of reparation.23
6. In 2007, in the case of Zambrano Vélez et al. v. Ecuador, the Court recognized the principle of complementarity between the extrajudicial truth resulting from a truth commission, and the judicial truth arising from a judicial ruling or judgment. In this decision, the Court established that "a Truth Commission [...] can contribute to build and safeguard historical memory, to clarify the events and to determine institutional, social and political responsibilities in certain periods of time of a society," but these "historical truths [...] should not be understood as a substitute to the obligation of the State to ensure the judicial determination of individual and state responsibilities through the corresponding jurisdictional means, or as a substitute to the determination, by this Court, of any international responsibility." The Inter-American Court explicitly established that these are "determinations of the truth which are complementary between themselves, since they all have their own meaning and scope, as well as particular potentialities and limits, which depend on the context in which they take place and on the cases and particular circumstances objects of their analysis."24 The Court has applied these criteria in later cases.25
7. In the case of Anzualdo Castro v. Peru in 2009, the Court had to decide on a specific request to declare an autonomous violation of the right to the truth. According to the representatives and the Commission that presented this request, this right was related to those contained in Articles 1(1), 8, 13 and 25 of the American Convention.26 In this regard, the Inter-American Court reiterated that in cases of forced disappearance, the relatives of the disappeared person "are entitled to have the facts investigated and the responsible are prosecuted and punished. The Court has recognized that the right to the truth of the relatives of victims of serious human rights violations is framed within the right of access to justice. Furthermore, the Court has based the obligation to investigate into the facts as a means for redress, on the need to repair the violation of the right to know the truth in the specific case." In addition, the Court has established that "the right to know the truth represents a necessary effect for it is important that a society knows the truth about the facts of serious human rights violations[,]" "by means of the obligation to investigate human rights violations and, on the other hand, by public dissemination of the results of the criminal and investigative procedures," as well as by the establishment of "Truth Commissions, which can contribute to build and safeguard historical memory, to clarify the events and to determine institutional, social and political responsibilities in certain periods of time of a society." Based on the above, the Court concluded that, owing to the passage of time "the whole truth about the facts or his whereabouts [of the victim] have not been determined. Since the moment of his disappearance, State agents have adopted measures to hide the truth of what happened [...]."
"The domestic criminal proceedings had not provided effective recourses to determine the fate or whereabouts of the victim, or to guarantee the right to access justice and know the truth, by means of the investigation and possible punishment of the responsible, and the full reparation of the consequences that resulted from the violations." This constituted a violation of the rights recognized in Articles 8(1) and 25(1) of the American Convention.27 The Court also considered that the case did not reveal specific facts that could result in a violation of Article 13 of the Convention.28 Thus, this establishes the criterion to define a violation of this article as requiring specific circumstances and facts that violate the right to seek and receive information, and consequently, the right to the truth, and not only the right to an effective investigation.29
8. Along the same lines, in the case of Gomes Lund et al. (Guerrilla de Araguaia) v. Brazil in 2010, the Inter-American Court established that "all persons, including the next of kin of victims of serious human rights violations, have the right to know the truth."30 However, contrary to its case law up until that time, the Court declared it a violation of the right to the truth.31 The Court considered that the right to the truth was related to access to justice, as well as to the right to seek and receive information recognized in Article 13 of the American Convention. This conclusion was reached due to the impossibility of the relatives of victims of forced disappearance to obtain information on the military operations during which their loved ones disappeared by means of judicial actions regarding access to information.
9. In 2012, in the case of Gudiel Alvarez et al. ("Diario Militar") v. Guatemala, the Court examined the right to the truth within the context of the right of the next of kin to personal integrity. In this case, the violation of the right to know the truth and the right of access to information was alleged, owing to the discovery of a Guatemalan military intelligence document known as the "Diario Militar," which contained information on the disappearance of the victims, and of the Historical Archive of the National Police, both of which had been concealed from the Historical Clarification Commission (CEH) despite the Commission's numerous requests to the military and police authorities for information.32 In that case, the Court stressed the fact that several of the family members were not allowed to know the historical truth about what happened to their loved ones through the CEH owing to the State authorities' refusal to hand over information.33
III. The Evolution of this Right in Other International Organs and Instruments and Domestic Legal Systems
1. As mentioned previously, various resolutions of the United Nations and the Organization of American States haves recognized the right to the truth.
2. In particular, the United Nations has recognized the existence of the right to the truth in declarations made by the General Assembly,34 the Secretary-General35 and the Security Council,36 as well as in numerous resolutions and reports prepared and published by UN agencies dealing in human rights.37 Thus, the United Nations High Commissioner on Human Rights indicated that the right to the truth was an autonomous, inalienable and independent right, because "the truth is fundamental to the inherent dignity of the human person." He also asserted that:
The right to the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them. In cases of enforced disappearance, missing persons, children abducted or born during the captivity of a mother subjected to enforced disappearance, secret executions and secret burial place, the right to the truth also has a special dimension: to know the fate and whereabouts of the victim.38
3. The International Committee of the Red Cross (ICRC) has asserted that the right to the truth is a rule of international customary law applicable in both international and internal armed conflicts, so that each party to the conflict must take all feasible measures to account for the persons reported missing as a result of armed conflict and must provide their family members with any information it may have on their fate.39
4. Declarations have also been issued on the right to the truth at the regional level. At the 28th Summit of Heads of State held in Asunción on June 20, 2005, the States members and associated States of the Common Market of the South (MERCOSUR) adopted a declaration in which they reaffirmed the right to the truth of the victims of human rights violations and their families.40 Meanwhile, the European Union has ruled on the right to the truth in its resolutions on missing persons,41 the disarmament and demobilization of paramilitary groups, and within the context of peace negotiations.42
5. Lastly, the General Assembly of the Organization of American States (OAS) has "recognize[d] the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promoting and protecting human rights," in numerous resolutions adopted from 2006 to date, specifically on the right to the truth.43
6. In addition, the International Convention for the Protection of All Persons from Enforced Disappearance explicitly recognizes "the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person."44 In addition, the Updated Set of principles for the protection and promotion of human rights through action to combat impunity recognizes and develops "the inalienable right to know the truth," as regards both the victims and their families, and society. The principles expressly establish that "[i]rrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims' fate."45
7. Furthermore, the right to the truth has been recognized in the domestic law, constitutional courts and jurisdictional organs of various States Parties to the Convention.46 Of particular importance for this case is the fact that, at least as of 2002, the Colombian Constitutional Court has indicated that in cases of forced disappearance "interest exists in knowing the truth and establishing individual responsibilities,"47 and that the right to the truth surrounding the offense of forced disappearance signifies the right to know the final fate of the disappeared person.48
IV Conclusion
1. The evolution of Inter-American Court case law and the advances made by international bodies and instruments, as well as those in domestic legislation, clearly reveal that the right to the truth is now recognized as an autonomous and independent right. Although this right is not expressly included in the American Convention, it does not prevent the Inter-American Court from examining any alleged violation of this right, and declaring that it has been violated. According to Article 29(c) of the Pact of San José, no provision of the Convention can be interpeted as "precluding other rights or guarantees that are inherent in the human personality, or derived from representative democracy as a form of government."49 In this regard, it should be underscored that, as indicated in the preceding paragraph, the right to the truth has been recognized in Colombian law and is considered part of the right to reparation, to the truth and to justice, as a necessary corollary to achieve peace.
2. Nevertheless, the author of this opinion considers that although the right to the truth is mainly related to the right of access to justice derived from Articles 8 and 25 of the Convention, it should not necessarily remain subsumed in the examination of the other violations of the rights to judicial guarantees and judicial protection that were declared in a case50 because this understanding encourages the distortion of the essence and intrinsic content of each right.51 Even though the right to the truth is fundamentally contained in the right of access to justice,52 the right to the truth may affect different rights recognized in the American Convention53 depending on the particular context and circumstances of the case, as the Court acknowledged in the case of Gomes Lund et al. (Guerrilla de Araguaia) v. Brazil concerning the right of access to information (Article 13 of the Convention), and in the case of Gudiel Alvarez et al. ("Diario Militar") v. Guatemala concerning the right to personal integrity (Article 5 of the Convention).
3. Based on the above and in view of the evolutive nature of Inter-American case law on this issue and the advances made by international bodies and instruments (including the OAS General Assembly54) and in domestic legal systems (as in the case of Colombia),55 I consider that the Court should reconsider its criteria regarding the fact that the right to the truth is necessarily "subsumed" in the victims' and their families' right to have the competent State bodies clarify the violations and the corresponding responsibilities in order to proceed, when appropriate, to declare its violation as an autonomous and independent right. This would clarify the content, dimensions and true scope of the right to know the truth.
4. In the instant case, after 29 years, the victims are still waiting for the events to be clarified. The State still questions the forced disappearance of most of the victims. Despite the creation of a truth commission to investigate the events, and several judicial decisions, as indicated in paragraph 510 of the Judgment,56 there is still no official version of what happened, and both the families of the disappeared victims, and the victims who survived the events, have been constantly faced with a denial of these events ever taking place. In addition, in the judgment, "the Court also underline[d] that, since the events occurred, a series of actions have been revealed that have facilitated the concealment of what happened and prevented or delayed its clarification by the judicial authorities and the prosecutors."57
5. In addition, it should be stressed that in the context of forced disappearances, the right to know the fate of the disappeared victim is an essential component of the right to the truth. The uncertainty about what happened to their loved ones is one of the main causes of mental and moral suffering of the relatives of the disappeared victims (supra para. 2). In this case, this uncertainty has been partially resolved for only the families of Ana Rosa Castiblanco Torres and Carlos Horacio Urán Rojas 29 years after the events. Although some investigations have been conducted recently, the Court concluded that, for many years the State had failed to carry out a genuine, coordinated and systematic investigation to discover the whereabouts of those who disappeared and clarify what happened.58
6. It should not be forgotten that the Judgment expressly establishes that "the State acknowledges its responsibility by omission for the failure to investigate these facts"59 and that "despite the different investigations and judicial proceedings that have been opened, the State has been unable to provide a final and official version of what happened to the presumed_victims 29 years ago, and has not provided adequate information to disprove the different indications that have emerged concerning the forced disappearance of most of the victims."60
7. Consequently, the author of this opinion considers that, in this judgment, the Court could have declared the autonomous violation of the right to know the truth -as it did previously in the case of Gomes Lund et al-. (Guerilla de Araguaia) v. Brazil. 61I believe that this right can be validly violated autonomously and does not need to be subsumed in the violations of the rights contained in Articles 8 and 25 of the American Convention as declared in the judgment. The right to know the truth is now an autonomous right recognized by different international bodies and instruments and in domestic legal systems. In the future, this may lead the Inter-American Court to consider the violation of this right independently, which would in turn contribute to clarifying its content and scope.