I. INTRODUCTION
This article undertakes a comparative legal analysis of the ‘right to truth’ in international human rights jurisprudence, with a particular focus on the under-explored but crucial question of the scope of an emerging legal duty to find the truth about historical human rights abuses in periods of political transition.
The search for the truth about the past is particularly significant in ‘transitional’ societies—those transitioning from conflict to peace, from totalitarianism to democracy. The UN Secretary General has stressed the importance of truth within the framework of transitional justice,Footnote 1 and the significance of ‘historical justice’ is well-recognized in the transitional justice literature.Footnote 2 Ruti Teitel, for example, observed that transitional history making is endowed with, ‘real transformative potential’.Footnote 3 The Inter-American Commission on Human Rights has stated that, ‘reaching at a complete, factual and impartial truth – reconstructed, shared and legitimized by society – is a fundamental factor in restoring citizens’ confidence in the institutions of the State’.Footnote 4
Yet, although the importance of knowing the truth about human rights violations of the past is widely recognized, this can be distinguished from the emergence of a legal ‘right’ to truth per se.Footnote 5 Indeed the first part of this article demonstrates that an international legal ‘right to truth’ remains elusive.Footnote 6 In the narrower realm of international human rights jurisprudence,Footnote 7 however, there have been tangible developments. These developments intersect with emerging standards on countering impunity and the promotion of victims’ rights to a remedy for gross and systematic human rights violations—although it is readily conceded that truth-finding via criminal prosecution and public judicial record is far from the only means of achieving historical justice.Footnote 8
We shall see that the right to truth in international human rights law is closely connectedFootnote 9 to the duties to investigate or to prosecute, identified for example in the pioneering work of Naomi Roht-Arriaza,Footnote 10 Diane OrentlicherFootnote 11 and Juan Méndez,Footnote 12 (and later enshrined in the various soft-law instruments discussed below). However, there are distinct challenges to imposing the duty to investigate and prosecute on successor regimes, and therefore to using such duties to gain access to the truth about pre-transition human rights abuses. These challenges arise from limits upon the temporal jurisdiction of international human rights courts.Footnote 13
When States only ratify human rights treatiesFootnote 14 after the restoration of peace or democracy, complaints regarding pre-transition human rights abuses will ordinarily be inadmissible ratione temporis. This is rooted in the general principle of the non-retroactivity of treaties,Footnote 15 and the way in which human rights courts and tribunals established by treaty have adjudicated upon disputes about their temporal jurisdiction.Footnote 16 Both are connected to the extent of each State party's consent to be bound by the treaty in question.
In the jurisprudence, the date upon which the relevant human rights treaty or its enforcement mechanism becomes effective for a particular State party is often referred to as the ‘crucial’ or ‘critical’ date.Footnote 17 The substantial inconsistency between human rights regimes on the extent to which their enforcement bodies have temporal jurisdiction over human rights violations rooted in events before the ‘crucial date’ has not yet been systematically investigated.Footnote 18 It is shown here that despite the close association between truth-seeking and transitional justice, the capacity of international human rights law to vindicate the right to truth in respect of even notorious events before the ‘crucial date’ is worryingly uncertain.
This article examines the way in which the right to truth is both explicitly and implicitly vindicated in the global jurisprudence of the ICCPR Human Rights Committee,Footnote 19 and the regional jurisprudence of the Inter-American Court of Human RightsFootnote 20 and European Court of Human RightsFootnote 21 (the conclusion also addresses the less voluminous African regional jurisprudence).Footnote 22 The general approach to the right to truth in each human rights regime is identified and analysed, followed by critical discussion of each regime's ‘transitional jurisprudence’Footnote 23 on the admissibility ratione temporis of complaints seeking the truth about events before the ‘crucial date’. The conclusion proposes a cohesive approach to the right to truth in transitional jurisprudence, rooted in the ‘underlying values’ of each human rights treaty. Thus, this piece is intended to make a contribution both to the vindication of victims’ and their next of kins’ rights to know about pre-transition human rights abuses, as well as to the developing literature on the transitional jurisprudence of human rights enforcement bodies.
II. THE ELUSIVENESS OF THE RIGHT TO TRUTH IN INTERNATIONAL LAW
This section identifies that whilst there is a plethora of references to the right to truth in international soft law, its status as a legal right in public international law is moot.
The UN's Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity devote considerable attention to ‘The right to know’ and refer to the right to truth as being ‘imprescriptible’.Footnote 24 Likewise the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian LawFootnote 25 state that victims and their representatives should be able to ‘learn the truth’ about gross violations of international human rights law and serious violations of international humanitarian law. The Basic Principles and Guidelines state in paragraph 22(b) that the verification of facts and full public disclosure of the truth is a necessary part of reparation for the types of abuse covered by them.Footnote 26
Several UN bodies, including the former Human Rights Commission, Human Rights Council and the General Assembly, have adopted resolutions stressing the importance of the right to truth in countering impunity and promoting human rights.Footnote 27 In 2010 the General Assembly even proclaimed the 24th March as the ‘International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims.’Footnote 28 These resolutions and soft-law instrumentsFootnote 29 have been supported in practice by, amongst other things, the UN Human Rights Council's decision in 2011 to appoint a Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.Footnote 30
There is thus clearly a groundswell of international opinion in favour of recognizing a right to truth,Footnote 31 but this does not translate straightforwardly into international legal rights and duties. Historical accounting may be achieved through a range of legal and administrative measures, including truth commissionsFootnote 32 and lustration,Footnote 33 as well as through formal investigation,Footnote 34 but not all are underpinned by a claimed ‘right’ to them. There is a thus a certain conceptual elusiveness—or expansiveness, even, to the right to truth, not least of all owing to it often being said to have both individual and collective dimensions.Footnote 35 There may be vastly differing, and conflicting, techniques to vindicate each dimension. Indeed, this was precisely the situation faced by the South African Constitutional Court in 1996 when the family of murdered activist Steve Biko, supported by the Azanian Peoples Organization (AZAPO), argued that the power of the South African Truth and Reconciliation Commission to grant amnesties breached their right to have ‘justiciable disputes settled by a court of law’.Footnote 36
There is also a certain amount of legal elusiveness about the right to truth. The 2006 UN Human Rights Commission ‘Study on the right to truth’ claimed to have found that the right to truth was an, ‘inalienable and autonomous right’,Footnote 37 but its analysis conflated the historical and the legal bases of the rightFootnote 38 and failed to engage with the recognized sources of public international law at all.Footnote 39 This is important because treaty law in this field is scant: whilst the First Additional Protocol to the 1949 Geneva Conventions states that the implementation of the rules on missing persons and the remains of the deceased should be, ‘prompted mainly by the right of families to know the fate of their relatives’,Footnote 40 a comprehensive right to truth would need to address circumstances outside of an international armed conflict;Footnote 41 and whilst the International Convention for the Protection of All Persons from Enforced Disappearance enshrines that each victim has the right to know the truth regarding the circumstances of the disappearances,Footnote 42 it is far from universally ratified,Footnote 43 and not all claims for truth arise from disappearances.Footnote 44
It has been suggested, in the alternative, that the right to truth could be founded in customary international law,Footnote 45 in part based upon the existence of ‘concurring jurisprudence’ in international human rights law.Footnote 46 However as hinted above and detailed below, the existing human rights jurisprudence is not entirely ‘concurring’—especially in respect of temporal jurisdiction over pre-transition human rights violations. Moreover there are well-known disagreements on the formation and identification of customary international law.Footnote 47 Yasmin Naqvi's comprehensive 2006 analysis of the right to truth in international lawFootnote 48 applied Theodore Meron's generous approach to the formation of customary international human rights law,Footnote 49 but still found that the right, ‘stands somewhere on the threshold of a legal norm and a narrative device … [S]omewhere above a good argument and somewhere below a clear legal rule’. In legal terms, Naqvi's suggestion that the right to truth might be a general principle of lawFootnote 50 is probably still the strongest claim that could be made for it in general public international law.Footnote 51
International human rights jurisprudence may sidestep at least some of the elusiveness of a free-standing public international legal right to truth. Such jurisprudence derives from a series of self-contained treaty regimes with their own arbiters employing their own rules of interpretation, and where judicial activism may result in the discovery and acceptance of new principles—including on the extent of the arbiters’ own temporal jurisdiction.Footnote 52 There are certainly questions about the balance between textualist and evolutive (‘living instrument’)Footnote 53 approaches,Footnote 54 but these are capable of being resolved (albeit sometimes over some time)Footnote 55 by the relevant enforcement bodies. Whilst the regimes are self-contained they may provide inspiration to each other through judicial collaboration and trans-judicial dialogue, both in the development of substantive standards as well as forms of legal reasoning.Footnote 56 Such dialogue may serve to guard against excessive legal fragmentation,Footnote 57 and the resulting broadly supranational law of human rights may fairly be described as cosmopolitan in nature.Footnote 58
In the next sections we shall examine the extent to which global and regional human rights enforcement bodies have, in both their ‘general’ and ‘transitional’ jurisprudence, developed functionally equivalent approaches to the right to truth. It is shown that although there is much in common between the different human rights regimes, there are significant anomalies. The article will not address the related but distinct issue of human rights enforcement bodies being called upon, expressly or impliedly, to settle major debates about the past (such as the lawfulness of the Soviet Union annexing the Baltic States in 1940;Footnote 59 or whether the persecution of Armenians in 1915 amounted to genocide).Footnote 60
III. THE RIGHT TO TRUTH AT THE ICCPR HUMAN RIGHTS COMMITTEE
A. General Approach to the Right to Truth
In its 1983 View in the case of Quinteros v Uruguay the ICCPR Human Rights Committee (HRC) not only found violations of the initial victim's rights in respect of her disappearance and presumed death, but also in respect of her mother stated that,
The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7 [ICCPR].Footnote 61
This is the earliest articulation of a right to the truth (or right to know) in international human rights jurisprudence,Footnote 62 and it is anchored in the right to freedom from torture, cruel or inhuman treatment. This finding has been influential upon the development of the Inter-AmericanFootnote 63 and EuropeanFootnote 64 jurisprudence in respect of their equivalent rights, discussed further below. It also formed a central part of the basis of Orentlicher's interpretation of the HRC's jurisprudence, under which she found that, ‘prosecution leading to an appropriate sanction is generally required when a disappearance, an extra-legal execution, or torture is credibly alleged’.Footnote 65 Thus, the Quinteros View is an important step towards demonstrating the connection between State obligations to investigate and prosecute, and an individual right to truth. The HRC has continued to show the importance of Article 7 ICCPR to the next of kin in cases of enforced disappearances, although not always expressly invoking the right to truth or the right to know.Footnote 66
In the disappearance case of Saadoun v Algeria the HRC also examined the Article 2(3) ICCPR right to a remedy. Following a 2005 referendum the Algerian authorities had promulgated a ‘Charter for Peace and National Reconciliation’, which prohibited, with the threat of imprisonment, the initiation of legal proceedings in respect of the ‘national tragedy’, viz. the 1991 to 1999 Algerian civil war that provided the backdrop to the disappearance at issue.Footnote 67 The State had argued that the Charter, which did offer a route to compensation in relation to presumed deaths connected to the ‘national tragedy’,Footnote 68 reflected a, ‘desire to avoid confrontation in the courts, media outpourings and political score-settling’.Footnote 69 Whatever the merits of this approach, the failure to conduct a thorough and effective investigation was found to constitute a violation of Article 2(3) ICCPR.Footnote 70 This is significant because imposing investigatory duties in this way also assists in vindicating the right to truth for the next of kin: in fact within the Inter-American system the right to truth has been expressly ‘subsumed’ within the right to a remedy, as we shall see below.Footnote 71
The right to a remedy in the ICCPR has some important limitations to it. Whilst, as seen in the Saadoun View immediately above, failure by a State party to investigate allegations of human rights violations can in and of itself give rise to a separate breach of the Covenant,Footnote 72 the Article 2 ICCPR right to a remedy may only be raised in respect of an already established violation of another substantive right within the HRC's jurisdiction.Footnote 73 This is significant in relation to the discussion of admissibility ratione temporis below.
It is worth noting that the HRC also usually invokes Article 2(3) ICCPR towards the end of the text of its Views (whether or not it has found a separate violation of it) as the foundation for the State's obligation to provide a remedy for whichever other rights have been violated.Footnote 74 This has parallels with the reparations phase of cases at the Inter-American Court, based on Article 63(1) of the American Convention on Human Rights, in which the right to truth expressly plays a significant role.Footnote 75 Likewise it is comparable to the remedial obligations emanating from Article 46 of the European Convention on Human Rights, under which Contracting Parties undertake to abide by the final judgment of the European Court in respect of cases to which they are party. These provisions are discussed further below.
This section has shown that the right to truth has two main dimensions in the HRC's general jurisprudence, expressly underpinning findings on inhuman treatment of the next of kin; and implicitly doing so in relation to the right to a remedy.
B. Admissibility ratione temporis and Transitional Jurisprudence
The HRC has conclusively held that, where there are no issues of admissibility ratione temporis, successor regimes may be held responsible for the actions of their totalitarian predecessors. For example in the case of Hugo Rodriguez v Uruguay, decided in 1994 and concerning events commencing in 1983, the HRC found that it, ‘could not agree with the State party that it has no obligation to investigate violations of Covenant rights by a prior regime’.Footnote 76 Uruguay had ratified the ICCPR and its First Optional Protocol in 1970, and so the HRC clearly had temporal jurisdiction.
The Hugo Rodriguez case did not address the right to truth expressly, but it and similar cases demonstrate that successor regimes may have significant investigatory duties under the Covenant (in which the right to truth may be subsumed) when admissibility ratione temporis is not an issue. In cases where the HRC has addressed admissibility ratione temporis the right to a remedy will not be available for pre-ratification human rights abuses that are otherwise outside the temporal jurisdiction of the HRC, which is in sharp contrast to the Inter-American jurisprudence discussed below. This can be seen in the 1990 admissibility decision in S.E. v Argentina,Footnote 77 concerning a 1976 disappearance during the so-called ‘dirty war’. The Covenant and its Optional Protocol only entered into force for Argentina in November 1986Footnote 78 so there were no substantive violations to which the right to a remedy could be attached, and the communication was declared inadmissible.Footnote 79
The S.E. decision is undoubtedly harsh. In addition to invoking Article 2, the author of the complaint also protested that the disappearance of her children was never fully investigated.Footnote 80 Well before the S.E. decision the HRC had held that it is empowered to consider a communication when the measures complained of, although they occurred before the crucial date, continued to have effects which themselves constitute a violation of the Covenant after that date.Footnote 81 Even in the S.E. decision the HRC reminded Argentina that, ‘it is under an obligation, in respect of violations occurring or continuing after the entry into force of the Covenant, thoroughly to investigate alleged violations and to provide remedies where applicable, for victims or their dependants’.Footnote 82 Given that the author's children were still missing it seems strange that there were no continuing violations in this case.
The HRC jurisprudence on this point is, however, not altogether consistent, and in other cases it has accepted that a disappearance can have continuing effects. In Sarma v Sri Lanka, decided on the merits in 2003, the HRC examined a complaint involving the author and his son's removal from their home, by the military, in 1990, after which the son remained missing.Footnote 83 The Optional Protocol only entered into effect for Sri Lanka in 1997,Footnote 84 and Sri Lanka had also entered a declaration restricting the HRC's competence to events following the entry into force of the Optional Protocol. Despite this, for the purposes of admissibility, the HRC accepted that the author's allegations may have contained violations that ‘occurred or continued’ after the Optional Protocol entered into force for Sri Lanka.Footnote 85 On the merits the HRC found that the son's apparently continuing detention revealed a violation of Article 9 ICCPR ‘in its entirety’ (right to liberty and security of the person),Footnote 86 as well as a violation of Article 7 both with regard to the son's indefinite incommunicado detention and the next of kin's anguish and stress.Footnote 87 The violation of Article 7 in respect of the next of kin was in recognition of the continuing uncertainty concerning the son's fate and whereabouts, which was the source of anguish and stress.Footnote 88 The HRC was therefore able to invoke Article 2(3) to require Sri Lanka to provide an effective remedy.Footnote 89 Thus, in the Sarma View, both dimensions of the right to truth were mutually reinforcing and resulted in a clear obligation to investigate a disappearance that commenced before the crucial date.
There is a further strand to the HRC's jurisprudence on continuing violations, which may also impact upon the right to truth in transitional contexts. In addition to the ‘occurred or continued’ formulation noted above, the HRC has also stated that,
A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party.Footnote 90
It was in this way that, in its 2006 View in Mariam Sankara and others v Burkina Faso,Footnote 91 the HRC established temporal jurisdiction in respect of the alleged inhuman treatment of the family members of the assassinated president of Burkina Faso, Thomas Sankara, who was killed in 1987. Sankara himself had seized power in 1983, and Burkina Faso only began transitioning to democracy in the 1990s,Footnote 92 in part evidenced by the ICCPR and the Optional Protocol entering into force for Burkina Faso in 1999. The HRC separated the claims in respect of Thomas Sankara's rights from those of his family. Although Thomas Sankara's death in 1987 may have involved the violation of several articles of the Covenant, complaints about it were inadmissible ratione temporis.Footnote 93 However, as to his next of kin's rights, the failure to conduct an inquiry into the death, and the continued failure to correct Sankara's death certificate (which quite falsely stated that he died of natural causes) gave rise to alleged violations after the entry into force of the Covenant.Footnote 94 Thus on the merits the HRC found a violation of Article 7 ICCPR in respect of the anguish caused by the lack of investigation into the situation and, citing Quinteros, noted that Thomas Sankara's family had ‘the right to know the circumstances of his death’.Footnote 95 In this way the HRC's transitional jurisprudence upheld the right to truth in respect of events some way prior to Burkina Faso's commencement of transition to democracy.
The requirement, in some cases, for some form of affirmation or perpetuation of a violation that occurred prior to the crucial date has led to Views that are difficult to reconcile with those based on the ‘occurred or continued’ formulation of continuing violations. For example, in the 2009 decision in Cifuentes v Chile, the HRC found that the author's complaint about a disappearance that began in 1981 (before Chile ratified the Optional Protocol) was inadmissible because the author had made, ‘no reference to any action by the State party after [the crucial date] that would constitute a perpetuation by the State party of the enforced disappearance of her son’.Footnote 96 Chile had ratified the Optional Protocol with a declaration very similar to that seen in the Sarma case, restricting the competence of the HRC to acts after the Protocol came into effect for Chile.Footnote 97 Yet, in the Sarma case, we saw that the HRC identified that the disappearance gave rise to facts ‘occurring or continuing’ after the crucial date, which disclosed violations of the Covenant.
Whilst the Sarma View was adopted unanimously, there was significant dissent in the Cifuentes decision. The most striking dissent was by HRC members Keller and Salvioli, according to whom,
The practice of enforced disappearance has given rise to the formulation of new rights and their introduction, through evolutive interpretation, into these general [human rights] instruments; the ‘right to the truth’ is one example.
They continued that under the ICCPR the right to truth,
arises in connection with the right to an effective remedy (art. 2, para. 3(a)), read in conjunction with the general obligation to respect and to ensure to all individuals the rights recognized in the Covenant …
[The] right to the truth entails the right to obtain a clarification from the competent State bodies of the events constituting violation(s) and the persons responsible for them. Accordingly, the State must undertake an effective investigation of enforced disappearances in order to identify, prosecute and punish the perpetrators and instigators of such violations.
Members Keller and Salvioli also questioned why the majority had not explored the case from the perspective of the author's rights under Article 7 ICCPR.
From this section we can conclude that the status of the right to truth in the transitional jurisprudence of the HRC is somewhat mixed. Whilst the Quinteros line of cases (on denial of the next of kin's ‘rights to know’ as inhuman treatment) has been applied to historical disappearances and killings, such as in the Sarma and Sankara cases, in others such as S.E. and Cifuentes this dimension was omitted altogether. Likewise there seems to be disagreement about the correct test for establishing temporal jurisdiction, with some Views and decisions focusing on whether there are effects that have ‘occurred or continued’ after the crucial date; and others requiring an act of affirmation. Moreover, the Article 2(3) ICCPR right to a remedy may only be invoked alongside another established violation, and thus cannot be used alone as the foundation for gaining the truth about alleged abuse occurring before the crucial date.
The View in Sarma and the dissents in the Cifuentes decision present a more preferable view of continuing obligations arising from disappearances, which most effectively secures the rights of the next of kin, and also more closely resembles the approach of the Inter-American Court discussed in the next section. Indeed we saw that in Cifuentes dissent HRC members Keller and Salvioli expressly linked Article 2(3) ICCPR to the right to truth. In 2011 Keller became a judge at the European Court of Human Rights, and further below we shall see that, via contributing to two separate opinions in particular,Footnote 98 judge Keller has continued to advocate for greater recognition of the right to truth.
IV. THE RIGHT TO TRUTH IN THE INTER-AMERICAN HUMAN RIGHTS SYSTEM
A. General Approach to the Right to Truth
The development of the right to truth in the Inter-American human rights system is intertwined with its approach to the phenomenon of enforced disappearances. In its first judgment in contentious proceedings, in the case of Velásquez Rodríguez v Honduras, the Inter-American Court (IACtHR) found that enforced disappearances cause, ‘a multiple and continuous violation of many rights under the [American Convention on Human Rights (ACHR)]’.Footnote 99 These include the right to personal liberty, right to life, and right to integrity of the person (including freedom from torture, inhuman or degrading treatment: Article 5 ACHR). Citing the overarching Article 1 duty to ensure respect for human rights, the IACtHR found that the duty to investigate disappearances ‘continues as long as there is uncertainty about the fate of the person who has disappeared’.Footnote 100
Just as with the HRC, the finding that disappearances have a continuing dimension will be important to the discussion of admissibility ratione temporis; and we shall return to this below. For now, it is important to emphasize the continuing remedial obligations imposed upon Honduras through Article 63(1) ACHR because, in later cases, these have been expressly connected to the right to truth. The IACtHR has identified that the right to truth, ‘constitutes an important means of reparation’, creating expectations for both for the next of kin and society as a whole; such that there must be an effective investigation of grave human rights violations, which must be made known to the public.Footnote 101 Indeed this has led not only to detailed guidance on the scope of investigations that must be carried out, but also on public acknowledgements and memorialization.Footnote 102 Interestingly in its findings on investigatory obligations as an act of reparation the IACtHR has stated that the work of a truth commission, ‘neither completes nor substitutes for the State's obligation to establish the truth and to ensure the judicial determination of individual or State responsibilities also by judicial proceedings,’Footnote 103 —although such initiatives can, ‘contribute to the construction and preservation of the historical memory’.Footnote 104
Turning now to findings on the merits, in common with the HRC the Inter-American system has recognized that the failure to expose the truth about gross violations of human rights may cause free-standing human rights violations in respect of the next of kin. Again like the HRC this jurisprudence has two principal dimensions,Footnote 105 involving both the right to humane treatment and the right to a remedy.
The IACtHR's approach to the Article 5 ACHR right to humane treatment is both formally and functionally comparable to the HRC's approach to Article 7 ICCPR in the Quinteros View. Thus the IACtHR has held that, ‘the violation of the mental and moral integrity of the next of kin is precisely a direct consequence of the forced disappearance’.Footnote 106 In this regard the IACtHR has taken into account circumstances in which the respondent State has obstructed the next of kin's ‘efforts to learn the truth of the facts’.Footnote 107
Whilst the Article 5 jurisprudence developed in respect of disappearances, it has been applied to other forms of human rights violation. Thus, in the Barrios Family case, concerning a series of killings by the Venezuelan authorities, the ACtHR reiterated that, ‘the next of kin of the victims of human rights violations may, in turn, be victims’.Footnote 108 In this way continued impunity, resulting from a lack of judicial response to clarify the facts of a massacre, can constitute a ‘new traumatic impact’,Footnote 109 capable of causing infringement of Article 5 ACHR in respect of survivors and next of kin.Footnote 110 Whilst the connection to the right to truth is not express, this line of jurisprudence is still significant because it mirrors the jurisprudence at the HRC that does refer to the ‘right to know’.Footnote 111
The second dimension of the ACtHR's jurisprudence relating to the right to truth is where the next of kin have complained about a lack of investigation and information, using Articles 8 and 25 taken together (the right to a fair trial and right to judicial protection), in relation to the overarching Article 1 obligation to respect and ensure rights. This dimension is functionally comparable to, but more far-reaching than, the obligations emanating from the right to a remedy in the ICCPR and, in the Inter-American system, the right to truth has been invoked more expressly. The Inter-American Commission has stated that the general obligation in Article 1 ACHR entails that ‘the ‘‘right to the truth’’ arises as a basic and indispensable consequence for all States Parties’,Footnote 112 having both individual and collective dimensions.Footnote 113 The IACtHR, however, has thus far declined to recognize the right to truth as an autonomous right (although the Concurring Opinion of Judge Eduardo Ferrer Mac-Gregor Poisot in the recent case of Rodríguez Vera et al. v Columbia makes a strong case for it).Footnote 114 Instead, the IACtHR has frequently repeated that,
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.Footnote 115
This is clear also in cases on other forms of human rights violation (ie in addition to disappearances). Thus amongst its findings on Articles 8 and 25 ACHR in the Myrna Mack Chang case, the IACtHR examined the way in which the Guatemalan judicial system had allowed the State to delay proceedings in relation to the extra-legal execution of a prominent anthropologist as part of a covert military intelligence operation, in 1990.Footnote 116 The IACtHR observed that the failure to abide by the standards required by Articles 8 and 25 ACHR gave rise to a violation of the international obligation of the State to prevent and protect human rights; and it had also, ‘abridge[d] the right of the victim and the next of kin of the victim to know the truth of what happened’.Footnote 117
B. Admissibility ratione temporis and Transitional Jurisprudence
In the Velásquez Rodríguez v Honduras judgment the IACtHR established that responsibility for human rights violations exists independently of changes of government, even where the new government, ‘may be much more respectful of those rights than that of the government in power when the violations occurred’.Footnote 118 Thus, in Ruti Teitel's analysis the duties recognized in Velásquez Rodríguez were able to ‘transcend and bridge’ the different regimes.Footnote 119 Likewise both Roht-Arriaza and Orentlicher noted the IACtHR's findings in Velásquez Rodríguez as part of their evidence in favour of the existence of a duty to investigate and prosecute grave violations of human rights.Footnote 120 However, Honduras had ratified the ACHR in 1977 and accepted the contentious jurisdiction of the IACtHR from 9 September 1981—just before the enforced disappearance of Manfredo Rodríguez on 12 September 1981. Thus, there was no question of inadmissibility ratione temporis. Nevertheless the recognition that, where there are no temporal barriers to jurisdiction, successor regimes have investigatory obligations is both significant and comparable to that seen at the HRC in Hugo Rodriguez v Uruguay, noted above.
Decided on the merits in 1998, the case of Blake v Guatemala concerned the disappearance and killing of a US journalist, Nicholas Blake, and his photographer Griffith Davis in 1985. Guatemala only accepted the contentious jurisdiction of the IACtHR in 1987,Footnote 121 after the military junta of General Efraín Ríos Montt had been overthrown (but whilst the country was still embroiled in its civil war, which lasted from 1960 to 1996).Footnote 122 In this case, there was a very real issue of admissibility. The IACtHR resolved itFootnote 123 by accepting that even though it would not have jurisdiction to attribute State responsibility for violations of Blake's right to liberty under Article 7 ACHRFootnote 124 or his right to life under Article 4,Footnote 125 the disappearance marked the beginning of a continuing situation,Footnote 126 involving ‘actions and effects’ after the crucial date, which could give rise to violations in respect of the next of kin.Footnote 127 The IACtHR thus found a violation of Article 8 and Article 5 ACHR, in relation to Article 1 ACHR.Footnote 128 In other words, both dimensions of the right to truth were, at least implicitly, vindicated (deriving from the right to a remedy and the right to humane treatment).
Whilst the Blake case did not expressly mention the right to truth, in later cases on disappearances where temporal jurisdiction has been established in a similar way, the right to truth has underpinned violations of Article 5, and Articles 8 and 25, in the same way as those cases without a temporal dimension noted in the previous section.Footnote 129 It has even done so where States have reservations preventing the IACtHR from considering the continuing effects of events prior to acceptance of the contentious jurisdiction of the court: the post-acceptance acts or omissions of the State can still be ‘independent facts’ sufficient to establish a free-standing violation of the ACHR in respect of the next of kin.Footnote 130
This is crucial because it has allowed the IACtHR also to vindicate the right to truth through findings on Article 5, and Articles 8 and 25 ACHR, concerning the failure to investigate human rights violations before the crucial date other than disappearances (ie where the triggering event is ‘instantaneous’ rather than continuing). This can be seen in the judgment in Moiwana Community v Suriname,Footnote 131 concerning a massacre in 1986 during the military dictatorship of Dési Bouterse.Footnote 132 Suriname argued that the complaint should be inadmissible because it had accepted the jurisdiction of the IACtHR in 1987 and only forced disappearances, which were not at issue, had a continuing dimension.Footnote 133 To the contrary, the IACtHR held that once the allegation of a massacre had been made an obligation to investigate, prosecute and punish arose; and that the IACtHR was competent to assess compliance with that obligation from the date on which Suriname recognized the competence of the Court. Thus actions or omissions of the State in respect of its investigation into the massacre, commenced in 1989—after the crucial date, fell within the temporal jurisdiction of the IACtHR.Footnote 134
On the merits, the State argued inter alia that when the investigation commenced in 1989 democracy was still not stable and, ‘the climate was not suitable to carry out a sufficient investigation.’Footnote 135 However, it went on, the investigation had resumed in 2002.Footnote 136 The IACtHR responded firmly, holding in relation to Articles 8 and 25 ACHR that, ‘Upon its accession to the American Convention in 1987, then, the first legal remedy Suriname was obligated to provide was a swift and exhaustive judicial investigation into the events of November 29, 1986.’Footnote 137 In examining the defective and protracted investigation into those events, the IACtHR acknowledged that, ‘victims of rights violations and their family members have a right to know the truth regarding those violations’.Footnote 138 Thus the right to truth effectively underpinned a duty to investigate the misdeeds of a prior regime, even before the crucial date. This is an important legal development indeed. The IACtHR also reiterated that a long-standing absence of effective remedies is a source of suffering and anguish for victims and their family members,Footnote 139 and found a violation of Article 5 ACHR in that regard (amongst other reasons).Footnote 140
In summary the IACtHR has upheld the right to truth both by its findings on the right to humane treatment under Article 5 ACHR and the right to a remedy under one or both of Articles 8 and 25 ACHR (taken together with Article 1). State acts or omissions after the crucial date may be ‘independent facts’ in respect of which the next of kin is able to vindicate procedural rights connected to the right to truth even where the triggering event is both instantaneous and prior to the crucial date. This has allowed the IACtHR to impose significant obligations upon transitional States emerging from periods of dictatorship.
V. THE RIGHT TO TRUTH AT THE ECtHR
A. General Approach to the Right to Truth
The right to truth has been comparatively slow to develop in the jurisprudence of the European Court of Human Rights (ECtHR).Footnote 141 However we shall see that both dimensions of the right to truth that have been visible in the jurisprudence of the HRC and IACtHR are emerging in the jurisprudence on the European Convention on Human Rights (ECHR).
The ECtHR has been influenced by the HRC View in Quinteros, and has thus recognized that in certain circumstances the next of kin of a victim of human rights abuses may, themselves, become a victim of inhuman and degrading treatment.Footnote 142 This approach is similar also to that of the IACtHR, as seen in Bámaca Velásquez. Thus on the face of it there is formally and functionally comparable jurisprudence on inhuman treatment across all three human rights regimes examined so far. However, the threshold for violating next of kin rights is comparatively high at the ECtHR. In the 1991 Çakıcı v Turkey judgment the ECtHR declined to find a violation of Article 3 in respect of the brother of a disappeared person, noting that he had not witnessed the abduction; he had not ‘born the brunt’ of the work attempting to secure justice for his brother; and there were no ‘aggravating factors’.Footnote 143 In its 2001 judgment in the Cyprus v Turkey inter-State case the ECtHR further stated that,
the question whether a family member of a ‘disappeared person’ is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the person concerned a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation … .Footnote 144
This approach, normalizing the ‘inevitable distress’ caused by human rights violations, fails to capitalize fully upon the notion that denial of access to the truth viewed through the prism of the next of kin's right to freedom from inhuman and degrading treatment can buttress investigative obligations derived from other rights (such as the right to a remedy). Moreover the ECtHR has developed the rather unfortunate principle that,
[W]hile a family member of a ‘disappeared person’ can claim to be a victim of treatment contrary to Article 3 …, the same principle would not usually apply to situations where the person taken into custody has later been found dead … In such cases the Court would normally limit its findings to Article 2.Footnote 145
In the admissibility decision in Gürtek in and others v Cyprus, the ECtHR confirmed that it would make a separate finding on Article 3 ECHR in respect of confirmed deaths only in ‘very restricted circumstances’.Footnote 146 Such circumstances might be where the next of kin were direct witnesses to the killing.Footnote 147 The ECtHR therefore draws a clear line between a ‘disappearance case’ and a ‘confirmed death case’, in a way that is not at all reflective of developments at the IACtHR and HRC. This is surely an invidious position for the ECtHR to adopt.Footnote 148
We now turn to the second dimension of the right to truth: the duty to investigate and prosecute which, at the HRC and IACtHR, was rooted in the right to a remedy. For the ECtHR the obligation to investigate human rights abuses is generally derived from the procedural ‘limb’ or ‘aspect’ of the applicable substantive right (ie the right to life (Article 2 ECHR), or freedom from torture (Article 3 ECHR)) rather than the right to a fair hearing (Article 6 ECHR) or the right to an effective remedy (Article 13 ECHR). Articles 6 and 13 ECHR have been used more in respect of checking the remedial phase of domestic human rights litigation, with the ECtHR having established that wherever there is an ‘arguable’ grievance regarding a Convention right, there must be an effective domestic remedy allowing a ‘competent national authority’ to deal both with the substance of the complaint and to grant appropriate relief.Footnote 149 Where a case has been examined from the perspective of Article 6, or where there has been substantial discussion of the adequacy of domestic remedies for admissibility purposes, the ECtHR tends to conclude it is unnecessary to examine the case from the perspective of Article 13.Footnote 150 Nevertheless, when it has examined the Article 13 right to a remedy it has held that it is wider than a Contracting State's obligation under Article 2 to conduct an effective investigation.Footnote 151
Recent cases on the reprehensible practice of ‘extraordinary rendition’ have exemplified the practice of imposing investigatory duties through the relevant substantive right rather than the right to a remedy; whilst at the same time recognizing the close relationship between duties to investigate and the right to truth. The case of El-Masri v Macedonia was brought by a victim of extraordinary rendition. In its discussion of Article 3 ECHR the ECtHR Grand Chamber declared that it would set out to,
address another aspect of the inadequate character of the investigation in the present case, namely its impact on the right to the truth regarding the relevant circumstances of the case. In this connection it underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened.Footnote 152
The Grand Chamber stressed that an adequate investigation of the circumstances was essential in maintaining public confidence in the authorities; and that the inadequate investigation in his case had prevented El-Masri ‘from being informed what had happened’.Footnote 153 Thus whilst the right to truth is ‘subsumed’ within the right to a remedy (implying a duty to investigate) in Articles 8 and 25 ACHR, here it is addressed through the procedural limb of Article 3 ECHR. Nevertheless the essence of the reasoning is functionally comparable (but note that this invocation of Article 3 ECHR is distinct from its other role, where the next of kin's anguish in respect of human rights abuses may give rise to a separate violation of Article 3).Footnote 154
It is also important to observe that in El-Masri the applicant sought to rely upon his Article 10 ECHR right to ‘receive and impart’ information as the foundation for ‘a right to be informed of the truth’ regarding the circumstances that had led to the violations of his Convention rights.Footnote 155 The ECtHR declared this aspect of the complaint manifestly ill-founded, as it overlapped with and had been addressed by the application of Article 3 ECHR.Footnote 156 This is directly comparable to the way in which the right to truth is ‘subsumed’ within Articles 8 and 25 ACHR by the ACtHR, but has been rejected as a free-standing right.
There is thus a clear recognition by the ECtHR that the right to truth is subsumed within the procedural limb of certain Convention rights, but that attempts to invoke it expressly will fail. However, in El-Masri there were lengthy separate opinions expressing divergent approaches to the right to truth. The Joint Concurring Opinion of judges Tulkens, Spielmann, Sicilianos and Keller in El-Masri called for a bolder application of Article 13 ECHR and criticized, ‘the judgment's somewhat timid allusion to the right to the truth in the context of Article 3’.
Recall that whilst still a member of the ICCPR HRC, ECtHR Judge Keller had joined HRC member Salvioli in a dissent from the outcome of the Cifuentes inadmissibility decision, criticizing the majority's failure to uphold the right to truth. The Joint Concurring Opinion in El-Masri is a similar attempt to link the right to truth to the right to a remedy. However it should also be noted that in El-Masri the Joint Concurring Opinion of Judges Casadevall and López Guerra took exactly the opposite approach, and went so far as to describe the judgment's (‘timid’) discussion of the right to truth as ‘redundant’.
Before examining the European approach to cases presenting challenges in terms of admissibility ratione temporis, it is necessary to identify the ECtHR's jurisprudence on historical human rights violations that are nevertheless within its temporal jurisdiction. For example in the 2007 judgment in Brecknell v UK, the Court examined the effectiveness of a 1999 investigation into three 1975 murders in Northern Ireland.Footnote 157 The UK ratified the ECHR in 1951 and accepted the right of individual petition in 1966.Footnote 158 Although the ECtHR found for the applicant it reasoned that,
the nature and extent of any subsequent investigation required by the procedural obligation would inevitably depend on the circumstances of each particular case and might well differ from that to be expected immediately after a suspicious or violent death has occurred.
The Court would also comment that there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity.Footnote 159
The differing procedural obligation for historical human rights violations has been observed also in respect of inadequate relaunched investigations into killings in Turkey,Footnote 160 as well as killings and disappearances in Chechnya (Russia).Footnote 161 The ECtHR has also observed that the extent of the duty to investigate may depend on the context, and therefore in the case of Al-Skeini v the United Kingdom, observed that,
in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and … concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed.Footnote 162
The investigative duty is clear, but it is one of means not ends.Footnote 163
Finally in this section the recent practice of the ECtHR in respect of Article 46 ECHR should be noted. Article 46, as interpreted in the light of Article 1, has been held to impose upon respondent States a legal obligation to implement (under the supervision of the Council of Europe's Committee of Ministers), appropriate general or individual measures to secure any rights that the ECtHR has found to be violated in a given case.Footnote 164 Unlike the IACtHR acting under Article 63(1) ACHR the ECtHR has not expressly linked its remedial findings to vindication of the right to truth, but it has for example given advice about urgent steps to be taken to address the issue of the systemic failure to investigate disappearances in the Northern Caucasus, including to establish a single, sufficiently high-level body in charge of solving disappearances in the region in addition to pursuing an effective criminal investigation.Footnote 165
B. Admissibility ratione temporis and Transitional Jurisprudence
In the previous section we saw that the European system draws a sharp distinction between disappearances (giving rise to continuing violations) and killings (and other instantaneous acts). This distinction becomes even more important in relation to the ECtHR's transitional jurisprudence on the right to truth, and so they will be examined separately.
1. Historical disappearances
In common with the IACtHR, the ECtHR has characterized disappearances as giving rise to a continuing situationFootnote 166 in respect of which procedural obligations to investigate will persist as long as the fate of the missing person is unknown, and even where death may be presumed.Footnote 167 On this basis the ECtHR has established temporal jurisdiction in relation to disappearances resulting from the Turkish invasion of Cyprus in 1974, even though Turkey only accepted the right of individual petition in 1987.Footnote 168 Thus in the 2009 judgment in Varnava v Turkey the failure of the Turkish authorities to conduct an effective investigation into the fate of people who disappeared in life-threatening circumstances in 1974 disclosed a continuing violation of Article 2 ECHR.Footnote 169 The ECtHR made this finding even though it acknowledged it may be the case that, ‘both sides in [the] conflict prefer not to attempt to bring out [events within the conflict] to the light of day’, and may prefer a more ‘politically sensitive’ approach.Footnote 170 In the Varnava judgment the ECtHR also found inter alia a violation of the next of kin's Article 3 rights arising from the length of time over which they had been denied an investigation, and from ‘official indifference in face of their acute anxiety to know the fate of their close family members [sic]’.Footnote 171
Thus, in relation to historical disappearances there has been European jurisprudence that is functionally equivalent to that seen at the HRC and IACtHR, which in those jurisdictions was underpinned by the right to truth (expressly in relation to the right to a remedy at the IACtHR, and freedom from inhuman treatment at the HRC). The European jurisprudence developed in relation to the 1974 events in Cyprus, but has since been applied inter alia to disappearances commencing in the violent break-up of the former Yugoslavia in the 1990s, well before the Balkan States signed and ratified the ECHR.Footnote 172
2. Historical confirmed deaths and next of kin rights to humane treatment
Whilst the European jurisprudence on next of kin rights in relation to historical disappearances is similar to that of the HRC and IACtHR the situation in respect of historical ‘confirmed deaths’ is very different, thereby preventing findings such as those in the Sankara View and Moiwana Community judgment of the HRC and IACtHR, respectively.Footnote 173
The dominant European approach is clearly visible in the contrast between the ECtHR Chamber and Grand Chamber judgments in the case of Janowiec v Russia. The case concerned the secret Soviet execution of nearly 22,000 Polish prisoners of war in 1940, in (amongst other places) the Katyn Forest.Footnote 174 The case, which we shall return to below, was brought by family members of those who were killed; who complained inter alia that their treatment by the Russian authorities after it signed and ratified the ECHR in 1998 amounted to inhuman and degrading treatment. Citing the Sankara HRC ViewFootnote 175 the Chamber found a violation of Article 3 ECHR,Footnote 176 observing that compliance with Article 3 in cases such as this entailed that States must, ‘exhibit a compassionate and respectful approach’Footnote 177 —whereas the Russian authorities had, ‘demonstrated a flagrant, continuous and callous disregard for [the applicants’] concerns and anxieties’.Footnote 178 However, the Grand Chamber found that by the time Russia had ratified the ECHR there was no uncertainty as to the fate of the prisoners and that, ‘what could initially have been a “disappearance” case must be considered to be a “confirmed death” case’.Footnote 179 Having made this dubious finding, the Grand Chamber then declined to find a violation of Article 3 ECHR. The Grand Chamber noted the applicants’ ‘profound grief and distress’ but found that it did not reach, ‘a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of victims of a serious human rights violation’.Footnote 180
3. Historical confirmed deaths and next of kin procedural rights: the ECtHR ‘genuine connection’ test emerges
In Sankara and Moiwana Community the HRC and IACtHR both also examined the next of kin's right to a remedy. As noted above, the ECtHR's approach to the Article 13 ECHR express right to a remedy is to see it as an adjunct to violations of other rights, rather than the source of extensive procedural obligations. Whilst the IACtHR and HRC have been able to (more or less explicitly) vindicate the right to truth in respect of historical killings through contemporary duties to investigate and prosecute emanating from an express right to a remedy, such an option is thus not open to the ECtHR. Instead, in respect of confirmed deaths (and accusations of historical torture), it has examined the temporal scope of the procedural obligations arising from the right to life (or right to freedom from torture) itself. Here its approach is unique, and is at least potentially hugely significant for the vindication of the right to truth in transitional human rights jurisprudence.
The ECtHR, in common with the HRC and IACtHR, has accepted that it has no temporal jurisdiction over State responsibility for a life allegedly taken or lost ‘instantaneously’ before the crucial date. This element of the European jurisprudence runs in parallel with its approach to instantaneous acts of property confiscation before the crucial date.Footnote 181 However the ECtHR has since observed that the property jurisprudence on temporal admissibility is ‘of a general character’ and that the ‘special nature’ of certain rights, including Articles 2 and 3 ECHR, should be taken into consideration.Footnote 182 After a period in which, by its own admission,Footnote 183 different Chambers of the ECtHR had taken varying approaches to the temporal scope of the procedural dimension of Articles 2 and 3 ECHR, in the case of Šilih v Slovenia the Court set out to provide some clarity. The Šilih case was not so much about the right to truth within the legacy of a totalitarian regime, but the implications for transitional jurisprudence became clear soon afterwards.
The Šilih case concerned the death in hospital of the applicants’ son in May 1993, after he had sought medical assistance for nausea and itching skin. Slovenia only ratified the ECHR in June 1994—over a year after the death. However, the applicants had initiated several allegedly defective civil and criminal proceedings after the crucial date. Slovenia argued that the acts or omissions by which a Convention right was allegedly infringed and the proceedings related to them were indivisible and so could not be examined separately.Footnote 184 The ECtHR, however, found that the procedural obligation under Article 2 ECHR to carry out an effective investigation had evolved into a separate and ‘autonomous’ duty,Footnote 185 capable of binding Slovenia even though the death occurred before the crucial date.Footnote 186 This is functionally comparable to the IACtHR's use of Articles 8 and 25 ACHR, in which we have seen that the right to truth may be ‘subsumed’. However, the ECtHR went on, the detachable procedural obligation in respect of deaths before the crucial date was ‘not open-ended’.Footnote 187 At this point in the judgment, the Grand Chamber set out conditions that would need to be met. These conditions add a degree of complexity that is absent from the Inter-American and HRC jurisprudence but, at least in theory, presented a distinctive and powerful route to vindication of the right to truth in transitional human rights jurisprudence.
First, only procedural acts or omissions that took place after ratification could fall within the temporal jurisdiction of the Court.Footnote 188 Second, there would have to be a ‘genuine connection’ between the death and the entry into force of the Convention, in the sense that ‘a significant proportion’ of the procedural steps required by Article 2 ‘will have been or ought to have been carried out after the critical date’.Footnote 189 There was, however, to be a further means of establishing the ‘genuine connection’, with the Grand Chamber stating that,
in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.Footnote 190
The Court noted that all the unsuccessful criminal and civil proceedings in this case had been initiated after June 1994, and that therefore there was a ‘genuine connection’.Footnote 191 A violation of Article 2 in its procedural dimension was established. The ECtHR has since clarified that the Šilih route to temporal admissibility is available also in respect of ‘instantaneous’ acts of torture prior to the crucial date.Footnote 192
4. The ECtHR ‘genuine connection’ test and transitional jurisprudence
In a series of cases brought against Romania the ECtHR applied the Šilih approach to temporal admissibility to gain jurisdiction over flaws in a contemporary investigation into killings carried out during and soon after the fall of the communist Ceaușescu regime, in 1989.Footnote 193 This was despite that the ECHR only entered into force for Romania in June 1994. In examining the procedural aspect of Articles 2 and 3 ECHR in relation to the events in Romania, the ECtHR has observed, ‘the right of the numerous victims to know what had happened’,Footnote 194 and acknowledged ‘the right of victims and their families and heirs to know the truth about the circumstances surrounding events involving a massive violation of rights’.Footnote 195 In this way the ECtHR came close to vindicating the right to truth expressly, having gained temporal jurisdiction via the ‘genuine connection’ test.Footnote 196
The ECtHR has also established temporal jurisdiction in respect of the investigation of totalitarian crimes longer ago. In the 2013 Chamber judgment in Przemyk v Poland the triggering event was the killing of the applicant's son by the police in 1983,Footnote 197 despite Poland only recognizing the right of individual petition in 1993.Footnote 198 The ECtHR noted that the lack of rigour in the criminal justice system was, ‘insufficient for coming to terms with the legacy of the totalitarian past’.Footnote 199 Thus whilst the judgment did not expressly mention the right to truth, it is clear that the obligations arising from the procedural limb of the right to life can play a significant role in historical accounting in respect of transitions from totalitarianism.
The Romanian cases and Przemyk raise the question of exactly how far back in time the triggering event can be when it comes to gaining temporal jurisdiction over the procedural aspect of Articles 2 and 3 ECHR. On the face of it, the ‘genuine connection’ and ‘underlying values’ tests could be a powerful tool within the ECtHR's transitional jurisprudence for encouraging new democracies’ effective investigation of their totalitarian past, in such a way as to promote the right to truth and historical accounting more broadly. It would seem, however, that the ECtHR has declined to seize this opportunity. This is illustrated by the cases of Dorado and Dorado Ortiz v Spain, concerning a killing at the start of the Spanish civil war, in 1936; and the aforementioned Janowiec Grand Chamber judgment in respect of the 1940 Katyn massacre.
The admissibility decision in Dorado and Dorado Ortiz v Spain declared the application inadmissible on the basis that the complaint was rooted in an event that preceded the adoption of the ECHR itself by 14 years, and its ratification by Spain by some 43 years.Footnote 200 Under these circumstances it was ‘difficult’ to find a ‘genuine connection’ for the purposes of the Šilih test.Footnote 201 Regrettably, the ECtHR did not discuss the ‘underlying values’ aspect of the Šilih test.
In the Janowiec v Russia judgment (just two months after Przemyk) the ECtHR Grand Chamber set out to clarify the Šilih jurisdictional criteria, and in so doing modified them somewhat: it approached the ‘underlying values’ test as an alternative to, rather than a component of, the ‘genuine connection’ test.Footnote 202 Also, in a slight change of language, the ‘underlying values’ test was referred to as the ‘Convention values’ test.Footnote 203
Examining first whether there was a ‘genuine connection’ and then whether the ‘Convention values’ test was passed, the Grand Chamber still declined jurisdiction on either ground. As to the ‘genuine connection’ between the triggering event and the crucial date the Grand Chamber conceded that there were no ‘apparent legal criteria’ for imposing a time limit for establishing such a connection, yet then promptly limited it to ten years;Footnote 204 and found also that it was ‘impossible’ to identify real investigative steps or new information after the crucial date.Footnote 205 As to ‘Convention values’, the Grand Chamber stated that they could not be invoked in respect of events that occurred prior to the adoption of the ECHR itself.Footnote 206
This reasoning and conclusion is disappointing on several levels, especially given that the Grand Chamber reversed the Chamber's finding that there had been a violation of Article 3 ECHR, as noted above. It is an unjustifiably harsh application of the ECtHR's own earlier jurisprudence; and is at odds with the practice of the IACtHR and HRC.
In terms of the harshness of the decision on its own terms, the conclusion that it was ‘impossible’ to find evidence of investigative steps or new information after the crucial date should be seen alongside the Grand Chamber's own finding that Russia was in breach of its Article 38 ECHR obligation to cooperate fully with the ECtHR by supplying all relevant documents to it.Footnote 207 Surely some of the ‘impossibility’ is causally connected to Russia's failure to cooperate. Alternatively, the Partly Dissenting Opinion of Judges Ziemele, De Gaetano, Laffranque and Keller makes a convincing argument that there were identifiable procedural shortcomings after the crucial date: their approach being comparable to the HRC's ‘affirmation’ doctrine.
The approach to the ‘Convention values’ test is also harsh. First, one might point out that the ECHR did not spring out of thin air in 1950, and its ‘values’ may be said to spring from what its Preamble describes as a, ‘common heritage of political traditions, ideals, freedom and the rule of law’. This ‘common heritage’ of adherence to the rule of law is, surely, an underlying ‘Convention value’ that must have predated the ECHR—and which the shooting of prisoners of war clearly violated. Indeed, given the horrific nature of the events, the Grand Chamber Partial Dissent of Judge Ziemele et al., quoting directly from the Partly Dissenting Chamber Opinion of Judges Spielmann, Villiger and Nuβberger, advocated jurisdiction via application of the ‘underlying values’ test (thereby demonstrating that a substantial number of judges in total were actually in favour of jurisdiction over an alleged Article 2 procedural violation in this case). Second, it is difficult to see why it could not be a contemporary ‘Convention value’ that Contracting Parties investigate effectively the most notorious events in their totalitarian past (as indeed the applicants themselves had argued).Footnote 208
The main problem from a comparative perspective is with the arbitrary imposition of a ten-year limit to the ECtHR's jurisdiction on the basis of the Šilih ‘genuine connection’ criteria. Recall that the triggering event in the Sankara HRC View took place nearly 12 years before the ICCPR and its Optional Protocol came into effect for Burkina Faso.Footnote 209 In the IACtHR judgment on Preliminary Objections in Serrano Sisters,Footnote 210 temporal jurisdiction was established over the failure to investigate effectively a triggering event some 13 years before El Salvador accepted the jurisdiction of the IACtHR.Footnote 211 The ten-year ECtHR limit is thus clearly more strict than that seen in other human rights systems.
VI. CONCLUSION: TOWARDS A COHESIVE APPROACH TO THE ELUSIVE RIGHT TO TRUTH
One of the purposes of comparative law is to identify a richer range of solutions to common problems.Footnote 212 If we accept that hiding the truth about human rights abuses of the past is a problem, then we are now in a position to identify commonalities and divergences in the way that different international human rights bodies have sought a solution. In doing so the right to truth may become a little less elusive.
In slightly different but functionally equivalent ways the HRC, IACtHR and ECtHR have upheld the substance of an individual right to truth both by recognizing that the denial of information about human rights violations can rise to the level of inhuman treatment; and also through procedural duties to investigate and prosecute.Footnote 213 The fact that the ECtHR has vindicated the right to truth through the procedural obligations emanating from substantive rights, rather than the Article 13 ECHR express right to a remedy is not, at least for this study, especially problematic: formal equivalence across the regimes would have the merit of simplicity, but it is not inherently superior. It is also important to note that although there has been less relevant jurisprudence from the African human rights system, the twin formulation of the right to truth observed here is entirely compatible with the findings of the African Commission on Human and Peoples’ Rights.Footnote 214 Likewise in the Norbert Zongo case the African Court has found that the failure to exercise due diligence in the investigation of a journalist's murder violated the rights of the applicants to have their case heard by competent national courts (as guaranteed by Article 7 of the African Charter on Human and Peoples’ Rights),Footnote 215 as well as the overarching Article 1 obligation to give effect to the rights in the African Charter. It has yet to rule on the next of kin's rights to freedom from inhuman treatment.Footnote 216
Given that the right to truth in human rights law is not tied to the precise wording of particular treaties, it is particularly suited to judicial collaboration or trans-judicial dialogue.Footnote 217 It might promote further judicial dialogue to be more explicit about the extent to which the right to truth simultaneously underpins both of these types of finding: until now only the IACtHR and ECtHR have expressly acknowledged that it underpins the duty to investigate and prosecute; whereas only the HRC has regularly invoked the right to truth (or ‘right to know’) as a constitutive element of inhuman treatment of the next of kin. Viewed as part of a comparative analysis of the right to truth, it bears repeating that the very strict ECtHR test for establishing inhuman treatment for the next of kin of victims of human rights violations other than disappearances is problematic.
Even if there continued to be some reluctance consistently to invoke the right to truth as a value within findings on the merits, it would align more with the UN's Updated Principles on ImpunityFootnote 218 and Basic Principles and Guidelines on the Right to a RemedyFootnote 219 to at least address it systematically within the articulation of remedial duties. We have seen that the IACtHR has already taken this step expressly when acting under Article 63(1) ACHR, but the ICCPR under Article 2(3) ICCPR and ECtHR under Article 46 ECHR have not.
On the temporal dilemma, which as noted at the outset is particularly significant for transitional human rights jurisprudence, there is agreement across regimes (including in the African system)Footnote 220 that disappearances give rise to a continuing obligation to investigate and prosecute. There is also agreement in principle that, in relation to other human rights violations, sufficiently botched investigative steps after the crucial date can in certain circumstances give rise to fresh human rights violations over which the enforcement body has temporal jurisdiction. The HRC's ‘affirmation doctrine’ and the ECtHR's enquiry into procedural acts or omissions after the crucial date (as part of its ‘genuine connection’ test) have much in common. Likewise in the Norbert Zongo case the African Court also distinguished between instantaneous pre-ratification acts over which it will not have jurisdiction, and the contemporary failure to investigate—over which it will.Footnote 221 It is however the IACtHR, in the Moiwana case, that has been the clearest about obligations to investigate prior human rights abuses crystallizing upon the moment the relevant human rights treaty becomes effective for a transitional State, if credible allegations are made. The approach of the IACtHR shows how the idea of the right to truth can underpin a bold approach to adjudicating on a human rights court's own temporal jurisdiction, in such a way as to impose a contemporary duty to investigate historical human rights violations.
Again though, from a comparative perspective, the approach of the ECtHR to the temporal dilemma is stricter than the other human rights enforcement bodies due to the ten-year limit imposed in the Janowiec case on the establishment of a ‘genuine connection’. This would not be quite such an issue if the ECtHR's ‘underlying’ or ‘Convention values’ alternative route to temporal jurisdiction was applied with the effect of gaining jurisdiction to at least the same extent as other enforcement bodies. However, thus far no application whatsoever has passed this test. This is regrettable because as noted in the Introduction there seems to be an emerging consensus, in both scholarship and comparative human rights jurisprudence, that historical justice plays an important part in the process of transition—whether or not it is expressly characterized as vindication of the right to truth. In fact, the ECtHR's ‘underlying values’ test could have led the way in promoting internationally the notion that present-day denial or obstruction of the quest for truth about the gravest pre-ratification human rights abuses may amount, in itself, to a contemporary human rights violation. Such an approach does not apply each human rights treaty retroactively, nor does it convert every historical human rights abuse into a ‘continuing violation’, but it establishes exceptional circumstances in which denying the right to truth about historical human rights abuses is constitutive of a fresh violation within the temporal jurisdiction of the relevant enforcement body. This would support victims’ rights, and the ethos of the Basic Principles and Guidelines,Footnote 222 and would promote the notion that a human rights-respectful State is one that takes its history seriously. It is also entirely compatible with the recognition that human rights violations amounting to serious international crimes are not subject to statutes of limitation.Footnote 223
Importantly though, whilst an ‘underlying values’ test might seem far-reaching, it is bounded in at least two ways. First, if the duty to investigate also leads to prosecution, then any ensuing trial will have to conform to human rights standards including the right to a fair hearing and protection from retroactivity. Second, as the ECtHR (perhaps more so than the other bodies) has already recognized, in historical cases and conflict cases (or both), the duty to investigate is affected by countervailing factors such as the passage of time and the inherent difficulty of investigating under conditions of armed conflict. For example in the Palić judgment, which concerned a pre-ratification death and disappearance during the conflict in the Former Yugoslavia, the ECtHR observed that,
the obligations under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities … The Court takes into account the complex situation in Bosnia and Herzegovina, notably in the first ten years following the war. In such a post-conflict situation, what amounts to an impossible and/or disproportionate burden must be measured by the very particular facts and context.Footnote 224
This might appear to be a form of ‘transitional relativism’, where human rights standards are applied relative to the transitional contextFootnote 225 —but it is both pragmatic and proportionate, and would prevent an extended jurisdiction to vindicate the right to truth from being limitless. It does mean that there may be circumstances where a State might be in compliance with its human rights obligations even where, due to significant countervailing factors, it has not been able to complete its investigations. However, the approach suggested here at least promotes the expectation of the right to truth being vindicated, and promotes scrutiny of States’ actions in this regard.
In the Partly Dissenting Opinion of ECtHR Judge Wojtyczek in the case of Mocanu, concern was expressed that the tests established in the Šilih judgment were not clear, and that the Janowiec Grand Chamber judgment had done little to clarify them. Judge Wojtyczek, who had also dissented in Janowiec, argued that this lack of clarity could lead to ‘excessive hopes’ from applicants. The ‘fuzziness of the law’ he continued, ‘may lead to the erosion of the legitimacy of the entire system of human-rights protection in Europe’. On the contrary, it may be submitted that dashing the hopes of the victims of the most serious historical human rights abuses, and their next of kin, is at least as injurious to the legitimacy and esteem of human rights law. Faced with growing hostility to international human rights courts from even fairly stable democracies, the greater threat to the protection of human rights is that transitional democracies may use such hostility to attempt to legitimize their own rights-restrictive practices. Promoting the right to truth in transitional human rights jurisprudence through an ‘underlying values’ approach can play an important role in preventing backsliding, and may preserve, rather than threaten, the protection of human rights.
