Author: Natasha Stamenkovikj

The Right to The Truth in the European Human Rights System: Then and Now

Disclosing truthful information about violations of human rights provides a precondition for conflict-ridden societies to deal with the past and move towards sustainable peaceful setting. The right to know the truth about violent pasts has been firstly codified and regulated as a concept deriving from rules of war. The First Protocol Additional to the Geneva Conventions 1949 establishes a right for the families of victims of war to know the fate of their relatives (article 32). This concept generates a duty for states to ‘search for the persons who have been reported missing by an adverse Party’ (article 33) and disclose information on the whereabouts and the fate of those who have been killed or have gone missing as a result of a conflict (article 33). This scope of the right to the truth has been extensively promoted in the international normative and institutional decision-making that the International Committee of the Red Cross considers this right a norm of customary international law and the duty to search has become the most recognizable feature of the right to the truth.

The European Court of Human Rights (the Court) has used the duty to investigate to implicate, yet without explicitly recognizing or addressing, a right to the truth as a conflict-related derivate. This is noticeable in the Court’s deliberations on breaches of the European Convention on Human Rights (the Convention) regarding enforced disappearances, extrajudicial killings, and detentions within the context of the Turkish military operations in the South-East of Turkey and in Northern Cyprus (Mehmet Kaya v Turkey; Aksoy v Turkey; Varnava and Others v Turkey; Kurt v Turkey), the conflicts in the Russian Northern Caucasus (Aslakhanova and Others v Russia; Isayeva v Russia), and the Yugoslav wars (Jularić v Croatia; Škendzić and Krznarić v Croatia). The Court has explicitly recognized an obligation for states to carry out a thorough and effective investigation when individuals have been tortured and/or killed as a result of the use of force. The Court has noted that not knowing of the fate and the whereabouts of missing persons is tormenting to the families of those who remain unaccounted for, hence failing to investigate to establish the fate of those missing presents a continuing violation of the Convention. To this extent, the Court has reciprocated, yet only implicitly, the codified right to the truth for victims of conflict and their families.

Soft international norms and supranational policies (Impunity Principles, UN Reports, Resolutions and Studies) acknowledge the right to the truth as a conflict derivate and set standards for inquiring the truth through effective and independent investigations, so to reveal contextual information about the violent past and to lead to prosecuting and punishing those responsible. The Court has correspondingly set standards on the States’ duty to investigate, requiring it to be effective enough to secure the right to life, the prohibition of torture, and the right to an effective remedy. The Court has called for the investigation to be prompt and thorough enough to establish the circumstances of the disappearance and/or the killing and to include criminal investigations to lead to identifying and punishing those responsible. While the Court has not explicitly linked these standards for investigation with a duty to establish the truth, it has acknowledged that ineffective investigations onto acts of torture, enforced disappearances, and/or extrajudicial killings damage the prospects for establishing the truth about what happened.

All this suggests that the European Court of Human Rights has been shy of explicitly recognizing an autonomous conflict-related right to the truth, but it should be praised for requesting states to investigate allegations of violations of the Convention in a manner prompt for establishing contextual truth about human rights violations.

The Right to The Truth in the European Human Rights System: Now

After decades of stagnation in regulating the right to the truth as a norm of an international treaty, the codification of this right has seen its update with the adoption of the Disappearance Convention 2006. The Convention regulates the right to the truth as a peace-time applicable right and introduces it as a concept of international human rights law. The Convention entails a right for victims of enforced disappearances and those directly harmed by such acts to know the truth about the fate of those missing and the circumstances of the disappearance, and obliges states to search for and locate the missing and their whereabouts (article 24), to investigate on the enforced disappearance, and to hold the responsible criminally accountable (articles 6 and 7) and bring them to justice (article 3).

A novelty in this updated codification of the right to the truth is the implication of the freedom to seek, receive and impart information as a derivative right of the right to the truth (Preamble), hence interlinking these two rights. The ECtHR[1] has followed, yet selectively, upon the updated regulation of the right to the truth in its adjudication on the case of El-Masri v FYROM[2]. As this case deals with a peace-time detention and temporary disappearance of a person under state powers, the Court has addressed the right to know what happened as a right applicable in a non-conflict context, while naming it for the first time explicitly a right to the truth per se. Yet, while the Court may have implicated a possibility for an interrelation between the right to the truth and the right to seek and retrieve information, it has found no need to address the alleged breach of the freedom of expression, and the right to obtain information accordingly.

The Court has yet acknowledged explicit correlation between the duty to adequately investigate instances of extrajudicial detention and allegations of torture and the right to the truth. It has noted, in this context, that the duty to investigate should aim to establish the truth, hence failing to effectively investigate negatively impacts the victim’s and the people’s right to know the truth. This acknowledgment reciprocates the UN policies which call for prompt investigations to address gross violations of human rights and acknowledge the interrelationship between the right to the truth and the right to access justice and effective remedies, including through accessing investigations. The Court’s recognition that the general public and the broader communities have a right to know also reciprocates the regulations on the right to the truth in soft international law (Impunity Principles, UN Resolutions and Reports) which recognizes the peoples and broader communities as beneficiaries of the right to the truth.

All this suggests that the European Court of Human Rights has followed up, yet in an implicit and noticeably shy manner, on the updated regulations on the right to the truth in the international normative and institutional decision-making. While the Court should be praised for explicitly naming the right to the truth and for acknowledging the collective importance of establishing and revealing the truth about state misconduct in violation of the Convention, it is a shame that it has remained reluctant to confirm an interrelation between this right with the freedom of expression. In the Covid-19 context, this interrelation may constitute preventive protection of the right to life by obliging states to effectively investigate the causes, the effects and the preventive measures on the virus, hence imposing cumulative responsibility for states to provide the public with access to accurate information about the occurrence of a deadly virus and to undertake effective, independent and prompt investigation so to provide the families of those who suffer the most casualties with the truth about the treatment and the circumstances regarding the virus-related death of their relatives.

Natasha Stamenkovikj holds a Ph.D. from Tilburg University, an LL.M from The University of Edinburgh and a M.Sc. from the University of Oxford. She has worked with the Humanitarian Law Centre and the Macedonian Young Lawyers’ Association. Natasha’s research focuses on the interaction between law and society, and the socio-legal application of law in democratization processes. She writes about the role of legal norms, institutions, and systems in advancing human rights protection, justice-delivery, and good governance.

[1] European Court of Human Rights

[2] Former Yugoslav Republic of Macedonia

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