Master‟s in International and European Law: Public International Law (LLM track)
Master thesis Academic year 2016-2017
Mass graves in Spain: an issue to be resolved
Towards silence and oblivion or towards solving and dignity?
FERRAN FORCADA JIMÉNEZ
Submission date: July 28
th2017
Thesis Supervisor:
Dr. MARKOS KARAVIAS
Abstract
The purpose of this research is to analyze if the following primary obligations: the right to respect for private and family life, the right to an effective remedy and the right to know the truth of the relatives of the missing persons during the Spanish Civil War and the subsequent Franco’s dictatorship who lie in mass graves have been disregarded by the Spanish state. This study will analyze through and evaluative and advisory research method the different approaches applied by the European Court of Human Rights when addressing the aforementioned rights in cases of enforced disappearances. This paper argues about the reduced case-law produced by the ECtHR on the Franco era enforced disappearances since up to date, all the applications have been rejected as out of time. In addition, it will lastly deal with the relationship between law and Historical Memory and how Spain has dealt with this issue.
Table of Contents
LIST OF ABBREVIATIONS ... 4
CHAPTER 1: INTRODUCTION ... 5
1.1 Goals of Research ... 5
1.2 Research methodology ... 8
CHAPTER 2: ANALYSIS OF THE LEGAL FRAMEWORK AND THE RELEVANT ECtHR CASE-LAW REGARDING THE PRIMARY OBLIGATIONS VIOLATED BY SPAIN ... 8
2.1 Introduction ... 8
2.2 The admissibility criteria ... 11
2.3 The Right to respect for private and family life ... 18
2.4 The Right to an effective remedy ... 24
2.5 The Right to know the truth ... 29
2.6 Conclusion ... 32
CHAPTER: 3 THE RELATIONSHIP BETWEEN LAW AND HISTORICAL MEMORY ... 33
3.1 Introduction ... 33
3.2 Definition of the concept Historical Memory ... 33
3.3 The Spanish model ... 35
a) Model of Oblivion ... 35
b) Trauma theory ... 36
CHAPTER 4: CONCLUSION ... 38
List of Abbreviations
ARMH Asociación para la recuperación de la
memoria histórica.
BOE Boletín oficial del estado
ECHR Convention for the Protection of Human
Rights and Fundamental Freedoms
ECtHR The European Court of Human Rights
IACrtHR Inter American Court of Human Rights
CHAPTER 1: Introduction
1.1 Goals of research
The 18th of July of 1936 the Spanish Civil War1 broke out when an insurgent military group headed by General Francisco Franco was responsible for the coup d’état against the legitimate democratic government putting an end to the period known as The II Republic. Subsequently, after Franco´s victory, a military dictatorship was established until 1975. During this period, numerous people were victims of enforced disappearances; they were killed and buried in mass graves. To date, thousands of victims lie in mass graves without having been identified.2
In the collective Spanish memory, I would dare to say, a feeling of general powerlessness, exhaustion and incredibility towards the last Spanish governments since the restoration of the democracy exists. Not only towards the legislative and the executive, but also to some degree to the judiciary which has never granted any kind of substantial reparation to the victims. In this study, victims should be understood as the relatives of the missing persons during the Spanish civil war and the subsequent Franco’s dictatorship who lie in mass graves and not the disappeared themselves. It is for that reason that the addresses of my thesis will be the relatives of the missing persons in order to provide them with an analysis of the existent relevant case-law and possible legal solutions to be taken.
From a historical point of view, the existence of a three-year war period and the subsequent 36 years of a repressive, bloody and ferocious dictatorship are the main cause for the existence of mass graves spread across all the Spanish territory. The fascists endeavored what is known as “el movimiento redentor de nuestra patria”3
– the
redeeming movement of our fatherland-; to pursue their aim they used all kinds of
repression and terror acts over the population, these acts should be deemed as structural elements of the Franco’s regime in order to restrain any other political ideology and to ensure its existence.
1 ACKELSBERG, Martha A. Spanish Civil War. The Encyclopedia of Political Thought, 2015. 2 JUNQUERA, Natalia. España se resiste a juzgar el franquismo. El País, 2013, vol. 5.
3
PRESTON, Paul. El holocausto español: odio y exterminio en la Guerra Civil y después. Debate, 2011. pp. 616.
Both sides, on the one hand the Franco’s sympathizers also called fascists and in the other hand the Republicans carried out atrocious mass crimes such as enforced disappearances.
According to the former judge of the Audiencia Nacional4, Baltasar Garzón a total of 114.266 persons between the 17th of July 1936 and December 19515 were victims of enforced disappearance and a considerably part of them lie in mass graves.6
Indeed, this is not a closed number because it is extremely difficult to quantify precisely the exact number of victims of enforced disappearance and it is even more difficult to quantify the number of missing persons who lie in mass graves.
Enforced disappearances were a method of political persecution used regularly by the fascists in order to silence their opponents and therefore it was not just a collateral damage but the method par excellence.
In this research, the concept of mass graves plays a central role. This element exemplifies the embodiment of the enforced disappearances which were committed during Franco’s dictatorship; they could be deemed as the crimes scenes. They represent a clear example of human indignity since the corpses which lay underneath have not been buried respectfully.
The term mass grave is not an easy notion to depict, albeit it looks like simple. A great debate is currently in process to find the best definition of what should be deemed a mass grave7. According to Mant8, a mass grave is “a site where two or more bodies
were buried in a physical contact with each other”. Conversely, Schmitt9
makes use of more anthropological vision and pays attention to the characteristics shared by the dead.
4 Article 65 (1), Ley Orgánica 6/1985, de 1 de Julio, del Poder Judicial. Published in «BOE» núm. 157, de
02/07/1985. The Audiencia Nacional is the Spanish Tribunal which is competent regarding crimes that have a state scale.
5
This year represents the commencement of a new era in the Spanish history because Franco`s dictatorship opened to the international community.
6 FERRÁNDIZ, Francisco. De las fosas comunes a los derechos humanos: El descubrimiento de las
desapariciones forzadas en la España contemporánea1/From Mass Graves to Human Rights: The Discovery of Forced Disappearances in Contemporary Spain. Revista de Antropología Social, 2010, vol. 19, pp. 168.
7 O'BRIEN, Eadaoin. The exhumation of mass graves by international criminal tribunals: Nuremberg, the
former Yugoslavia and Rwanda. 2011.Irish Centre for Human Rights, School for Law. National University of Ireland Galway. PhD Thesis supervised by Ray Murphy. pp.59
8 MANT, Arthur K. Knowledge acquired from post-war exhumations. Death, decay and reconstruction: Approaches to archaeology and forensic science, 1987. pp.72
9
SCHMITT, Stefan. Mass Graves and the Collection of Forensic Evidence: Genocide, War. Advances in
He defines the concept of mass grave as “one that the remains of more than one victim
who share some common trait connected with the cause and the manner of the death”.
As far as I am concerned, I will be inclined towards this definition since the Spanish mass graves are plenty of people which were murdered for the same cause, i.e. for their political ideas and that most of the times by means of the same method which was the execution by firing squad.
The purpose of this research is to analyze if the following primary obligations: the right to respect for private and family life, the right to provide and effective remedy and the right to know the truth – albeit the latter is only enshrined as such in the International Convention10 for the Protection of All Persons from Enforced Disappearance serving as a guideline for the ECtHR- of the relatives of the missing persons have been disregarded by the Spanish state.
The research question for my thesis follows as whether the Spanish state is responsible for its current inactivity in order to open mass graves and its failure to provide an effective remedy for the relatives of the missing persons. From this question, two implicit sub questions came up, the first one revolves around the internal policies of the Spanish government towards the mass graves and the second one hinges upon the assessment of the remedies, if any, provided to the relatives of the disappeared.
My thesis will be framed mainly within the discipline of international Human Rights Law. However, other fields of law such us International Responsibility and International Humanitarian Law will be considered to give and adequate and accurate analysis, if necessary.
It is important to point out that the Spanish society and several organizations have had a huge impact on the creation of a truth-seeking process. However, this has not been leaded by public institutions and the Spanish government rather than liaising with the Spanish society have tried to hamper it. Hence, I believe that this process has not been properly done in Spain and thus I will analyze the shortcomings which need to be redressed.
Finally, it must be noted that although I am not a direct victim according to the notion provided in the paragraphs above, I picture myself as an indirect victim for the
10 UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, available at: http://www.refworld.org/docid/47fdfaeb0.html
following reasons. Firstly, as an individual being part of the Spanish society and after realizing an introspection process, I think and feel that the suffer and powerlessness of the victims is shared by numerous Spanish –myself included- who think that this is a major problem which affects not only the them by the entire Spanish society. Secondly, as a descendent of people who suffered during the Spanish civil war and the subsequent dictatorship, I consider that I have the right to know the collective historical memory of my country.
1.2 Research methodology
The research for this thesis has been executed analyzing different international legal sources such as regional and universal human rights instruments, judgments of human rights courts, assessments of human rights committees, reports by international organizations and NGOs. Furthermore, I have made use of different Spanish legal sources such as domestic legislation, pronouncements of Spanish Courts, written narratives of victims and academic papers.
This thesis would combine two types of research methods which are on the one hand an evaluative research method in order to describe what has been done in the field of enforced disappearances and missing persons concerning Spanish victims specifically but without leaving behind what has been considered in similar cases and on the other hand, an advisory research method aimed at indicating what should the victims do in order to be compensated and keep their legal fight. In the last chapter, I will deal with the relationship between law and historical memory, pointing out the Spanish model- Model of Oblivion- from a critical analysis.
CHAPTER 2: Analysis of the Legal Framework and the
relevant ECtHR case-law regarding the primary
obligations violated by Spain
International human rights law is a tool which serves as a limit for state’s governments with regard to the acts they carry out to deal with the legacy of previous authoritarian regimes characterized by systematic human rights abuses.11
The European Convention of Human Rights, since its enactment in 1951, has served as a mechanism of transitional justice in order to seek redress for human rights violations committed during the most atrocious periods of Europe’s history such as the World War II, the fall of the Communist regimes and the aftermath of the Balkan conflicts. However, other occurrences such as the Spanish Civil War and the human rights violations committed during Franco’s dictatorship have been barely addressed in the ECtHR since most of the claims have been dismissed as out of time.12
States, in situations of transition frequently tend to consider social cohesion, stability, security and reconciliation as a priority instead of the enforcement of human rights norms. In light of the above, the ECtHR has dealt with situations ruling on memory, truth and also lustration issues which will be further discussed.13
According to Eva Brems, it might be discussed that in transitional justice situations, the high-level political spheres are in charge of making the necessary arrangements in all the fields to switch from a dictatorship to a democracy and therefore the position of the judiciary should be reduced and left behind. However, in a scenario where the political spheres which deal with these arrangements are the same of the previous regime because any lustration mechanism has been carried out, it might be accepted that that the judicial bodies should act.14 In the Spanish case, any lustration policies have been carried out since Franco’s Ministers continued in office after the Transition.
In this chapter, I will first define several core concepts which will be used throughout my study according to the international legislature and I will assess through a legal analysis the position of the ECtHR in respect to the violation of the right to respect for private and family life enshrined in article 8 of the ECHR15, to the violation of the right
11 BREMS, Eva. Transitional justice in the case law of the European Court of Human Rights. International Journal of Transitional Justice, 2011, vol. 5, no 2, pp. 282.
12 GIL GIL, Alicia. Los crímenes de la guerra civil española:¿ Responsabilidad del Estado Español por
infracción del Convenio Europeo de Derechos Humanos?. 2012. Pp. 4.
13
See Supra Note 11. Pp. 283.
14 Ibid. Pp. 285.
15 See Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.refworld.org/docid/3ae6b3b04.html (Accessed 20-05-2017).
to provide an effective remedy enshrined in article 13 of the ECHR and from a general point of view the indirect violation of the right to know the truth which is not enshrined as a such in any international legal instrument binding for the Court but which has a primordial importance regarding the relatives of missing persons. It should be borne in mind that these rights will be assessed from the perspective of the relatives of the missing persons who are entitled to benefit from them.
In Spain, as mentioned in previous chapters, thousands of people were victims of the crime of the enforced disappearances by the Spanish Francoist16 authorities. According to the Article 2 of the International Convention17 for the Protection of All Persons from Enforced Disappearance which entered into force the 23rd of December 2010 to which Spain is a contracting party since its ratification the 29th of September 2010, enforced disappearance” is considered to be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.
This Convention will not be applied by the ECtHR since it has a particular enforcement procedure carried out by a Committee, however, I consider relevant to mention it in terms of conceptualizing the acts which are the cause of the subsequent infringement of the rights which will be object of analysis.
With regard to the victims of the crime of enforced disappearance, it will be understood as the category of victims, the missing persons along with their relatives. The notion of missing persons is generally conceived as individuals of whom their families have any information of their whereabouts, the cause of the death and the perpetrators of the acts. These people have been declared missing due to the existence of an armed conflict
16 According to the English Oxford dictionary it means everything relating to or characteristic of the
principles and policies of the Spanish dictator General Franco. Oxford University Press: https://en.oxforddictionaries.com/definition/francoist (Accessed 30-05-2017).
17 UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, available at: http://www.refworld.org/docid/47fdfaeb0.html
whatsoever nature it has or a situation of internal violence which cannot be considered as a non-international armed conflict due to the intensity of the violence18.
As for the notion of relatives of the disappeared, in principle, the Spanish domestic law should contain a definition in order to determine until which degree a person can be considered a relative. Nevertheless, the domestic legislation regarding this matter such as the Law of Historical Memory and the Act19 5/1979 of 18th September which grants a subsidy to the relatives of the deceased during the Spanish Civil War remains silent to this respect. In addition, the ECtHR has also failed to provide until which degree a person can be considered a relative; in its case-law it can be observed, for instance in the Varnava and Others v. Turkey, that the brother, sister, wives and parents of the disappeared are deemed as relatives, but there is not a general rule.20 It must be noted that all the relatives the missing persons had a relationship with which can constitute family life should be entitled to protection. The ECtHR has upheld in cases such as Marckx v. Belgium or Boughanemi v. France that family life exists between children and their grandparents, siblings, etc.
In order to delimit the conceptual scope of the enforced disappeared, I will focus on those who ended up in mass graves and whose relatives know with certainty that their corpses lie therein.
2.2 The admissibility criteria
It is worth noting that several applications21 against the Spanish state have been lodged before the ECtHR regarding this matter. However, up to date all of them have been dismissed as out of time and on account of the limits of the Court’s jurisdiction ratione
temporis.
18 ICRC. “Missing persons. A handbook for parlamentarians” (2009). Handbook for parliamentarians nº
17. Available at: https://www.icrc.org/eng/assets/files/other/icrc_002_1117.pdf pp.9
19
In spanish and in its oficial name: “Ley 5/1979, de 18 de septiembre, sobre reconocimiento de pensiones, asistencia médico-farmacéutica y asistencia social en favor de las viudas, y demás familiares de los españoles fallecidos como consecuencia o con ocasión de la pasada Guerra Civil”. B.O.E, núm. 233, de 28 de septiembre de 1979
20 ECtHR. 18th September 2009. Varnava and Other v. Turky. Applications nos. 16064/90, 16065/90,
16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90. Para. 199.
21
“Decisión del TEDH en el caso Gutiérrez Dorado vs. España: luces y sombras”. Rights Iinternational Spain:http://www.rightsinternationalspain.org/uploads/publicacion/f893f36547a757264deca19d70abf3e4 8ae19ae5.pdf (Accessed on 10-07-2017).
On the one hand, I will focus on two Spanish cases which are the Gutierrez Dorado and Dorado Ortiz v. Spain case22 and Canales Bermejo v. Spain case23 and I will argue that the Court was not right at dismissing them since the arguments used are not solid enough. On the other hand, on the basis of the ECtHR existing case-law regarding the violation of the same rights in similar scenarios, I will evaluate how the Court should have ruled in connection to the Spanish cases. I want to remark that I have chosen both cases because they touch upon the rights which are object of analysis in my thesis. First of all, I consider it necessary to introduce how article 35 of the ECHR works and which are the relevant procedural grounds for inadmissibility in the cases chosen: the non-compliance with the six-month time-limit and the incompatibility ratione temporis. Article 35 (1) stipulates that the Court may only deal with the matter when the local remedies have been exhausted and within a period of six months from the date on which the final decision was taken. This public policy rule sets a six-month period which runs from the final decision which exhausts the local remedies. This rule is autonomous and has to be applied on a case by case basis. The period starts running from the date the applicant heard about the decision and not the exact day the decision was made.24
On the other hand, jurisdiction ratione temporis encompasses only the period after the entry into force of the Convention in the respondent State. According to the principle of non-retroactivity of the treaties, the provisions of the Convention are not applicable to acts which happened or situations which ceased to exist before the ratification of the Convention by the state in question.25
In the following paragraphs, I will analyze the arguments used by the Court to reject the cases.
First of all, the Court dismisses both cases on account of an argument which as far as I am concerned hangs by a thread. The Court argues that the unduly delay by the relatives of the missing persons to lodge an application before the Court is the main reason to dismiss the case. This unduly delay is based on the obligation imposed by the judges on the relatives to make proof of a certain amount of diligence and initiative in
22
ECtHR. 27th March 2012. Gutierrez Dorado and Dorado Ortiz v. Spain case. N º 30141/09.
23 ECtHR. 8th November 2012. Canales Bermejo v. Spain. N º 56264/12. 24
“Practical guide on admissibility criteria”. Council of Europe/European Court of Human Rights (2014): http://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf (Accessed on 12-07-2017) pp. 29-32.
order to contact the competent authorities to conduct and effective investigation after the occurrence of the facts or if it was not possible such as in Spain as soon as possible it was; besides, it is also imposed the obligation to apply to the Court in a short period since the occurrence of the facts or just after it existed the possibility to do so. In words of the Court, the relatives have “the duty to display due diligence and to bring their case
before the Court without undue delay26.” The decision of the Court is in the line of the Varnava and Others v. Turkey case which is relevant to this matter since it establishes which is the period of time considered enough to determine that an undue delay has taken place. It is ascertained that when more than ten years have elapsed since the occurrence of the facts after the lodging of the application, this to be accepted, it has to be proven that new evidence has come up.
It must be pointed out paragraph 166 of the Varnava and Other v. Turky case27 which describes two scenarios which need to be assessed from the angle of the Spanish situation. Some might argue that both situations are not comparable since on the one hand, it is dealt with a situation of occupation as a result of an international armed conflict and on the other hand with a transitional situation. However, I disagree.
In the light of human rights protection, the interpretation of treaties and the analysis of jurisprudence have to be broad and always in favor of those who suffered human rights abuses. States due to their far-reaching influences in all fields – also in the legal sphere- are always in a more advantageous position than individuals. It must be accepted that in the early eighties Spain did not go through a situation of occupation because the democracy was reenacted, however, at that time the situation was exceptional.
In a normal transitional period, the aforementioned duty imposed on the relatives would be acceptable since the main characteristics of this period are the accountability for human rights violations, measures addressed to establish justice for victims, the creation
26 ECtHR. 27th March 2012. Gutierrez Dorado and Dorado Ortiz v. Spain case. N º 30141/09. Para. 39. 27
ECtHR. 18th September 2009. Varnava and Other v. Turky. Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90.
of truth-finding commissions, policies of memory, measures condemning trivialization, etc.; and as a result, they would have felt in the perfect setting to go before the Courts.28
Nevertheless, in Spain the transition model was radically opposed based on the Model of Oblivion which will be further discussed in the next chapters. Overnight, the francoist majors and deputies became democrats and there was not any transformation in the judiciary either. In such situation, it was quite improbable that the relatives of the missing persons could channel their concerns and seek for justice and therefore a huge amount of time elapsed until they took the first legal actions. On top of that, right at the begging of the democracy, the attempted coup d’état leaded by the Lieutenant Colonel Antonio Tejero on the 23rd of February of 1981 inaugurated what has been called “the suspension of the memory” which even more hindered relatives` initiatives.29
In the first years of the Transition, few relatives opened or tried to open some of the Republican mass graves on their own without having any kind of institutional or economic support. It was a tumultuous political period and there was not any legal certainty regarding all the exhumations which were carried out. The Spanish government, during the first years of the democracy, did not take any serious initiative to start a process of disinterring the corpses located in mass graves which as far as I understand it would have been the first step to be taken to dignify their relatives.
Conversely, in other transitional situations, the process followed was completely different. For instance, it is relevant to mention the lustration cases concerning the transitional situations in the communist European countries which took place in the eighties. The term lustration comes from Latin lustratio and means purification by sacrifice; it was a measure adopted by several communist European countries in order to impede officials and collaborators of the former communist regimes from positions of public relevance within the political system of a state after a subversive change of government.30 The ECtHR ruled on lustration in several judgments which touched upon measures of transitional justice and human rights protection measures. The court accepted the legitimacy of lustration; however, it upheld that the people affected by
28 CLOSA MONTERO, Carlos. Study on how the memory of crimes committed by totalitarian regimes in
Europe is dealt with in the Member States. Institute for Public Goods and Policy Centre of Human and Social Sciences CSIC, 2010. pp. 19.
29 MAESTRE, Francisco Espinosa. Contra el olvido: historia y memoria de la guerra civil. Grupo Planeta
(GBS), 2006. Pp. 177.
30
BOED, Roman. An evaluation of the legality and efficacy of lustration as a tool of transitional justice. Colum. J. Transnat'l L., 1998, vol. 37, p. 357-358.
such measures had to benefit from all procedural guarantees under the ECHR in order to avoid unsubstantial purges.31
For instance, one lustration measure was restricting the right to be a candidate in democratic elections to those who hold any public position in the previous regime. The Court has ascertained that these restrictions cannot be broad and have to be linked to individuals and not an entire category of people. According to Brems “The ECtHR held
that the reference to „former KGB agents‟ was too broad, as it does not distinguish according to the time of employment, the specific tasks that were assigned to a person or the person‟s individual behavior”32
. In connection the Spanish case, in a hypothetic
scenario where a process of lustration had been implemented, these measures could not have been applied to all the francoist officials but to those who carried out any relevant activity which enabled human rights abuses.
Coming back to the comparison of the Turkish occupation and the Spanish transitional period, exceptionality is the main argument to make a link between both situations. In my opinion, when it comes to human rights abuses, it does not matter the circumstantial conditions –either the occurrence of an international armed conflict, a non-international armed conflict, internal violence, a fake democracy, etc- which caused an exceptional situation but the existence of such situation itself. What matters is the final result which is to live in an exceptional situation which means that one cannot do what a person would do in a normal situation.
Therefore, regardless of the means which have led us to exceptionality, either a situation of occupation or a transitional situation based on the Model of Oblivion, human rights continue to be at stake and all the possible mechanisms have to be granted to the victims to seek for redress.
With regard to the scenarios presented in the Varnava case, the first one concerns the hypothesis where there is an absence of any investigation and any meaningful contact with the Spanish authorities; in that case, it may be expected from the relatives to file a claim within the first years. This was the case in Spain since any official investigation
31
See Supra Note 11, pp. 295.
was conducted after Franco`s death and there is no evidence of any meaningful contact with the judiciary or local or national institutions.
The second one represents a scenario where investigations were carried out by the authorities albeit without any result. This scenario was not the Spanish case at all. Although, some may argue that several investigations were conducted, it has to be noted that they were done to play to the gallery.
In view of the foregoing, this ten years’ jurisprudential time-bar has no fundament and is inconsistent to the spirit of the Convention which is the protection of human rights in a manner that renders these rights effective rather than theoretical and utopic.
The Court also remarks article 35.1 of the ECHR concerning the six-month rule to dismiss the claim arguing the extemporaneous character of it. However, the ruling33 which exhausted the local remedies at that time was passed the 2nd of December 2008 which does not equate to six months before the file of the claim on June 1st 2009. On top of that, at any time the Court specifies the date which sets the start of the six-month period.
To my understanding, the implicit argument used by the Court is that indeed it exists for the Spanish authorities 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”34 but this obligation vanishes when the relatives of the disappeared are not diligent and file a claim with undue delay.
In reverse, the Inter American Court of Human Rights in the judgment35 Godínez Cruz v. Honduras points out that “an investigation must have an objective and be assumed by
the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective
33 See the decision of the 2nd December 2008 of the Plenary of the Audiencia Nacional relinquishing
jurisdiction to local courts.
34 ECtHR. 27th November 2007. Brecknell v. the United Kingdom. Nº 32457/04. Para. 69. 35
Inter-American Court of Human Rights (IACrtHR). 20th January 1989. Godínez Cruz Case , Inter-Am.Ct.H.R. (Ser. C) No. 5 (1989).
search for the truth by the government”. As it might be concluded, the Inter American
Court does not impose such procedural obligation on the victims and adopts a less restrictive approach in favor of the victims.
In the Canales Bermejo v. Spain case, the rejection of the claim is based on the same arguments as I previously mentioned, the court without any exhaustive analysis dismiss the claim referring to mutatis mutandis to the arguments expressed in the Gutierrez Dorado and Dorado Ortiz v. Spain case. Surprisingly, the activities carried out by the applicant were completely different since he took initiative and started an investigation by his own, albeit late according to the Court.
As far as I am concerned, it could be accepted that the Court did not construe correctly article 35 (1) of the Convention in the Spanish cases. In the Varnava and Others v. Turkey case, the Court concludes that the applicants acted with reasonable expedition for the purposes of article 35 (1) and hence the application was not dismissed. It was argued that on the basis on an exceptional situation of an international conflict, at that time, there were not normal investigative procedures and therefore, it was reasonably acceptable for the applicants to await. Following this line of argumentation, in the Spanish cases the Court should have determined that on account of the characteristics of the Spanish Transition and the subsequent years, the instauration of the Model of Oblivion into the society, it should have been reasonable for the purposes of article 35 (1) to wait that many years because the situation was also exceptional.36
In addition, if it is accepted that “the alleged violation constitutes a continuing situation
against which no domestic remedy is available, it is only when the situation ends that the six-month period starts to run”37. It will be argued in the next sections that although domestic remedies are available, none of them has been effective. Therefore, this could be another argument to base the claim.
Therefore, possible next applications regarding the same facts and claiming the violation of the same rights can refute the argument of the Court regarding the unduly
delay, stating that in exceptional situations it should not apply and in addition that in
36 See Supra note 35, para. 170. 37 Ibid. Para. 159
violations of a continuing nature where the breach is ongoing, article 35 (1) should be applied in a restrictive way.
At this point of my discussion I will assess how the ECtHR has ruled on cases with similar facts regarding the violation of articles 8 and 13 of the Convention.
2.3 The right to respect for private and family life
There is no doubt that the applicants have gone through a process of suffering on account of the lack of information regarding the whereabouts of their relatives, the inactivity of the Spanish authorities at the beginning of the transition to carry out investigations and the recent judicial setback by the Spanish Supreme Court which will be further commented. Indeed, this has caused grave consequences on his familiar and private life.
The ECtHR has delimited the scope of the concept of “private life”; it has to be construed as a notion which “includes a person's physical and psychological integrity
and can sometimes embrace aspects of an individual's physical and social identity”.38
With regard to the concept of family life, it includes relationships of a social, moral and also cultural character. Furthermore, the mutual enjoyment by members of a family of each other’s company constitutes a fundamental element of family life; it is evident that this mutual enjoyment was not possible due to the disappearance39. Therefore, the relationship between the applicants and their deceased relatives was inexistent and they could never benefit from the mutual enjoyment of each other’s company. In addition, the right to respect for family life includes the right to have information regarding the whereabouts of the missing relatives.40
Indeed, the enforced disappearances of their relatives provoked on them a social stigma and humiliation which means that their personal social identity was affected since the
38
ECtHR. 7th February 2002. Mikulić v. Croatia, nº 53176/99. Para. 53.
39 ECtHR. 13th December 2012. El Masri v. The Former Yugoslav Republic of Macedonia, nº 39630/09.
Para 248.
40
rest of the population knew the circumstances occurred. It produced a mental anguish to the applicants which did not vanish with the passing of time.
The respect for private and familiar life also encompasses everything related to the funeral of the members of the family, i.e. to have a proper ceremony, to be able to assist, as well as the delivery of the mortal remains to the relatives41. Therefore, when there is not any possibility to have an honorable funeral because the mortal remains location is unknown or even if it is known their exhumation is not enabled, it might be accepted that an interference of the aforementioned right has been produced.
For the purpose of my discussion, it must be noted that in other ECtHR case-law regarding enforced disappearances, for instance in the Varnava and Other V. Turkey Case and the Janoweic and Others v. Russia case, the violation of article 8 is not alleged by the applicants and therefore there is not a broad jurisprudence of the aforementioned article with regard to enforced disappearances. Conversely, in Cyprus v. Turkey article 8 is alleged by the applicants but is not examined by the Court, this will be further examined.
In the Cyprus v. Turkey case, the Court determines that article 8 and article 3 of the Convention regarding the right not to be tortured or subject to inhuman or degrading treatment or punishment overlap vis à vis the aspect of having information of the missing relatives’ fate. This is one of the elements covered by the right to respect for family life. I must concede that this right is not object of analysis in my thesis, however the reasoning of the Court concerning this right is relevant in connection to the aspect of having information and therefore it will be examined due to the lack of jurisprudence on that right in the present context.42
The Court, therefore, does not make an independent legal reasoning of the article 8; it rather defends as valid the legal arguments used in the assessment of article 3. It did not consider necessary to make a legal construction as to whether article 8 had been disregarded since one of the legal protected goods by that article which is the
41 ECtHR, 30th October 2001. Pannullo and Forte v. France, nº. 37794/07. Para. 36; ECtHR, 14th
February 2008. Hadri-Vionnet v. Switzerland, Para 51 and 52. ECtHR, 12th November 2002. Ploski v. Poland, nº 26761795.
information about the missing relatives’ fate was sufficiently alike to the one granted under article 3 of the Convention.43
Nevertheless, it must be kept in mind that both rights are of a different nature, article 3 is an absolute right which can never be restricted and therefore a state can never justify its breach and on the other hand, article 8 is a qualified right which means that a public authority can interfere with the enjoyment of this right provided that it strikes to a right balance between the individual and the state interest.44 Although, the way those articles are construed is different, they can be complemented in order to give a broader protection to the victims.
In addition, other courts such as the Human Rights Court for Bosnia and Herzegovina – hereafter HRCBIH- have ruled on the same right. For instance, in the Unkovic v. Bosnia and Herzegovina case, the Court upheld that Article 8 of the Convention applied when the relatives asked information about the missing persons and therefore the state’s refusal to provide with that information constituted a breach of the aforementioned article.45
It might be accepted that the special factors which will be further mentioned to determine if a family member of the missing person received a treatment inconsistent with article 3 mentioned in the Varnava and Others judgment can also help to determine if they had an interference in their right to respect for private and family life.
If we analyze the factors46 exposed by the Court, we can conclude that the proximity of the family tie was fulfilled since the applicants in both cases are either the grandson or the son of the disappeared, in regards to the moment of the facts, for instance in the Gutierrez Dorado case, the applicant did not witness them on account of this short age, however his father disappearance changed radically his life. On the other hand, in words of the Court, the involvement of the family members in the attempts to obtain
43 Ibid para. 161.
44 “When can a public authority interfere with your human rights?”. Citizens Advice (2017). Available at:
https://www.citizensadvice.org.uk/law-and-courts/civil-rights/human-rights/when-can-a-public authority-interfere-with-your-human-rights/ (Accessed on the 21-07-2017).
45 GROOM, Dermot. The Right to Truth in the Fight Against Impunity’(2011). Berkeley Journal of International Law, vol. 29, pp. 182.
information about the disappeared person and the way in which responded to those enquiries is another crucial factor to determine the violation; there is no doubt that Mr. Canales did not desist and kept asking for information to different institutions, from the judiciary to the executive. The Spanish authorities answered in the negative or remained silence.
In the following paragraphs, I will define the concept of interference which has been mentioned in the previous paragraphs. Indeed, article 8(2) determines implicitly that the right to respect for family life is not absolute since public authorities might interfere with the article under some circumstances. A rigorous two-phased test needs to be conducted by the ECtHR to determine whether the interference can be justified on the basis of article 8(2).47
First, it must be determined if the facts that the applicant presents fall within the scope of the right to respect for family life; as it has been previously discussed at the beginning of the section the complaint falls within the meaning of family life.
Second, it must be established if the action taken by the state was in violation of article 8 and if it can be legally justified under paragraph 2 of the same article and more specifically:
- If it is in accordance with the law. - If it has a legitimate aim.
- If it is necessary in a democratic society.
In the Spanish case, rather than the action, it should we considered the omission committed by the Spanish state to conduct investigations of the whereabouts of the missing persons and to carry out exhumations. Therefore, it must be concluded that the Spanish state failed to take any action.48
47 KILKELLY, U. The right to respect for private and family life. A guide to the implementation of Article 8 of the European Convention on Human Rights. Human Right Handbooks nº1.Council of Europe.
(2001). Pp. 8-9.
48
Article 8 of the ECtHR contains both a positive and a negative obligation. On the one hand, the state must respect all the personal interests laid down in the provision, on the other hand, it has to avoid any interference which does not strike to a fair balance between the state´s interest and the interests of the individual.49
On the assumption that both Spanish cases were to be admitted, the applicant(s) would have to establish the fact which has produced an interference. In casu, it would be the failure of the state to conduct an investigation to locate the mortal remains of the disappeared and to carry out exhumations. In order to determine it, a specific test needs to be conducted.
First of all, it needs to be established if there is an interference in accordance with the law, i.e., the interference to be sustained, must have a legal basis and the provision has to be precise. The following paragraphs will deal with the domestic law, in particular, with the Act of Historical Memory, and will determine if it constitutes a legal basis.
On December 26th 2007 the Act 52/2007 which acknowledges, grants rights and establishes measures in favor of those who suffered from persecution or violence during the war or the dictatorship, also known as the “Law of the Historical Memory” was passed. In the preamble of the law, it can be inferred that it exists an individual right to the personal and familiar memory of every citizen which is subsequently proclaimed more extensively in article 2 of the law.
I will focus on the articles which touches upon the activities of localization and identification of the victims, that is to say, in relation to the right to respect for private and family life which are articles 11, 12, 13 and 14.
It must be pointed out that the wording of the articles does not confer rights to the victims but rather obligations on the public administration, i.e., to investigate, to locate, to identify, to elaborate maps of mass graves, etc. On top of that, the law does not contain any procedure of enforcement and this may lead us to think that the compliance of this law is not of a mandatory character and that the provisions only serve as mere guidelines.
49 Ibid. Pp. 21-22.
In addition to this law, the Ministry of Justice and the Ministry of Presidency created the Office for the victims of the Civil War and the dictatorship which several functions were attributed to50. One of them was to the identification of 2.382 mass graves and its subsequent categorization in 5 groups according to the interactive map that can be found in the official webpage called Memória Histórica.51. However, as usual, it was closed
shortly afterwards due to budgets cuts and the functions it was performing were never handed over to another organ.
As it must be seen, the law sets out activities which have to be carried out by the public administration, therefore, it will lead to an administrative practice. The ECtHR in Malone v. the United Kingdom52 upheld that activities regulated by administrative practice constituted a violation of article 8 since this practice was not clear enough, it gave a lot of discretion to the administration and it could be changed at any time. In addition, the law does not contain in depth how the location and identification measures should be conducted nor mention who would be in charge of the exhumations. Therefore, when there is not a statutory system which deals with such measures the Court has considered that this is not in accordance with the law. 53
Secondly, it must be established if the interference pursues a legitimate aim. The Spanish state could argue that the interference is justified in the interests of national security since it could reopen injuries and could create a tension environment in the Spanish society, however, investigations need to be conducted in order to overcome historical situations.
Finally, it has to be determined if the interference is necessary in a democratic society. The ECtHR upheld in Olsson v. Sweden what has to be understood by necessary, it concluded that “the notion of necessity implies that an interference corresponds to a
pressing social need and, in particular, that it is proportionate to the legitimate aim pursued”54
. The Court introduced the principle of proportionality which means “that the exercise of an individual‟s rights must always be checked by the broader public
50
See ORDEN PRE/3749/2008, de 22 de diciembre, por la que se da publicidad al Acuerdo de Consejo de Ministros sobre creación de la Oficina para las Víctimas de la Guerra Civil y de la Dictadura. Available at: https://www.boe.es/boe/dias/2008/12/24/pdfs/A51900-51901.pdf (Accessed 20-05-2017).
51
For further information, see: http://mapadefosas.mjusticia.es/exovi_externo/CargarMapaFosas.htm
52 ECtHR. 2nd August 1984. Malone v. the United Kingdom. Nº 8691/79. 53
See Supra Note 47. Pp. 26-27.
interest”55, in other words, there has to be a fair balance between the individual interest
and the interest of the state. In the Spanish case, despite the margin of appreciation of Spain, it must be concluded that the interference was not necessary nor proportionate since the interest of the individuals to know the whereabouts of their missing relatives prevails over the state interest; measures of restorative justice are necessary to overcome the past. Therefore, Spain breached its obligation under article 8.
2.4 Right to an effective remedy
Article 13 of the ECHR contains the right to an effective remedy which is the second primary obligation allegedly violated by the Spanish state. This article is aimed at increasing the judicial protection granted to individuals who wish to seek justice for an alleged violation of their human rights. This right represents the embodiment of the principle of subsidiarity which means that the ECtHR will only act when the domestic courts do not fulfill the duty to guarantee the Convention Rights and freedoms and when all domestic remedies have been exhausted by the applicants by virtue of article 35 (1) of the Convention which establishes this procedural rule.56
In the following paragraphs, I will present the legal process followed by the relatives of the missing persons which exhausted the local remedies. On December 14th 2006 several criminal complaints by the A.R.M.H and some other victims were lodged. The object of their claim was the existence of a systematic plan to annihilate political adversaries by means of executions, torture, exile and enforced disappearances during the Spanish civil war and the subsequent dictatorship.57
Two years later, on October 16th 2008, the Judge Baltasar Garzón who was the investigating judge of the Audiencia Nacional by that time, recognized jurisdiction on the basis of a legal fiction which consisted in categorizing the facts, i.e., the enforced disappearances as permanent crimes whose effects were still having consequences. This understanding is consistent with the jurisprudence of human rights committees and the
55
See Supra Note 47. Pp. 31.
56
KUIJER, Martin. Effective remedies as a fundamental right. En Seminar on human rights and access to
justice in the EU, Barcelona. 2014. pp. 1
international legal instruments on the matter.58 Garzón ordered the start of exhumations or the continuation for those which have been already carried out by private actors under the guidance of the local courts where the mass graves were located.
Nonetheless, on November 18th the same Court issued a new decision relinquishing jurisdiction to the local courts of the municipalities since it concluded that the alleged authors of the crimes which were object of analysis were dead and in consequence any individual criminal responsibility could be attributed to anyone. This can lead us to wonder why this conclusion was not also reached by the local courts. The fact is that the Court concluded that there was an extinction of any criminal responsibility but it declared that the ongoing effect of the perpetration of the criminal offence would have consequences until the finding of the corpses and therefore, it needed to be ceased.59
Subsequently, a total number of 47 local proceedings were initiated60. However, only in 2 cases investigations to locate and identify the mortal remains were conducted. The rest were stayed and some other were suspended until the Supreme Court decision61 on the 28th of March 2012 which was issued after two local courts refused to accept the cases passed by the investigating judge of the Audiencia Nacional.
The decision affirmed the lack of jurisdiction to review the cases on account of three factors:
- The irretroactivity of criminal law since at the moment of the occurrence of the facts the applicable law was different.
- The prescription of the crimes since it did not categorize them as permanent crimes.
- The amnesty law, in particular on account of articles 1 a) and 2 f) which extinguished any kind of responsibility to the perpetrators.
58 SALSENCH I LINARES, Samantha. Francoism Facing Justice. Journal of International Criminal Justice, 2013, vol. 11, no 2. Pp 472.
59
Decision of 18th November 2008. Juzgado Central de Instrucción núm 5, Audiencia Nacional. Pp.21 “debe (…) declarar la extinción de responsabilidad penal por muerte de aquellos que se encuentren en esa situación y, de otra, declarar la vigencia del estado de consumación del ilícito hasta que se producen el hallazgo de la víctima, la acción de investigación o la acción institucional para hacer cesar el estado típico y antijurídico generado por la acción culpable de aquellos”.
60 Amnesty International, “Casos cerrados, heridas abiertas. El desamparo de las víctimas de la Guerra Civil y el Franquismo en España”. In sección española de Amnistía Internacional. 09-05-2012. Available
at:https://doc.es.amnesty.org/cgibin/ai/BRSCGI/441101126297%20Informe%20heridas%20abiertas?CM D=VEROBJ&MLKOB=31218154242 pp. 37.
Moreover, it concludes that the local courts will have to face the same problems and therefore they also lack jurisdiction.
Nonetheless, the decision provided the victims with alternative remedies outside the criminal jurisdiction which will be further analyzed.62 First of all, the Court points out that they can avail themselves of the Law of Historical Memory which does not provide an effective remedy and any subjective rights to the victims.
Articles 4 and 5 of the Law refer to forms of reparation; the former is really vague and introduce the concept of declaration of reparation and personal acknowledgment which is merely a document issued by the Ministry of Justice in order to honor those who suffered persecution or any other kind of violence during the war and the dictatorship and the latter gives a sort of reparation to the relatives of the deceased on the occasion of the Spanish civil war and remains silent regarding the deceased during the dictatorship on the hands of the Spanish national authorities.
As it is seen, the only from of reparation provided is the issue of a document, just this symbolic fact which does not entail any form of economic compensation or any legal action against the author of the crimes to give satisfaction to the victims.
Secondly, it refers to mechanisms provided in the civil jurisdiction which just have a declaratory character without being imposed the obligation of taking further actions. Finally, the Court alludes to another mechanism which as far as I am concerned it is quite tricky; it enables the investigating judges to conduct investigations to set the date of the occurrence of the criminal acts and if necessary, the identification and localization of the corpses. It expresses the respect for the human dignity of everybody enshrined in article 10.1 of the Spanish Constitution63 as well as the necessity of taking those actions due to mortuary policies. On the other hand, it states that “the rest of those
who could have suffered violent deaths cannot remain anonymous and cannot lie outside the proper burial sites. Nor it has to be imposed on the relatives the prejudice caused in such situations which are moral and legally untenable”. However, all these
actions will only be possible if there is a current claimable criminal responsibility which means that all this restorative and courageous discourse made by the Court remains
62 Ibid, pp. 4.
63
Constitución Española de 27 de diciembre de 1978. B.O.E., núm. 311 de 29 de diciembre de 1978, vol. 311.
ineffective because as previously mentioned any criminal responsibility is extinguished.64
In conclusion, the decision of the Supreme Court of the 28th March 2012 barred any possibility for the victims to seek for justice and therefore it can be deemed as the national decision which exhausted all domestic remedies. This is a sine qua non condition to lodge an application before the ECtHR according to article 35 (1) of the Convention.
The ECHR has upheld that when an individual claims a relative’s infliction of torture as a result of its disappearance, the notion of the right to an effective remedy entails an exhaustive and efficient investigation which leads to the identification and punishment of the authors and also includes the effective access by the applicant to the investigation process. In the ruling of Aksoy v. Turkey case65, the Court concluded that:
“The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13. Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.”
In virtue of the above, de lege lata, it flows from torture a positive obligation for the state which consists in investigating the facts leading to torture and punishing the perpetrator, however, it might be accepted that de lege ferenda, in the Spanish case, the obligation should be broader and should include the obligation to conduct an investigation to open the mass graves where lie the missing persons who suffered torture prior to their enforced disappearance.
As it may be seen, the right to an effective remedy is a secondary right since a violation of another primary obligation is necessary to be triggered. In the previous case the violation of article 3 of the Convention triggered the application of article 13 which imposed the obligations to conduct an investigation.
64 MANJÓN-CABEZA OLMEDA, A. Las posibilidades legales de la memoria histórica. Revista Electrónica de Ciencia Penal y Criminología, 2012, pp 22.
It can be inferred from article 13 that it has to be first a national remedy and that this has to be effective in practice as well as in law which means that its exercise cannot be hampered by the national authorities.66
The Spanish national authorities have never provided Mr. Canales and Mr. Gutiérrez Dorado with relevant and useful information about the fate of their missing relatives. The only actions taken by the Spanish authorities have been the enactment of the Law of Historical Memory which stipulates that the identification and localization of the disappeared and the mass graves where they lie have to be conducted by the public administration and not by the judiciary, in fact, the law does not even impose an obligation, it only provides general principles as it has been previously discussed. It is obvious that the administrative organs cannot lead and investigation process to identify and punish the author(s) of the crimes which imposes article 2 of the Convention regarding to the right to life but nor an investigation with all the proper safeguards to exhume the corpses since they do not have this prerogative; only the Courts can order an official exhumation of mass graves and can decree the removal of the cadavers.
It is relevant to mention article 9 of the Declaration on the protection of all persons from Enforced Disappearance67 which might help us to understand what the Spanish authorities should have done and they did not. They failed to determine the whereabouts of persons deprived of their liberty and to identify the perpetrators of such a crime. In addition, they failed to have access to the places – mass graves- in which there are grounds to believe that such persons may be found.
It is true that article 13 does not require any specific form of remedy and gives to the states a margin of discretion to implement their obligations, however, every form of remedy used has to be consistent with the right which has been violated.68 Hence, the remedy provided in the Spanish legislation and the judiciary is not consistent which the rights which are at stake when the crime of enforced disappearance takes place.
66 ECtHR. 9th November 2006. Imakeyeva v. Rrussia, nº 7615/02. 67
UN Commission on Human Rights, Declaration on the Protection of All Persons from Enforced
Disappearance., 28 February 1992, E/CN.4/RES/1992/29,
available at: http://www.refworld.org/docid/3b00f0b270.html (Accessed on 21-07-2017).
68
Council of Europe. “Guide to good practice in respect of domestic remedies”. (2013). Directorate General Human Rights and Rule of Law Council of Europe. Pp. 12.
In the field of enforced disappearances, the ECHR has ruled that an effective remedy requires an effective investigation to know the fate of the missing persons. The United Nations Committee of Human Rights is of the same view and considers that the state must carry out an effective investigation since the lack of them could amount to an inhuman treatment the relatives of the disappeared by virtue of article 7 of the International Covenant on Civil and Political Rights69. It also stresses out that the right to an effective remedy “can only be breached in conjunction of with a substantive right” i.e. the right to life, the right to not to be subjected to inhuman treatment, etc.70
The right to have an effective remedy also includes the element of compensation which is a form of reparation. In cases of enforced disappearances, the Court has awarded compensation to the relatives on account of breaches of articles 2 and 3 of the Convention but never up to date not on account of the breach of article 8 which leads us to think that to prove the violation of the aforementioned article is rather difficult or that the protected right is sufficiently similar to the protections granted under article 2 and 3 and therefore a partial part of the compensation is implicitly based on article 8 .71
2.5 The right to know the truth
In line of the previous sections, I will present the right to know the truth from a positivist approach in connection with several existing provisions in the ECHR, namely articles 2,3,10 and 13 and taking as a benchmark the case of El-Masri v. the F.Y.R.M72 which relates to the torture of one individual for being wrongly involved in terrorism. The right to know the truth refers to the obligation of states to provide information to victims or to their relatives or even more to a whole category of persons about the circumstances which caused serious violations of human rights.73
69 UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, United Nations, Treaty Series, vol. 999, available at:http://www.refworld.org/docid/3ae6b3aa0.html (Accessed 20-05-2017)
70 ECtHR. 9th April 2009. Silih v. Slovenia Case, nº 71463/01. Para. 111. 71 See supra note 35, para. 221.
72 ECtHR. 13th December 2012. Case of El-Masri v. the Former Yugoslav Republic of Macedonia, nº
39630/09.
73
NAQVI, Yasmin. The right to the truth in international law: fact or fiction?. International Review of the
In the El-Masri case, the right to know the truth was construed as a right which had emerged from already existing provisions of the ECHR. This statement was not supported by all the judges and therefore separate opinions were expressed.74
The court concluded that the right to know the truth emerged from the procedural obligation detached from article 3 which imposed an obligation to the state to carry out an effective investigation about the facts which caused a situation of torture as well as the perpetrators of the act. In the field of enforced disappearances, the same obligation would emerge. Conversely, some judges such as Tulkens, Sicilianos, Spielmann and Keller were of the opinion that the right to know the truth should also emerge on account of Article 13 since it might be accepted that the fact of providing information is an inherent part of an effective remedy. The right to know the truth has a narrow connection with regard to the right to an effective remedy and it could be deemed as one of its intrinsic elements. To exemplify this idea, the principle 11 of the Basic Principles75 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 Law stipulates that along with the equal and effective access to justice and reparation for the harm suffered, victims should also benefit from the right to have relevant information concerning violations and reparation mechanisms, which means that in the context of enforced disappearances, victims should know the fate and whereabouts of their relatives.
In addition, the four judges came to the conclusion that the right in question was also connected to Article 2 of the Convention concerning the right to life since this article also contains a procedural obligation to conduct an investigation of the facts which produced the death. 76
However, other judges such as Casadevall and López Guerra argued that the right to know the truth was not something innovative which needed a new legal construction since the requisites that need to be met to trigger this right were already contained in the
74
FABBRINI, Federico. The European Court of Human Rights, extraordinary renditions and the right to the truth: Ensuring accountability for gross human rights violations committed in the fight against terrorism. Human Rights Law Review, 2013, vol. 14, no 1, pp. 101 and 102.
75
UN General Assembly, 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 Law : resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147:
http://www.refworld.org/docid/4721cb942.html (accessed 25-05-2017).
