139
Therefore, the law must strictly control and limit the circumstances in which a person
may be deprived of his life by such authorities."7
In its recent General Comment on Article 2, which contains the obligations to
respect and guarantee the rights of the Covenant, it has said that the obligations of
the State will only be understood to be fully complied with if the State protects the
individual, no only in the case of acts of its agents, but also of those of other entities
or private persons, adding that:
“There may be circumstances in which a failure to ensure Covenant rights as required by
article 2 would give rise to violations by States Parties of those rights, as a result of
States Parties' permitting or failing to take appropriate measures or to exercise due
diligence to prevent, punish, investigate or redress the harm caused by such acts
by private persons or entities”8 (My emphasis).
The European Court has consistent case law and, in cases concerning the
right to life, examines what it calls "the procedural obligation of Article 2 of the
European Convention." In Hugo Jordan v. the United Kingdom, the Court does not
consider the requirements of Article 6 of the Covenant, which embody due process,
as a separate violation, but examines how the investigation was conducted in its
considerations on the right to life.9
11.
Consequently, I believe that the obligation of the State to investigate and
possibly try and punish should be considered to emanate from the respective
substantive right. This definition is not due merely to the desire to apply the
Convention strictly, but has substantive effects. For the purposes of reparation and
of admonishment, it makes a difference to assert that a procedural norm, such as
Article 8, has been violated or a substantive norm, such as those contained in
Articles 4 or 5.
12.
Evidently, if this obligation exists, the way to comply with it falls within the
sphere of Article 8. From that point of view, I share the considerations described by
the majority opinion with regard to the violation of different elements of that article.
13.
In conclusion, I dissent from this judgment as regards Article 25 of the
Convention having been violated in this case, and I dissent from the reasoning used
in Chapter VIII of the judgment. I agree that the Colombian State has violated
Articles 4 and 5, for the reasons set forth by the Court, but also because it did not
comply with its obligation to guarantee the respective provisions, by not conducting
a genuine and effective investigation into the facts of the case. Moreover, I
conclude that the State violated Article 8 because the partial investigation that it
conducted did not respect the requirements that Article 8 imposes on any
procedure.
7
Cited by this Court in the Case of “Street Children” (Villagrán Morales et al.). Judgment of
November 19, 1999. Series C No. 63, para. 145.
8
HRC, General Comment on Article 2. The Nature of the General Legal Obligation Imposed on
State Parties to the Covenant (adopted at 2187th meeting on 29 March 2004), para. 8.
9
Case of Hugh Jordan v. United Kingdom, Application No. 24746/94, judgment of 4 May 2001,
particularly paragraphs 142 to 145. See also Case of Anchova and others v. Bulgaria, Applications Nos.
43577/98 and 43579/98, judgment of 26 February 2004, particularly paragraph 141.