The State authorities that conduct an investigation must, inter alia, a) identify the victim; b)
recover and preserve the probative material related to the death, in order to facilitate any
investigation; c) identify possible witnesses and obtain their statements in relation to the
death under investigation; d) determine the cause, method, place and moment of the death,
as well as any pattern or practice that could have caused the death, and e) distinguish
between natural death, accidental death, suicide and murder. In addition, it is essential to
search exhaustively the scene of the crime and autopsies and analysis of human remains
must be carried out rigorously by competent professionals, using the most appropriate
procedures.222
145.
As for the obligation to investigate, the European Court of Human Rights (hereinafter
“European Court”) has established that the death of a person, who is under the direct supervision of the State,
as an inmate or a soldier subjected to a disciplinary regime, could arise in circumstances that potentially
involve State liability; there exists “an obligation of the State to ensure, by all means available to it, a suitable
response […] so that the legislative framework to protect the right to life is adequately implemented and any
violation of said right is suppressed and punished.”223
146.
Additionally, in cases when the death may have been the consequence of the use of force, the
Court has held that the “most careful scrutiny” must be exercised, while taking into consideration not “only
the actions of agents of the State who exerted the force, but of the respective circumstances including
elements such as planning and control of the actions under examination.”224 Thus, “any deficiency in the
investigation, which undermines the ability thereof to establish the cause of death or the person
responsible,will put compliance with this norm at risk.”225
147.
As a safeguard to protect the right to life in the investigation of deaths occurring in a
particular context of military life, the European Court has held that the following requirements must be
fulfilled in order ensure the effectiveness of said investigation and the judicial determination resulting from
it: i) the investigation must be conducted independently, especially in cases where there are doubts about the
circumstances in which the person died, so that those who may be potentially implicated in the crimes under
investigation do not take part in running the investigation;226 ii) that a “legislative and administrative
framework” mustbe in place to ensure effective protection of the right to life, adequate procedures for the
collection of evidence to make it possible to determine any criminal responsibility and also any disciplinary
responsibility to which it may give rise, for example, in connection with officers and commanders at different
levels of the command hierarchy;227 iii) in particular, when the death has been the consequence of the use of
force by members of the armed forces, the investigation must be opened as “promptly” as possible, and
conducted within a reasonable length of time, and the European Court has established these requirements as
“essential” in this context, as elements to ensure confidence in the armed institution, its adherence to the Rule
of Law and zero tolerance of illegal or arbitrary acts by its members228 and iv) there must be assurance that
the investigation and the outcome thereof are made public, and although the degree of public knowledge may
vary from case to case, at a minimum the victim’s next-of-kin must be able to participate extensively in the
case proceedings in order to assert their own interests.229
222I/A Court H.R., Case of the Moiwana Community v. Suriname. Judgment of June 15, 2005. Series C No. 124, para. 149; I/A
Court H.R., Case of the Miguel Castro Castro Prison v. Peru. Judgment of November 25, 2006. Series C No. 160, para. 383. Citing the United
Nations Manual on Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Doc. E/ST/CSDHA/.12
(1991).
223See
ECHR, Sergey Shevchenko vs. Ukraine, no. 32478/02, § 64.
224
ECHR, McCann and Others v. the United Kingdom, Application no. No. 27229/95, September 1995 § 36.
225
ECHR, Milkhalkova and others v. Ukraine, Application no. 10919/05, 13 January 2011, § 42.
226See:
ECHR, Salgin v. Turkey, judgment of 20 May 2007 § 86.
227
ECHR, Kilinç and Others v. Turkey, judgment of 7 June 2005 § 41.
228
ECHR, Kelly and Others v. UK, judgment of 4 May 2001, § 97
229
ECHR, McKerr v. UK, judgment of 4 May 2001§ 115.