-102c) The obligation to investigate the facts effectively derived from the
guarantee obligation
142. The obligation to ensure the human rights enshrined in the Convention is not
exhausted with the existence of laws designed to make it possible to comply with
this obligation, but entails the need for conduct by the Government that ensures the
genuine existence of an effective guarantee of free and full exercise of human rights
(supra para. 120). Thus, the obligation to investigate cases of violations of these
rights arises from this general obligation of guarantee; in other words, Article 1(1) of
the Convention, together with the substantive right that must be protected or
ensured.
143. In particular, since full enjoyment of the right to life is a prior condition for
the exercise of all the other rights (supra paras. 119 and 120), the obligation to
investigate any violations of this right is a conditions for ensuring this right
effectively. Thus, in cases of extrajudicial executions, forced disappearances and
other grave human rights violations, the State has the obligation to initiate, ex officio
and immediately, a genuine, impartial and effective investigation,213 which is not
undertaken as a mere formality predestined to be ineffective.214 This investigation
must be carried out by all available legal means with the aim of determining the
truth and the investigation, pursuit, capture, prosecution and punishment of the
masterminds and perpetrators of the facts, particularly when State agents are or
may be involved.215
144. Evidently, during the investigation procedure and the judicial proceedings, the
victims of the human rights violations, or their next of kin, should have extensive
opportunities to participate and be heard, both in the clarification of the facts and the
punishment of those responsible, and in seeking fair compensation.216 However, the
investigation should be assumed by the State as an inherent juridical obligation and
not merely as a reaction to private interests, which depend on the procedural
initiative of the victims or their next of kin and on the contribution of evidence by
private individuals, while the public authority is not making an effective effort to
discover the truth.217
145. The execution of an effective investigation is a fundamental and conditioning
element for the protection of certain rights that are affected or annulled by these
situations, such as, in the instant case, the rights to personal liberty, humane
treatment and life. This assessment is valid whatsoever the agent to which the
violation may eventually be attributed, even individuals, because, if their acts are not
213
Cf. Case of the “Mapiripán Massacre”, supra note 7, paras. 219 and 223; Case of the Moiwana
Community, supra note 7, para. 145, and Case of the Gómez Paquiyauri Brothers, supra note 188, para.
131.
214
Cf. Case of the “Mapiripán Massacre”, supra note 7, para. 223; Case of the Moiwana Community,
supra note 7, para. 146; Case of the Serrano Cruz Sisters. Judgment of March 1, 2005. Series C No. 120,
para. 61, and Case of Bulacio, supra note 192, para. 112.
215
Cf. Case of the “Mapiripán Massacre”, supra note 7, para. 237; Case of the Moiwana Community,
supra note 7, para. 203, and Case of the Serrano Cruz Sisters, supra note 214, para. 170.
216
Cf. Case of the “Mapiripán Massacre”, supra note 7, para. 219; Case ofhe Moiwana Community
case, supra note 7, para. 147, and Case of the Serrano Cruz Sisters, supra note 214, para. 63.
217
Cf. Case of the “Mapiripán Massacre”, supra note 7, para. 219; Case of the Moiwana Community,
supra note 7, para. 146, and Case of the Serrano Cruz Sisters. supra note 214, para. 61.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents