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14. The duty to effectively investigate violations of the right to freedom of peaceful assembly

The occurrence of human rights violations during assemblies triggers a duty on the part of the authorities to investigate. The joint report on the proper management of assemblies states in this regard:

States must investigate any allegations of violations in the context of assemblies promptly and effectively through bodies that are independent and impartial.^[1]

This duty notably comes into play when deaths or injuries occur. The UN Human Rights Council has urged States to:

investigate any death or injury committed during protests, including those resulting from the discharge of firearms or the use of non-lethal weapons by law enforcement officials.^[2]

The legal obligation to investigate deaths, injuries and inhuman or degrading treatment occurring in connection with assemblies is confirmed by the jurisprudence of a range of international courts and mechanisms.^[3] The ECtHR has held in this regard:

The general legal prohibition of arbitrary killing and torture and inhuman or degrading treatment or punishment by agents of the State would be ineffective in practice if there existed no procedure either for reviewing the lawfulness of the use of lethal force by State authorities, or for investigating arbitrary killings and allegations of ill-treatment of persons held by them.

Thus, having regard to the general duty on the State under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, the provisions of Articles 2 and 3 require by implication that there should be some form of effective official investigation, both when individuals have been killed as a result of the use of force by, inter alia, agents of the State … and where an individual makes a credible assertion that he has suffered treatment infringing Article 3 of the Convention …^[4]

The duty to investigate death or ill-treatment applies regardless of whether private actors or government agents are responsible.^[5] It is important to note that the awarding of damages cannot come in the place of the duty to investigate.^[6] This duty can generally only be satisfied through criminal law.^[7]

The ECtHR has underlined that the duty to investigate applies to any demonstration, “however illegal it may have been.”^[8]

14.1 What prompts the duty to investigate?

The authorities should initiate an investigation as soon as they obtain knowledge of a credible allegation of a violation.

The ECtHR has held with regard to killings that they trigger an automatic duty to investigate:

[T]he mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death.^[9]

In other words, the investigation should not be left to initiative of the victim’s next of kin:

[T]he authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (…).^[10]

In cases of alleged ill-treatment, the victim does not need to prove the facts; if there is an arguable case which raises a reasonable suspicion, the authorities must investigate:

The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”.^[11]

The Human Rights Committee and ECtHR have held that the circumstances and severity of ill-treatment, such as the duration and manner of the treatment, its physical or mental effects, as well as the sex, age and state of health of the victim will determine whether the duty to investigate is triggered; e.g. when it constitutes torture or inhuman or degrading treatment.^[12] International courts and mechanisms have not defined these conditions precisely. Yet, the duty to investigate is not limited to physical ill-treatment, but can also cover humiliating, discriminatory or intimidating acts.^[13]

14.2 What requirements must an investigation meet?

Effectiveness

The duty to investigate can only be satisfied if the investigation is effective. An effective investigation is one that is capable of bringing out the truth about what happened.^[14] It should be aimed at establishing the identity of perpetrators, punishing them, and thus provide accountability and redress to victims.^[15] In the words of the IACtHR:

[T]he power of access to justice must ensure, within a reasonable period of time, the right of the alleged victims or their next of kin that everything possible be done to know the truth of what happened and that the possible responsible parties be punished.^[16]

The ECtHR adds that the investigation must make it possible to determine “whether the force used in such cases was or was not justified in the circumstances.”^[17] Each case is different, and its circumstances along with “practical realities” will determine “the nature and degree of scrutiny” that will satisfy the duty to investigate effectively.”^[18] However, the duty to investigate effectively is “not an obligation as to the results to be achieved but as to the means to be employed.”^[19]

An early step in any effective investigation is the securing of all possible evidence. The IACHR and IACtHR have indicated that the investigating authorities must preserve the communications between personnel involved in the operation and originals of any recordings or images made at the scene.^[20] In addition, in cases of deaths, they must:

a) identify the victim; b) collect and preserve evidence related to the death in order to assist with any investigation; c) identify possible witnesses and obtain testimonies in relation to the death under investigation; d) determine the cause, manner, place and time of death, as well as any pattern or practice which may have brought about such death, and e) distinguish between natural death, accidental death, suicide and homicide. The scene of the crime must be examined exhaustively, using autopsies and analysis of human remains by competent professionals and employing rigorous and appropriate procedures.^[21]

The ECtHR similarly requires the authorities to take

reasonable steps available to them to secure the evidence concerning the incident including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.^[22]

In cases of alleged torture or ill-treatment, a medical report must be drawn up that complies with relevant international guidelines and protocols.^[23]

If there is a possibility of discriminatory intent, the investigation should aim to reveal it. In M.C and A.C. v. Romania, demonstrators were targeted and attacked by private individuals on their way back from a gay rights march. The ECtHR held:

When investigating violent incidents, such as ill‑treatment, State authorities have a duty to take all reasonable steps to uncover any possible discriminatory motives … The authorities must do whatever is reasonable in the circumstances to collect and secure the evidence, to explore all practical means of discovering the truth, and to deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of violence induced by, for instance, racial or religious intolerance, or violence motivated by gender-based discrimination. Treating violence and brutality arising from discriminatory attitudes on an equal footing with violence occurring in cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.^[24]

Promptness

It is important that the investigation is conducted in a manner that maintains public confidence in State authorities, especially in cases where law enforcement authorities are involved. The investigation must therefore be initiated and concluded within a reasonable time.^[25] Conduct that violates the requirement of promptness includes: delays in taking statements from key witnesses,^[26] repeated adjournments of hearings because of procedural errors, ^[27] and excessive overall length of the proceedings.^[28] Authorities cannot delay proceedings in the hope that they will become time-barred.^[29]

The ECtHR has underlined the social importance of investigating deaths during protests promptly, even if the case is complex. In Mocanu and Others v. Romania, a case decided in 2014, the Court remarked about the failure to complete investigations into shootings of demonstrators in 1990:

While acknowledging that the case is indisputably complex, as the Government have themselves emphasised, the Court considers that the political and societal stakes referred to by the latter cannot justify such a long period. On the contrary, the importance of those stakes for Romanian society should have led the authorities to deal with the case promptly and without delay in order to avoid any appearance of collusion in or tolerance of unlawful acts.^[30]

Finally, the State should not enact provisions that effectively prevent accountability of perpetrators, such as amnesties or inflexible statute of limitations:

The Court has also held that in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases … Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions.^[31]

Independence

To be effective and preserve confidence in the State, the investigation must also be independent, in particular when law enforcement personnel are implicated. According to the ECtHR:

it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.^[32]

According to the IACtHR, military courts and military prosecutors are not the appropriate bodies to conduct an effective investigation:

[T]he Court has established that remedies before the military courts are not effective to decide cases of serious human rights violations, much less to establish the truth, prosecute those responsible, and make reparation to the victims, because those remedies that, for different reasons, result illusory cannot be considered effective, such as when the judicial organ lacks independence and impartiality.”^[33]

The ECtHR has also criticized investigations by military prosecutors into violations human rights violations allegedly committed by others within the military hierarchy.^[34] On the other hand, the European Court has accepted a situation where the police performed certain steps in the investigation, though the accused were police officers, provided it did not alter the impartiality and independence of the investigation.^[35] There should not be a hierarchical link between the officers investigating and the officers subject to investigation.^[36]

Accessibility to the public and relatives

For the sake of public trust and effectiveness, an investigation must also leave room for public scrutiny.

The UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment (the “Istanbul Protocol”) states:

Alleged victims of torture or ill-treatment and their legal representatives must be informed of, and have access to, any hearing as well as to all information relevant to the investigation and must be entitled to present other evidence.^[37]

The ECtHR has taken the same view,^[38] and has added that there must be “a sufficient element of public scrutiny of the investigation”. ^[39] If the investigation concerns a death during an assembly, it is the family of the victim who must have access to it. That access is not unlimited; it must be granted “to the extent necessary to safeguard their legitimate interests”. ^[40] Consideration must be given to possible prejudicial effects to private individuals or other investigations, which may lead to access being provided for in later stages of the procedure.^[41]

Punishment of agents responsible for unlawful killings, torture or ill-treatment

An investigation is only adequate if it results in those responsible for any unlawful killings, torture or ill-treatment being punished, to a degree sufficient to ensure a deterrent effect. The ECtHR has held:

[If] the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity … [T]he outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed as well as disciplinary measures taken, has been considered decisive. It is vital in ensuring that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the prohibition of ill-treatment are not undermined.^[42]

The IACHR too emphasizes that States have an “international obligation to investigate, try, and, where applicable, punish security agents responsible for violating the rights to life and personal liberty.”^[43]

Criminal sanctions should not only be applied to those enforcement officials using unlawful force, but also to any superior officer who failed to take measures within his or her power to prevent, suppress or report such use.^[44]

A State agent facing charges as a result of an investigation into an injury or death during an assembly must be suspended and, if convicted, dismissed. The ECtHR has stated:

[W]here a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she should be suspended from duty during the investigation and trial, and should be dismissed if convicted.^[45]