JOINT CONCURRING OPINION OF JUDGES TULKENS, SPIELMANN, SICILIANOS AND KELLER

(Translation)

1. In relation to Article 13 of the Convention, which the Court unanimously found to have been breached in conjunction with Articles 3, 5 and 8, we would have liked the reasoning to extend to an aspect which in our view is fundamental. On account of the seriousness of the violations found, we consider that the Court should have acknowledged that in the absence of any effective remedies – as conceded by the Government – the applicant was denied the “right to the truth”, that is, the right to an accurate account of the suffering endured and the role of those responsible for that ordeal (see Association “21 December 1989” and Others v. Romania , nos. 33810/07 and 18817/08, § 144, 24 May 2011 [the text of § 144 is available only in French in Hudoc]).

2. Obviously, this does not mean “truth” in the philosophical or metaphysical sense of the term but the right to ascertain and establish the true facts. As was pointed out by the United Nations Office of the High Commissioner for Human Rights, and also by Redress, Amnesty International and the International Commission of Jurists [1] , in enforced disappearance cases the right to the truth is a particularly compelling norm in view of the secrecy surrounding the victims’ fate.

3. In addressing the applicant’s complaint under Article 10 of the Convention that he “had a right to be informed of the truth regarding the circumstances that had led to the alleged violations”, the Court considers that the issue raised overlaps with the merits of his Article 3 complaints and has already been dealt with in relation to those complaints (see paragraph 264 of the judgment). It could therefore be argued that the Court is implicitly acknowledging that the right to the truth has a place in the context of Article 3, although it does not really commit itself to such a finding, instead simply noting that there was an inadequate investigation which deprived the applicant of the possibility of being informed (see paragraph 193 of the judgment).

4. We consider, however, that the right to the truth would be more appropriately situated in the context of Article 13 of the Convention, especially where, as in the present case, it is linked to the procedural obligations under Articles 3, 5 and 8. The scale and seriousness of the human rights violations in issue, committed in the context of the secret detentions and renditions system, together with the widespread impunity observed in multiple jurisdictions in respect of such practices, give real substance to the right to an effective remedy enshrined in Article 13, which includes a right of access to relevant information about alleged violations, both for the persons concerned and for the general public.

5. The right to the truth is not a novel concept in our case-law, nor is it a new right. Indeed, it is broadly implicit in other provisions of the Convention, in particular the procedural aspect of Articles 2 and 3, which guarantee the right to an investigation involving the applicant and subject to public scrutiny.

6. In practice, the search for the truth is the objective purpose of the obligation to carry out an investigation and the raison d’être of the related quality requirements (transparency, diligence, independence, access, disclosure of results and scrutiny). For society in general, the desire to ascertain the truth plays a part in strengthening confidence in public institutions and hence the rule of law. For those concerned – the victims’ families and close friends – establishing the true facts and securing an acknowledgment of serious breaches of human rights and humanitarian law constitute forms of redress that are just as important as compensation, and sometimes even more so. Ultimately, the wall of silence and the cloak of secrecy prevent these people from making any sense of what they have experienced and are the greatest obstacles to their recovery.

7. A more explicit acknowledgment of the right to the truth in the context of Article 13 of the Convention, far from being either innovative or superfluous, would in a sense cast renewed light on a well-established reality.

8. Today, the right to the truth is widely recognised by international and European human rights law. At United Nations level, it is set forth in the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (Article 24 § 2) and in the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. Resolutions 9/11 and 12/12 on the right to the truth, adopted on 18 September 2008 and 1 October 2009 respectively by the United Nations Human Rights Council, state that: “... the Human Rights Committee and the Working Group on Enforced or Involuntary Disappearances ... have recognized the right of the victims of gross violations of human rights and the right of their relatives to the truth about the events that have taken place, including the identification of the perpetrators of the facts that gave rise to such violations ...”.

9. The same is true at regional level. In the context of the American Convention on Human Rights, the right to the truth has been expressly acknowledged in the decisions of the Inter-American Court of Human Rights in Velásquez Rodríguez v. Honduras (29 July 1988) and Contreras et al. v. El Salvador (31 August 2011). On the European scene, with reference first of all to the European Union, the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings [2] establishes a link between truth and dignity and states, in its Preamble, that “[t]he rules and practices as regards the standing and main rights of victims need to be approximated, with particular regard to the right to be treated with respect for their dignity, the right to provide and receive information, the right to understand and be understood ...”. Within the Council of Europe, the Guidelines of 30 March 2011 on eradicating impunity for serious human rights violations pursue a similar approach.

10. In these circumstances, we consider that the judgment’s somewhat timid allusion to the right to the truth in the context of Article 3 and the lack of an explicit acknowledgment of this right in relation to Article 13 of the Convention give the impression of a certain over-cautiousness.