4.
Investigative mechanisms
38. The duty to investigate does not necessarily call
for one particular investigative mechanism in
preference to another. States may use a wide
range of mechanisms consistent with domestic
law and practice, provided those mechanisms
meet the international law requirements of
the duty to investigate. Whether a police
investigation, a coronial inquest, an investigation
by an independent police oversight body, an
investigation by a judge, special prosecutor or
national human rights institution, or any other
investigation, complies with the duty to investigate,
is a matter to be determined in the light of the
international legal obligations and commitments
of the State. Whichever mechanisms are used,
however, they must, as a whole, meet the
minimum requirements set out in these Guidelines.
40. States must ensure that special mechanisms do
not undermine accountability by, for example,
unduly delaying or avoiding criminal prosecutions.
The effective conduct of a special investigative
mechanism – designed, for example, to
investigate the systemic causes of rights violations
or to secure historical memory – does not in itself
satisfy a state’s obligation to prosecute and punish,
through judicial processes, those responsible
for an unlawful death. Accordingly, while
special mechanisms may play a valuable role in
conducting investigations in certain circumstances,
they are unlikely on their own to fulfil the State’s
duty to investigate. Fulfilment of that duty may
require a combination of mechanisms.
39. In specific circumstances a State may establish
a special mechanism such as a commission of
inquiry or another transitional justice mechanism.
An international investigation mechanism with the
expertise and capacity to conduct an independent
and objective investigation may be appropriate.
The requirements of promptness, effectiveness and
thoroughness, independence and impartiality,
and transparency apply equally to investigations
undertaken by these mechanisms.83
83
10
In designing such mechanisms, States should have regard to the principles relating to commissions of inquiry contained in the Set of Principles to Combat
Impunity, the OHCHR’s Commissions of Inquiry and Fact-Finding Missions Guidance and Practice and the Siracusa Guidelines for International, Regional and
National Fact-Finding Bodies.
The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016)
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