Procedural safeguards required for an effective investigation The HRC, in its General Comment 6, stated that “states should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.”267 Under the ICCPR, states have positive duties to investigate all state killings, to bring to justice any persons found to be responsible for killings, and to provide redress to victims’ relatives. The right to life, therefore, requires that agents of the state be accountable for their use of lethal force. Their actions should be subjected to some form of independent and public scrutiny capable of determining whether the force used was or was not justified in a particular set of circumstances.268 Effective investigation should comply with the following procedural safeguards: • • • • it must be carried out by an independent body with a degree of public scrutiny; it must be thorough, rigorous and prompt; it must be capable of imputing responsibility for the death; if agents of the state are responsible, it must be capable of determining whether or not the killing was justified; • if initiated on the basis of a criminal complaint, the complainant must be able to take part in the proceedings; • it must be capable of bringing perpetrators to justice; and • it must enable effective involvement of a next-of-kin. The European Court has stressed that there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The Court has accepted that the degree of public scrutiny may vary on a case-by-case basis but the next-of-kin of the victim “must in all cases be involved in the procedure to the extent necessary to safeguard their legitimate interests.”269 Any investigation must also be capable of considering any systemic failures that could have caused the death, for example the planning and organization of a rescue operation270 or the planning of anti-terrorist police operations.271 The need for independence is particularly important where agents of the state are involved.272 If a different investigatory system is used for cases involving the use of lethal force by state agents than for other cases, this may be treated with suspicion. For example, where decisions to prosecute are not taken by the public prosecutor — as would normally be the case — but by 267 Op. cit., note 237, HRC, General Comment No. 6, para. 4; see also op. cit., note 237, HRC, Baboeram and Others v. Suriname, para. 14.3. 268 The procedural safeguards required for an investigation into a loss of life were spelt out in op. cit., note 253, ECtHR, Hugh Jordan v. UK, paras. 102-109 (the “Jordan criteria”). That case involved the failure to properly investigate a death arising out of the troubles in Northern Ireland. 269 See ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Applications nos. 57947/00, 57948/00 and 57949/00, 24 February 2005, para. 213; ECtHR, Isayeva v. Russia, Application no. 57950/00, 24 February 2005, para. 214. This principle is recalled in many cases dealing with the protection of the right to life, see for instance ibid., ECtHR, Hugh Jordan v. UK, para. 109; ECtHR, Slimani v. France, Application no. 57671/00, 27 July 2004 para. 32; ECtHR, McKerr v. UK, Application no. 28883/95, 4 May 2001, para. 115. 270 ECtHR, Andronicou and Constantinou v. Cyprus, Case no. 86/1996/705/897, 9 October 1997, paras. 181-186. 271 Op. cit., note 252, ECtHR, McCann and Others v. UK, paras. 192-214. 272 ECtHR, Kiliç v. Turkey, Application no. 22492/93, 28 March 2000, paras. 71-77. 106 Countering Terrorism, Protecting Human Rights