The IACtHR has adopted the broadest approach on the
right to family life in the context of ED, by considering
that the crime engaged the rights of the family under Article 17 of the American Convention, which enshrines the right to family life.209 When it was relevant,
the IACtHR also found a violation of the rights of the
child under Article 19 of the American Convention.210
Thus, in the case of the disappearance of two young
children, the Serrano-Cruz Sisters, in El Salvador, the
Court stated that the “lack of diligence in the investigation and determination of the whereabouts [of the victims] constitutes a violation of the rights protected by
Article 17 of the Convention.”211 The Court also found
a violation of Article 19 for failing to take any measure
to return the children to their family.
Pursuant to Article 8 of the UDHR, “[e]veryone has the
right to an effective remedy by the competent national tribunals for acts violating the fundamental rights
guaranteed him by the constitution or law.”215 Other
human rights treaties codify this right, including the
ICCPR and the CAT,216 and regional bodies have also
endorsed the right to a remedy in their charters.217
The ICPPED stipulates in Article 24(4) that: “[E]ach
State Party shall ensure in its legal system that the
victims of enforced disappearance have the right to
obtain reparation and prompt, fair and adequate
compensation.”218
The main State obligations in relation to the right to
an effective remedy include: ensuring that victims
have effective remedies through appropriate judicial
and administrative mechanisms; promptly and effectively investigating allegations of violations through
independent bodies; prosecuting those responsible
for the violations; and providing reparation to victims,
including reparation.219
In Gelman v. Uruguay, the IACtHR dealt with the rights
of stolen/abducted children and noted that States
were obligated to ensure the protection of the family
and guard against unlawful or arbitrary interference
in the family life of the children.212
The ECtHR has found violations of Article 8 in several
ED cases. In the case of El-Masri v. The Former Yugoslav Republic of Macedonia, the ECtHR held that
“the interference with the applicant’s right to respect
for his private and family life was not in ‘accordance
with the law’”.213 The ECtHR recognised that the broad
notion of private life extended to situations of deprivation of liberty, and that an essential objective of
Article 8 is the protection from arbitrary interference
by public authorities.214
The HRCt has systematically found a violation of the
right to an effective remedy, either alone or read in
conjunction with the ICCPR.220 Blanket amnesties for
gross human rights violators have also been considered by the HRCt as a contravention of Article 2(3) of
the ICCPR, which stipulates the State’s duty to provide an effective remedy to victims of human rights
violations. 221
Most ED entails a violation of the right to effective
remedy in respect of both the disappeared persons
and the relatives. The ECtHR has repeatedly held that
ED constitutes a violation of the right to an effective
remedy under Article 13 of the Convention (Right to
an effective remedy), read in conjunction with Articles 2 and 3. The ECtHR has made clear that: “where
Right to an effective remedy
The right to a remedy for gross human rights violations is a well-established norm of international law.
209 ACHR, supra note 139, Article 17.
210 ACHR, supra note 139, Article 19.
211 IACtHR, Serrano-Cruz Sisters v El Salvador, Serie C No. 118, 23 November 2004, para. 90; See also IACtHR, Gelman v Uruguay, 24 February 2011,
para. 312.
212 IACtHR, Gelman v Uruguay, Judgment, Series C No. 221, 24 February 2011.
213 ECtHR, El-Masri v the Former Yugoslav Republic of Macedonia, Appl. No. 39630/09, 13 December 2012, para. 249.
214 ECtHR, El-Masri v the Former Yugoslav Republic of Macedonia, supra note 213, para. 249; ECtHR, Raninen v Finland, Appl. No. 152/1996/771/972,
16 December 1997, para. 63; ECtHR, Kroon and Others v the Netherlands, Appl. No. 18535/91, 27 October 1994, para. 31.
215 Universal Declaration of Human Rights ("UDHR"), Article 8.
216 ICCPR, Articles 2(3), 9(5), 14(6); CAT, supra note 153, Article 14.
217 ECHR, Article 13; ACHR, Article 25; African Charter, Articles 7, 21.
218 ICPPED, Article 24.
219 OHCHR, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law, Resolution 60/147, 16 December 2005, para. 3.
220 See e.g. Tharu et al. v. Nepal, Communication No. 2038/2011, CCPR/C/114/D/2038/2011, 21 October 2015; Dovadzija et al. v. Bosnia and
Herzegovina, Communication No. 2143/2012, CCPR/C/114/D/2143/2012, 10 November 2015; Icić et al. v. Bosnia and Herzegovina, Communication
No. 2028/2011, CCPR/C/113/D/2028/2011, 20 August 2015; Zarzi (on behalf of Aouabdia and ors) v Algeria, Merits, Communication No. 1780/2008,
CCPR/C/101/D/1780/2008, 22 March 2011,
221 ICCPR, Article 2(3).
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