The Duty to Provide an Effective Remedy

Every time the responsibility of the state is engaged in regard to the violation of the right to life, the obligation to provide an effective remedy arises. This duty is contained, for example, in Article 2(3)ICCPR   (obligation to ensure an effective remedy in case of violation); Article 13 ECHR  (effective remedy), Article 26(1)Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights and Article 25 American Convention  .

The obligation to provide an effective remedy arises not only when state agents have committed the violation of the right to life, but also in cases where there is no evidence that state agents have been involved in the killing or ‘disappearance’ of a person.

On 23 June 1992, when Ana R. Celis Laureano was 16 year old, she was detained by military forces in Peru on the ground of suspected collaboration with a guerrilla movement (the Shining Path). Several days later, when she was being transferred to another location, the official vehicle in which she was travelling had an accident and she fractured her hip. On 5 August 1992, a judge ordered her release on the grounds that she was a child. Several days later, Ms. Laureano was abducted by men who seemed to be from the military forces. She subsequently disappeared and her family was unaware of her whereabouts.

Celis Laureano v. Peru

Human Rights Committee

Communication No. 520/1993

Views of 25 March 1996

Keywords: life - duty to investigate – disappearances - inhuman treatment or punishment - liberty of person - security of person - children’s rights - effective remedy


Examination on the merits


8.3. In respect of the alleged violation of Article 6, paragraph 1, the Committee recalls its General Comment 6[16] on Article 6 which states, inter alia, that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. States parties should also take specific and effective measures to prevent the disappearance of individuals and establish effective facilities and procedures to investigate thoroughly, by an appropriate and impartial body, cases of missing and disappeared persons in circumstances which may involve a violation of the right to life. [?]


8.5. With regard to the claim under article 7, the Committee recalls that Ms. Laureano disappeared and had no contact with her family or, on the basis of the information available to the Committee, with the outside world. In the circumstances, the Committee concludes that the abduction and disappearance of the victim and prevention of contact with her family and with the outside world constitute cruel and inhuman treatment, in violation of article 7,—juncto article 2, paragraph 1, of the Covenant.

8.6 The author has alleged a violation of article 9, paragraph 1, of the Covenant. The evidence before the Committee reveals that Ms. Laureano was violently removed from her home by armed State agents on 13 August 1992; it is uncontested that these men did not act on the basis of an arrest warrant or on orders of a judge or judicial officer. Furthermore, the State party has ignored the Committee’s requests for information about the results of the author’s petition for habeas corpus, filed on behalf of Ana R. Celis Laureano. The Committee finally recalls that Ms. Laureano had been provisionally released into the custody of her grandfather by decision of 5 August 1992 of a judge on the Civil Court of Huacho, i.e., merely eight days before her disappearance. It concludes that, in the circumstances, there has been a violation of article 9, paragraph 1, junctoarticle 2, paragraph 1.

9. The Human Rights Committee [?] is of the view that the facts before the Committee reveal violations of Articles 6, paragraph 1; 7; and 9, paragraph 1, all juncto Article 2, paragraph 1; and of Article 24, paragraph 1, of the Covenant.

10. [?] The Committee urges the State party to open a proper investigation into the disappearance of Ana Rosario Celis Laureano and her fate, to provide for appropriate compensation to the victim and her family, and to bring to justice those responsible for her disappearance, notwithstanding any domestic amnesty legislation to the contrary.


In this case, the Human Rights Committee laid down the obligation to bring to justice those responsible for the disappearance ‘notwithstanding any domestic amnesty legislation to the contrary’ (para. 10). In general, it is possible to conclude that in cases involving arbitrary detentions, forced disappearances, torture, and extrajudicial executions, the Committee has stated that the victim’s right to an effective remedy under Article 2(3) ICCPR must include a criminal investigation that brings to justice those responsible. An example is the case of Bautista de Arellana v. Colombia  (Communication No. 563/1993, Views of 11 October 1994), where the Human Rights Committee held that purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of Article 2, paragraph 3 of the Covenant, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life’ (para. 8.2).

The following case refers to the abduction and subsequent disappearance of Peruvian Ernesto Rafael Castillo Paez who was a student of sociology. He was arrested by police officials on 21 October 1990. During proceedings before the Inter-American Court, it was proven that, during the period in question, the Peruvian security forces carried out the practice of forced ‘disappearance’ of persons thought to be members of subversive groups, a practice well-publicized by the press. Students were also the victims of ‘disappearances’.

Castillo Páez v. Peru

Inter American Court of Human Rights

Series C No. 34 (1997)

Judgement of 3 November 1997

Keywords: life - personal integrity – effective recourse to competent domestic courts or judges - reparation



80. As regards the violation of Article 25 of the Convention concernng judicial protection, the parties adduced the following arguments:

a. In its application, the Commission considered that the right enshrined in that article obliges the State to provide effective recourse and that this duty “was violated byPeruthrough several actions taken by the State that prevented [Mr. Castillo-Páez from being set free] and ultimately caused the crimes to go unpunished.” In support of this argument, the Commission invoked the judgment of August 19, 1991, in which the Fourteenth Criminal Court of the Lima Judicial District referred to the disappearance of Ernest Rafael Castillo-Páez as having been produced when he was arrested by members of the National Police.

b. The Commission alleged that the actions of the State’s agents prevented effective recourse. It further stated that although the State is obliged to guarantee that the competent authorities will comply with all the court rulings and decisions, habeas corpus, the appropriate remedy in this case, “proved ineffective to determine [the victim’s]whereabouts and secure his release.” According to the Commission, “the Supreme Court of Justice did not have jurisdiction to take cognizance, in the third instance, of a habeas corpus proceeding, given that such action is prohibited under Article 21 of Law 23506.” According to that article, “the party that is the cause of the alleged violation of a right may not file a petition seeking nullification.” It further claimed that “the police refused to cooperate in the enquiry into the disappearance, and supplied the magistrate with adulterated logs, which was clearly an obstruction of justice.”

c. During the public hearing held on February 6 and 7, 1996, the State, in its cross-examination of Judge Minaya-Calle, stressed that to take statements from witnesses anonymously was an anomaly prohibited under Criminal Trial Law. In response to the questions from the Agent of the State, the magistrate said that she had visited the scene, not to take statements, but only to draw up a report; she confirmed that she did identify the witnesses, but that for security reasons she had not named them in her report, but this did not constitute an anomaly. Habeas corpus had not been effective and that, both in her own court experience in which she had dealt with many petitions of habeas corpus, and from her knowledge of others, none had borne results in cases of forced disappearance of persons. The State also pointed out that there was no evidence against the Minister of the Interior and the other persons named in the writ of habeas corpus, to which the magistrate replied that, in hierarchical institutions, responsibility lies with the highest ranking official.

d. With regard to the violation of the aforementioned Article 25 of the Convention, Peru, in its answer to the application denied that there had been any obstruction of the investigation or any irregularities in the trial. It listed in detail the actions taken in the judicial investigations up to the date of the presentation of its brief of final arguments, and repeated that domestic remedies had not been exhausted. It further indicated the actions taken by the competent authorities to determine and locate the whereabouts of Mr. Castillo-Páez.

81. The Court considers that the remedy filed by Mr. Castillo-Páez’ next-of-kin against his detention (habeas corpus) was obstructed by State agents through the adulteration of the logs of entry of detainees, which made it impossible to locate the victim (supra, paras. 30.d and 58); that although the appeal of habeas corpus was favorably disposed of in two instances, the Supreme Court of Justice nullified the ruling in its judgment of February 7, 1991.

82. Consequently, it has been proven that the remedy of habeas corpus was ineffective for securing the release of Ernesto Rafael Castillo-Páez and, perhaps, for saving his life. The fact that the ineffectiveness of habeas corpus was due to forced disappearance does not exclude the violation of Article 25 of the American Convention. This provision on the right to effective recourse to a competent national court or tribunal is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention.

83. Article 25 is closely linked to the general obligation contained in Article 1(1) of the American Convention, in that it assigns duties of protection to the States Parties through their domestic legislation. The purpose of habeas corpus is not only to guarantee personal liberty and humane treatment, but also to prevent disappearance or failure to determine the place of detention, and, ultimately, to ensure the right to life.

84. It having been proven, as stated above (supra, para. 71), that Mr. Castillo-Páez was detained by members of the Peruvian police force and that, consequently, he was in the custody of the police, who hid him so that he would not be located, the Court finds that the ineffectiveness of the remedy of habeas corpus is imputable to the State and constitutes a violation of Article 25 of the Convention, in connection with Article 1(1).


90. In connection with the above-mentioned violations of the American Convention, the Court considers that the Peruvian State is obliged to investigate the events that produced them. Moreover, on the assumption that internal difficulties might prevent the identification of the individuals responsible for crimes of this kind, the victim’s family still have the right to know what happened to him and, if appropriate, where his remains are located. It is therefore incumbent on the State to use all the means at its disposal to satisfy these reasonable expectations. In addition to this duty to investigate, there is also the duty to prevent the commission of forced disappearances and to sanction those responsible for them. These obligations on Peru shall remain in force until such time as they have been fully performed (Neira Alegría et al. Case, supra 72, para. 69 and Operative Paragraph 4; Caballero Delgado and Santana Case, supra 72, paras. 58 and 59; El Amparo Case, Reparations (Art. 63(1) of the American Convention on Human Rights ), Judgment of September 14, 1996. Series C No. 28, para. 61, and Operative Paragraph 4).



The Court found that Peruhad violated,inter alia, the right to life recognised in Article 4ACHR and thus required the state to provide effective prosecution as a remedy. Articles 8 and 25 of the ACHR, respectively, provide the right to be heard and to an effective remedy to persons who claim a violation of the American Convention. Article 1(1) imposes a general duty on the state to ensure the full exercise of these rights. According to the Inter-American Court, Articles 25 and 8 are linked: the former requires the state to provide human rights victims with access to a criminal trial as reparation for the violation, and the latter requires the criminal trial be conducted in a way that guarantees procedural fairness to victims.

As mentioned above, the Inter-American Courthas held that these provisions also require states to conduct criminal trials in order to guarantee family members the right to know the truth. The Court held that there is a direct correlation between the state denying human rights victims access to effective justice and their right to learn the truth, which includes obtaining knowledge of the circumstances of the crime and the identification of those responsible (see the Bámaca Velásquez case, reproduced above).

In the following case decided by the European Court, Mr. Agit Salman, the applicant’s husband, suffered a heart attack while in state custody. The medical evidence established that he had been subjected to use of force which had led to cardiac arrest. The applicant submitted that, where an individual was taken into custody in good health and then dies, the death is attributable to the actions of the authorities in the absence of a plausible explanation.

Salman v. Turkey

European Court of Human Rights

Application No. 21986/93

Judgement of 27 June 2000

Keywords: life - custody, death in - effective investigation – torture - effective remedy


B. The Court’s assessment

1. The death of Agit Salman

97. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so asto make its safeguards practical and effective (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46,§ 146-47).

98. The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor, however, to be taken into account in assessing its necessity. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see the McCann and Others judgment cited above, p. 46,§ 148-49).

99. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities,Selmouni v. France Selmouni v. France   [GC], no. 25803/94,§ 87, ECHR 1999-V). The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies.

100. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see the Ireland v. the United Kingdom   judgment of 18 January 1978, Series A no. 25, pp. 64-65,§ 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.

101. The Court finds that the Commission’s evaluation of the facts in this case accords with the above principles.

102. Agit Salman was taken into custody in apparent good health and without any pre-existing injuries or active illness. No plausible explanation has been provided for the injuries to the left ankle, bruising and swelling of the left foot, the bruise to the chest and the broken sternum. The evidence does not support the Government’s contention that the injuries might have been caused during the arrest, or that the broken sternum was caused by cardiac massage. The opinion of Dr Kirangil that the chest bruise pre-dated the arrest and that Agit Salman died of a heart attack brought on by the stress of his detention alone and after a prolonged period of breathlessness was rebutted by the evidence of Professors Pounder and Cordner. In accepting their evidence as to the rapidity of death and the probability that the bruise and broken sternum were caused by the same event – a blow to the chest – the Commission did not fail to accord Dr Kirangil’s evidence proper weight nor did it give undue preference to the evidence of Professors Cordner and Pounder. It may be observed that Dr Kirangil signed the Istanbul Forensic Medicine Institute report which was in issue before the Commission and on that basis could not claim to be either objective or independent. There is no substance, moreover, in the allegations of collusion between the two professors made by the Agent of the Government at the hearing.

103. The Court finds, therefore, that the Government have not accounted for the death of Agit Salman by cardiac arrest during his detention at Adana Security Directorate and that the respondent State’s responsibility for his death is engaged. It follows that there has been a violation of Article 2 in that respect.

2. Alleged inadequacy of the investigation


109. The Court concludes that the authorities failed to carry out an effective investigation into the circumstances surrounding Agit Salman’s death. This rendered recourse to civil remedies equally ineffective in the circumstances. It accordingly dismisses the criminal and civil limb of the Government’s preliminary objection (see paragraphs 84-88 above) and holds that there has been a violation of Article 2 in this respect.



118. The applicant complained that she had not had an effective remedy within the meaning of Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

119. The Government argued that the investigation into the incident and the prosecution and trial of the police officers provided an effective remedy into the applicant’s allegations. Furthermore, she had failed to avail herself of the possibility of appeal against the acquittal of the police officers and had therefore not made use of the available effective remedies.


121. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy judgment cited above, p. 2286,§ 95; the  Aydin v. Turkey judgment of 25 September 1997,—Reports 1997-VI, pp. 1895-96,§ 103; and the Kaya judgment cited above, pp. 329-30,§ 106). Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and including effective access for the complainant to the investigation procedure (see the Kaya judgment cited above, pp. 330-31,§ 107).

122. On the basis of the evidence adduced in the present case, the Court has found that the respondent State is responsible under Articles 2 and 3 of the Convention for the death and torture in custody of the applicant’s husband. The applicant’s complaints in this regard are therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23,§ 52, and the Kaya and Yasa judgments cited above, pp. 330-31,§ 107, and p. 2442,§ 113, respectively).

123. The authorities thus had an obligation to carry out an effective investigation into the circumstances of the death of the applicant’s husband. For the reasons set out above (see paragraphs 104-09), no effective criminal investigation can be considered to have been conducted in accordance with Article 13, the requirements of which may be broader than the obligation to investigate imposed by Article 2 (see the Kaya judgment cited above, pp. 330-31,§ 107). The Court finds, therefore, that the applicant has been denied an effective remedy in respect of the death of her husband and thereby access to any other available remedies at her disposal, including a claim for compensation.

Consequently, there has been a violation of Article 13 of the Convention.


The decision in this case is consistent with the case-law of the European Court which has found a violation of Article 13 ECHR in almost every case in which there is no criminal investigation into alleged right to life or personal integrity violations, or where the investigation is inadequate or ineffective. The language of Article 13 ECHR is very similar to Article 25 ACHR, (and in several respects Articles 7, 21 and 26 of the  African Charter on Human and Peoples’ Rights).

Article 13 provides that every person alleging a violation of the European Convention  has the right to an effective remedy before a national authority. By finding a separate violation of Article 13, the Court establishes that a state’s failure to carry out an effective investigation when somebody has been killed violates the individual victim’s right to an effective remedy. The European Court specifically held that, given the importance of the right to life, Article 13 requires the state to undertake a thorough and effective investigation that can lead to the identification and punishment of those responsible, in addition to the payment of compensation where appropriate. Although victims’ rights under Article 13 coexist with the procedural duties to investigate violations of the right to life (see  The duty to carry out an effective official investigation when individuals have been killed or disappeared), the European Court has held that the requirements under Article 13 are broader than the procedural duties, because Article 13 not only requires an effective investigation, but also requires that the entire system secure that the remedy be effective.

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