appear and testify. The same shall apply to any witness. To this end, the
investigative authorihJ shall be entitled to issue summonses to witnesses, including
any officials allegedly involved, and to demand the production of evidence.
11
148.
The Commission also takes account of the jurisprudence of the European
Court on Human Rights in determining what amounts to an effective
investigation, specifically for the purposes of pronouncing on whether or not the
State conducted its due diligence. Endorsing the reasoning in Mikheyev v. Russia,
the European Court decided in Pihoni v Albania that:
lack of conclusions arising from any given investigation does not, by itself,
mean that it was ineffective. Not even; investigation slwuld necessarily be
successful or come to a conclusion which coincides with the claimant's account of
events; however, it should in principle be capable of leading to the establishment of
the facts of the case and, if the allegations prove to be true, to the identification nnd
punishment of those responsible." .71
11
• • •
149.
In the present case, there is demonstrated evidence in the record as well as
in the submissions of both parties that an investigation by the police of the
Respondent State was indeed initiated and undertaken, but the effectiveness of
said investigation in under contestation. The Respondent State initiated the
Investigation on the 12th of October 2017 when the victim appeared at the Police
and was processed by Officer Dumeni. 72 The victim was on the next day (13
October 2017) taken to the Gender-Based Division by one Officer Van Wyk and
placed in Safe Haven Shelter, where she met a psychologist. On that same day, it
is alleged that the victim ran away from the Shelter and made her way to the
Kenyan High Commission, where she was then arrested and taken to Klein
detention facility. The Commission now turns to analyse the issues raised by the
Complainant against the investigation conducted by the Respondent State
Speed of investigation
The Commission notes that the Respondent State'
handle this case with the urgency it required. It is noted:·
victim was only taken on the 17th of October, despite
12th and being brought back to custody on the 13
150.
c .
... '
n Pihoni v Albania 74389/13 Merits ECHR ( !.!!
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)para 89
n Respondent State Submissions Annex 9
35