Effective investigation vests on the state a responsibility to carry out due diligence
into any matter brought within their knowledge and likely to affect the rights of
others.
In CABRERA GARCIA AND RODIFO MONTIEL FLORES 735/01 Inter-Am
CT.HR (2004), the court found that the lack of an effective investigation or the lack
of full analysis into the facts when faced with serious allegations generated
responsibility for the Mexican State.
The Respondent in the instant case had an unflinching duty to effectively investigate
the matter to ascertain the perpetrators and the extent of their involvement. Prior to
demolition, Respondents had the duty to investigate and ascertain who the actual
owner of the property is and whether or not he was involved in the alleged act. This
practically would be the plank upon which any further action will be carried out.
For an investigation to qualify as effective, the authorities must show that they have
taken reasonable steps available to them to secure all evidence concerning the
incident culminating into a comprehensive report.
There is nothing before this court to show how the Respondents arrived at the
conclusion that the Applicants were involved in the kidnap act and that there was
indeed an investigation into the matter. No report in that regard, no statement from
the suspects, no evidence of any charge before any court on the said allegation, no
court order and no prior demolition notice to prove that the Respondent actually did
the needful before demolishing the Applicants’ property.
In ILHAN V. TURKEY, Judgment of 27 June 2000 p.114, where an individual
had an arguable claim that he had been tortured or subjected to ill treatment by the
state. An effective investigation was mandated by Article 13, and there had been
significant defects in the domestic inquiry. The court held that no effective remedy
has been provided and therefore a violation of Article 13 of the ECHR.
The decision to demolish a building without proper investigation and fair hearing
falls short of the standard of reasonableness. The agents of the Respondent solely
demolished the Applicants house based on a suspicion or allegation that one of the
residents of the house was a kidnap suspect. Equally it has not been shown that the
Respondent in their capacity have the legal right suo moto to demolish the house of
citizens without recourse to due process of the law. Such conduct is at best described
as an unwarranted use of governmental powers.
It is trite that the rules of state responsibility applies to international human rights
law. Article 122 of the UN Draft Article on Responsibility of States for
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