The right to the truth in the case-law of the Strasbourg Court
The right to the truth in case of serious human rights violations has been traditionally associated with contexts affected by transitional justice processes and has seen its earliest developments in the Inter-American System for the protection of human rights. Nevertheless, questions regarding the truth have also been recently directed at the European courtrooms and, in particular, at the European Court of Human Rights.
The “right to the truth” is not enshrined in the European Convention on Human Rights, consistently with the absence of codification of such a right in legally binding texts at the regional, national or international level. Consequently, the interpretative work of the ECtHR takes on considerable importance in the European framework. In this regard, however, it is worth mentioning that the Strasbourg Court has recognized the right to the truth only gradually. In the first decisions on the subject, in fact, the lack of state investigations aimed at bringing the truth to light concerning circumstances involving serious human rights violations did not correspond to an infringement of a genuine “right to the truth” but to a violation of Article 3 ECHR, which prohibits inhuman or degrading treatments, among others. In this respect, in the case of Kurt v. Turkey, the Court found that the absence of information about the disappearance of the applicant’s son, who was taken into custody under the responsibility of the Turkish authorities, made the respondent state responsible for the suffering caused to the victim’s mother.
Over time, the right to truth has been defined more in detail. In the cases Cyprus v. Turkey and Varnava et al. v. Turkey, the Court reiterated that state authorities must carry out effective investigations into alleged violations of human rights capable of clarifying the truth, otherwise the victims’ families would be condemned to perpetual agony and suffering amounting to a violation of Article 3 ECHR. However, the judges stressed that this obligation stems also from Articles 2 and 5 ECHR, considered in their procedural dimension: the protection of the rights to life (Art. 2 ECHR) and liberty and security (Art. 5 ECHR) requires, in fact, effective, prompt and thorough investigations aimed at clarifying the circumstances surrounding their alleged violation. Later on, in deciding the case of Association "December 21, 1989" and others v. Romania, the Court explicitly referred for the first time to the “right to know the truth”, which belongs not only to the victims of gross human rights violations, but also to their families and heirs. Again, the right in question was anchored to the procedural dimension of Article 2 ECHR.
The El-Masri v. Macedonia case, however, represents the turning point in the Strasbourg Court’s jurisprudence: the Grand Chamber ruled that inadequate investigations undermine the “right to the truth” and contribute to ensuring substantial impunity. More in detail, the Court found the violation of Articles 3 and 5 ECHR in their procedural dimension, given the failure of the Macedonian authorities to carry out an effective investigation into the applicant’s allegations of arbitrary detention and ill-treatment. In addition, the respondent State was held responsible for the violation of Article 13 ECHR (right to an effective remedy), for having failed to guarantee to the applicant any effective domestic remedy.
Importantly, the concurring opinion of judges Casadevall and Lopèz Guerra was very critical of the analysis performed by the Grand Chamber: in their perspective, the right to the truth cannot be considered an autonomous right; rather, it is an ancillary aspect of the obligations arising from Articles 2 and 3 ECHR. In other words, it overlaps with the right to a serious and effective investigation.
A further aspect emerging from the El-Masri case consists in the broadening of the individuals entitled to the right to the truth: given the global impact of the phenomenon of extraordinary renditions suffered by the applicant, the ECtHR held that other victims of similar crimes and the general public also had an interest in knowing the facts. In this last category, the Court counted international and intergovernmental organizations, UN human rights bodies, the Council of Europe and the European Parliament, as well as the global civil society.
In the decisions following the El-Masri case, the explicit mention of the “right to the truth” appears only occasionally, with the result that, for the time being, the ECtHR does not seem to have recognized an autonomous right to the truth. Nevertheless, it enjoys indirect protection in the European regional context, since, as shown, it is subsumed under the procedural obligation to carry out effective, prompt and thorough investigations arising from Articles 2, 3 and 5 ECHR and, to some extent, Article 13 ECHR.
(Focus by Tania Pagotto and Chiara Chisari)
D. Groome, Principle 2. The Inalienable Right to the Truth, in F. Haldemann, T. Unger, eds., The United Nations Principles to Combat Impunity. A Commentary, Oxford, 2018, 59
J.E. Méndez, F.J. Bariffi, Right to the Truth, in Max Planck Encyclopedias of Public International Law (https://www.corteidh.or.cr/tablas/r17382.pdf)
Y. Naqvi, The right to the truth in international law: fact or fiction?, in International Review of the Red Cross, vol. 88, n. 2, 2006, 245
T. Pagotto, C. Chisari, Il riconoscimento del diritto alla verità dall’America latina all’Europa. Evoluzioni e prospettive di un diritto in via di definizione, in Rivista di Diritti Comparati, n. 2, 2021, 57
A.M. Panepinto, The right to the truth in international law: The significance of Strasbourg's contributions, in Legal Studies, vol. 37, n. 4, 2017, 739
J.A. Sweeney, The Elusive Right to Truth in Transitional Human Rights Jurisprudence, in International & Comparative Law Quarterly, vol. 67, n. 2, 2018, 353
S. Szoke Burke, Searching for the Right to Truth: The Impact of International Human Rights Law on National Transitional Justice Policies, in Berkeley Journal of International Law, vol. 33, n. 2, 2015, 526
A. Vedaschi, Il diritto alla verità e le misure antiterrorismo nella giurisprudenza della Corte di Strasburgo, in L. Forni, T. Vettor, eds., Sicurezza e libertà in tempi di terrorismo globale, Torino, 2018, 167