Decision
The Committee takes note of the State party’s argument to the effect that a number of circumstances are still being investigated in order to establish the facts. In this regard, the author maintains that the present communication falls within the scope of an exception to the rule requiring the prior exhaustion of all available domestic remedies, which is set out in article 5, paragraph 2 (b), of the Optional Protocol, owing to the length of time that has elapsed without any domestic procedures having been concluded. The criminal investigation in fact began on 16 June 2003, and since that date, no conclusions seem to have been reached regarding the circumstances of Blanco Domínguez’s death. The Committee recalls that it is precluded from considering any communication unless it has been ascertained that all available domestic remedies have been exhausted. For the purposes of article 5, paragraph 2 (b), of the Optional Protocol, however, domestic remedies must be both effective and available, and must not be unduly prolonged. In the circumstances of the present case, the Committee notes that the State party has failed to explain why no progress has been made in the investigation nor has it provided a possible date for its conclusion. Consequently, the Committee considers that domestic remedies have been unreasonably prolonged and finds that article 5, paragraph 2 (b), of the Optional Protocol does not preclude it from considering the complaint.8 6. Considering that the other requirements for admissibility have been met, the Committee declares the communication admissible insofar as it raises issues under articles 6 and 2, paragraph 3, of the Covenant. Consideration of the merits 7. The Committee has considered the present communication in the light of all the information made available by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. 7. The Committee takes note of the author’s allegations to the effect that her husband was the victim of an arbitrary execution as a result of the unlawful, unnecessary and disproportionate use of force by police officers during a demonstration. She alleges that he was shot at close range after surrendering and subsequently struck on the head. She also alleges that the investigation into the incident was not conducted efficiently, that the circumstances surrounding the incident have still not been clarified and that responsibility has not been determined despite the time that has elapsed. The Committee also notes the State party’s general argument that police and judicial procedures were carried out in strict compliance with applicable constitutional and legal provisions and that such procedures were conducted in conformity with the principles concerning the lawful and reasonable use of force. The Committee further notes that, according to the State party, a number of circumstances are still being investigated in order to establish the facts. However, the State party has submitted no specific evidence shedding light on how or by whom Blanco Domínguez was fatally wounded. 7. With regard to the author’s contention that article 6 of the Covenant was violated, the Committee recalls 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. The Committee refers to its jurisprudence, according to which both a criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore arise as a result of a State party’s failure to take appropriate measures to investigate and punish or redress such a violation.11 7. The Committee also recalls that, under article 2, paragraph 3, of the Covenant, States parties should ensure that all persons have accessible, effective and enforceable remedies in order to claim the rights embodied in the Covenant. The Committee further recalls its general comment No. 31, on the nature of the general legal obligation imposed on States parties, to the effect that, when the investigations reveal violations of certain Covenant rights, States parties must ensure that those responsible are brought to justice.12 7. The Committee considers that the State has an obligation to protect the life of persons under its jurisdiction and, in the present case, the State party had the obligation to protect the life of the demonstrators. The grave circumstances surrounding the death of Blanco Domínguez call for an effective investigation into the possible involvement of the State party’s police forces. Despite the foregoing, the State party has not explained why the investigation that began on 16 June 2003 has made so little progress and still not reached any definitive conclusion. The Committee takes note of the author’s statement, which has not been contested by the State party, to the effect that no autopsy was carried out and that the projectile extracted from the body of Blanco Domínguez was not examined and has been misplaced, which now makes it impossible to elucidate particularly important aspects of the investigation. The Committee also recalls that the burden of proof cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to evidence and that frequently the State party alone has access to relevant information. It is implicit in article 4, paragraph 2, of the Optional Protocol, that the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its authorities, and to furnish to the Committee whatever information it has available. In view of the foregoing, the Committee concludes that the facts before it reveal a violation of article 6, paragraph 1, of the Covenant, and of article 2, paragraph 3, of the Covenant, read in conjunction with article 6, paragraph 1.14 8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 6, paragraph 1, and of article 2, paragraph 3, read in conjunction with article 6, paragraph 1, of the Covenant. 9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, which includes an effective and complete investigation of the facts, the prosecution and punishment of those guilty and full reparation, including appropriate compensation. The State party is also under an obligation to prevent similar violations in the future. 10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views and to disseminate them widely. [Adopted in English, French and Spanish, the Spanish text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]