7.4.2 Jurisprudence

'Due diligence' was first used in Velasquez Rodriguez v. Honduras (1988). The Inter-American Court of Human Rights introduced this term as the standard against which the State's behaviour could be tested. The test resulted in a judgement that Honduras had violated international human rights obligations. The case concerned the question whether Articles 4 (Right to Life), 5 (Right to Humane Treatment) and 7 (Right to Personal Liberty) of the ACHR had been violated, because of the involuntary disappearance of Mr. Velasquez. The Court argued that Honduras could be held liable: "not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention."1 [Emphasis added]. The Court rationalised:

The Court explained that the State has a legal duty to take reasonable steps to prevent human rights violations. It was stressed that every situation involving a human rights violation committed within its jurisdiction must be seriously investigated by the State. The Court considered it a failure if "the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible."3 Even when the violations have been caused by private persons or groups, the State is expected to take action to avoid impunity: it should identify those responsible and impose the appropriate punishment. Also, it is the State's duty to ensure that the victim receives adequate compensation.4 The Court reasoned that the State's "duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result." The concept of due diligence was further elaborated by the Court in its statement that the investigation "must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty." Compliance therewith does not suffice "without an effective search for the truth."5 Elements that were important in this case were (i) the failure of the judicial system to act upon the writs brought before various tribunals; (ii) no judge had access to the places where Velasquez might have been detained; (iii) the executive branch failed to carry out a serious investigation to establish the fate of Velasquez; and (iv) public allegations of a practice of disappearances had not been investigated.

On the other side of the Atlantic, the European Court of Human Rights (European Court) deducted from a number of substantive provisions of the ECHR that circumstances may arise in which a State would have a positive obligation to protect individuals' rights. E.g., according to this Court, the Right to Life of article 2 entails the obligation to take appropriate steps for the safeguarding of life within its jurisdiction.6 A similar due diligence standard as applied in Velasquez was used by the European Court in Osman v. United Kingdom (1998).7 Mrs. Osman's husband had been killed by her son's former teacher. Her son was seriously injured in the same incident. The case concerned the alleged failure of the authorities to protect the right to life of Mr. Osman and his son from the threat posed by the teacher. The Court noted that it was not disputed that the right to life may in well-defined circumstances imply "a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual." As to the scope of that obligation the Court considered that:

This consideration clearly brings in the proportionality factor which, according to Shaw, forms part of the concept of due diligence as applied under environmental law (the introductory paragraph of section 7. ). Furthermore, the Court expressed that it was important to assess what the authorities knew or ought to have known about the imminent risk that a violation of a human right was to take place:

However, based on the factual evidence presented in this case, the Court considered that the police did not have nor ought to have such knowledge. The results from the investigation conducted by the police - which included exchanging information with a psychiatrist - did not suggest that the son was at risk from the teacher, less so that his life was in danger. The Court's conclusion recorded no violation of article 2 by the United Kingdom authorities.

After the Osman case, the case law of the European Court and the European Commission of Human Rights developed further on positive state duties in relation to violations by non-State actors. A useful overview of the Court's position on the due diligence standard in various cases was presented in the brief submitted by Interights in the domestic violence case of Nahide Opuz v. Turkey (2001).9 Interights, the 'international centre for the legal protection of human rights', was a third party intervener on the case. In this case, Opuz had alleged that the Turkish authorities had failed to protect the right to life of her mother and that they were negligent in the face of repeated violence, death threats and injury to which she and her mother were subjected. The Court concluded:

The Court concluded that the Turkish authorities had not shown due diligence in preventing the violence and had therefore failed to protect the right to life of the applicant's mother.

Examining the depth of a State's due diligence obligation, it appears that the European Court applies a 'knew or ought to have known' standard.10 Beyond the obligation to take action when an official complaint is lodged, or - under special circumstances - when the victims' complaints have been withdrawn

(Nahide Opuz), the Court has held that "even in the absence of an express complaint, an investigation should be undertaken if there are other sufficiently clear indications that [serious violations] might have occurred."11 This should be understood in a context which is particularly opaque and where victims are often reluctant to report violence. Certainly in the event that prior cases of violence have been reported, there can be little doubt that the State has sufficient 'knowledge' to trigger the requirement of close scrutiny and adequate measures of protection. This is all the more apparent in situations of a general pattern of abuse, such as was the case in Kaya v. Turkey.12A particularly high degree of vigilance is then required of the State.

Along the same lines was Maria da Penha v. Brazil (2001), in which case the Inter-American Commission on Human Rights stressed that the State's obligation is not limited to eliminating and punishing violence, but also includes the duty of prevention.13 Referring, amongst others, to the State duty defined in article 7(b) of the Convention of Belem do Para to exercise due diligence to prevent human rights violations (section 7.4.1 supra), the Commission argued:

The Commission concluded that Brazil had violated Ms. Fernandes' rights by delaying for more than 15 years the prosecution of her abusive husband for the attempted murder, despite the clear evidence against the accused and the seriousness of the charges. The Commission found that the case could be viewed as "part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors." Subsequently, the specific obligation which the Convention of Belem do Para imposes on States to take additional measures to affirmatively protect the rights of women - in particular, vulnerable groups of women such as migrant women and young women and girls - has been confirmed in Ximenes-Lopes v. Brazil; Pueblo Bello Massacre v. Colombia;andMapiripan Massacre v. Colombia.15

In A.T. v. Hungary, the CEDAW Committee expressed the view that Hungary had failed to fulfil its obligations and had thereby violated the rights of the individual under the CEDAW, including the Articles 2(e) and 5(a) (mentioned in section 7.4.1 supra).16The Committee recommends to Hungary to undertake the following remedies:

Despite the growing popularity of the standard of due diligence as a tool for promoting greater State accountability, this standard has also been criticised. Carin Benninger-Budel contends that the content and scope of due diligence obligations remain vague. Against the backdrop of contemporary issues that pose threats to women's rights, she has examined how the due diligence standard and other strategies can be applied as useful mechanisms to combat violence against women in various cultures worldwide.17 With the same focus, a critical analysis was made in 2006 by Professor Ineke Boerefijn.18 She opined that State efforts based on due diligence do not suffice. She argued that if violence against women is still daily practice in many countries, exercising due diligence is apparently not enough. She argues that a State must guarantee a satisfactory situation, i.e. without violence. In other words: the fulfilment of a human right obligation should not be measured by employing efforts, but -instead - by realising results.19