Putting the Victim’s families first: The comparative analysis of the Inter-American Court of Human Rights and the European Court of Human Rights on the Right to be Free from Torture in cases of Enforced Disappearances

Abstract

This article aims to assess the American Convention on Human Rights in relation to the European Convention on Human rights on the topic of decisions made in cases of enforced disappearances. Case law, peer-reviewed articles, books, and legislation were used in the course of the article. The argument in this article is that the Inter-American Court of Human Rights is more responsive to the vulnerability of the applicant to the Court, in cases of enforced disappearances, in comparison to the European Court of Human Rights. This is because the Inter-American Court uses a lesser standard of proof than beyond a reasonable doubt when assessing violations of the right to be free from torture. In contrast, the European Court uses the standard of beyond a reasonable doubt only when dealing with allegations of violations of Article 3 of the ECHR, which is the prohibition of torture. This use of the standard is inappropriate given that the role of international human rights law is not to be punitive, for that is the role of a criminal court, but rather to give reparation and redress to the victims and families of victims of human rights violations. The article finds that the Inter-American Court is more progressive than the European Court when addressing the right to be free from torture in cases of enforced disappearances due to its extensive experience, its lack of a rigid standard of proof, and its opinion on the responsibility of burden of proof.