PASTOR RAYMOND KOH
on evidence which is probably true and which does not need to be proved to be
beyond reasonable doubt.
Burden of Proof in Cases of Enforced Disappearance
71.
On the burden of proof, that is, on whose shoulders lie the burden of proving the
case, the approach taken in interna�onal human rights cases on enforced
disappearances, is illustra�ve to show that the burden of proof lies on the State
itself. This was held by various courts as follows:
71.1.
Bamaca-Velasquez v Guatemala17, the Inter-American Court of Human
Rights held as follows:
"As this Court has o�en repeated, in cases of forced
disappearance, the State's defense cannot rely on the
impossibility of the plain�ff to present evidence in the
proceedings since, in such cases, it is the State that controls the
means to clarify the facts that have occurred in its jurisdic�on
and, therefore, in prac�ce, it is necessary to rely on the
coopera�on of the State itself in order to obtain the required
evidence.
...In cases such as forced disappearance - and others... - the State
has be�er possibili�es of assuming the func�on of proving what
it denies, than the individual to prove what he affirms”
71.2.
Godinez Cruz v Honduras 18, the Inter-American Court of Human Rights
held:
“141. In contrast to domes�c criminal law, in proceedings to
determine human rights viola�ons the State cannot rely on the
defense that the complainant has failed to present evidence when
it cannot be obtained without the State's coopera�on.
142. The State controls the means to verify acts occurring within
its territory. Although the Commission has inves�gatory powers,
it cannot exercise them within a State's jurisdic�on unless it has
the coopera�on of that State.”19
17
IACHR Series C No 70 (Official Cita�on); [2000] IACHR 7 (Other Reference); IHRL 1453 (IACHR 2000) (OUP reference);
IACHR Series C No 91 (Official Cita�on); [2002] IACHR 1 (Other Reference); IHRL 1474 (IACHR 2002) (OUP reference)
18
IACHR Series C no 10 (Official Cita�on); IHRL 1391 (IACHR 1990) (OUP reference)
19
See also Velasquez-Rodriguez v Honduras (IACtHR, 1988).
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