Reversing the burden of proof before human rights bodies

Abstract

ABSTRACT This article considers the allocation of the burden of proof before international human rights bodies, with attention to six different judicial and quasi-judicial bodies – the European Court of Human Rights, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, and the Human Rights Committee. In general, all of the bodies surveyed have adopted a flexible approach to evidence law questions. While a flexible approach has merits, it also has the potential to lead to inconsistencies, as well as to situations in which rights bodies fail to take fully into account the challenges claimants face in terms of accessing justice. In this context, this article argues for the adoption of a more consistent approach, based upon but further elaborated from the standards recognised by the bodies surveyed. In particular, the article highlights two situations in which the burden of proof should be reversed. First, the burden should be reversed in cases where there is differential access to information. Second, the burden should be reversed where a prima facie case can be linked to evidence of a systemic pattern of violations.