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12Jan98
Report of the Working Group on Enforced or Involuntary Disappearances
UNITED NATIONS
Economic and Social CouncilDistr.
GENERALE/CN.4/1998/43
12 January 1998Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 8 (c) of the provisional agendaQUESTION OF THE HUMAN RIGHTS OF ALL PERSON SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT QUESTION OF ENFORCED OR INVOLUNTARY DISAPPEARANCES
Report of the Working Group on Enforced or Involuntary Disappearances
CONTENTS
I. ACTIVITIES OF THE WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES IN 1997
A. Meetings and missions of the Working Group
B. Communications
C. Methods of work
D. Draft international convention on the prevention and punishment of enforced disappearances
[...]
F. Compensation, presumption of death and exhumation
G. Implementation of the Declaration on the Protection of All Persons from Enforced Disappearance[...]
Morocco[...]
IV. CONCLUSIONS AND RECOMMENDATIONS
V. ADOPTION OF THE REPORTAnnexes
I. Decisions on individual cases taken by the Working Group during 1997
[...]
1. The present report of the Working Group on Enforced or Involuntary Disappearances is submitted pursuant to Commission on Human Rights resolution 1997/26, entitled "Question of enforced disappearances". |1| In addition to the specific tasks entrusted to the Working Group by the Commission in this resolution, the Group has also taken into account other mandates stemming from a number of resolutions adopted by the Commission |2| entrusted to all special rapporteurs and working groups. All these tasks have been given due attention and consideration by the Working Group in the course of 1997; in view of the page limit imposed on all reports, however, the Working Group decided not to reproduce the content of these resolutions as it has done in the past.
2. In addition to its original mandate, which is to act as a channel of communication between families of the disappeared persons and the Governments concerned, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the disappeared persons clarified, the Working Group has been entrusted by the Commission with various other tasks. In particular, the Working Group is to monitor States' compliance with their obligations deriving from the Declaration on the Protection of All Persons from Enforced Disappearance. |3| The Working Group has taken the Declaration into account, in particular in adopting observations on individual countries. As last year, these country-specific observations have been prepared on all countries with more than 50 alleged cases of disappearance, or where more than 5 cases were reported during the period under review. All country-specific observations are to be found at the end of the respective country chapters in part II of the present report.
3. As in previous years, the Working Group has continued to apply the urgent action procedure in cases that allegedly occurred within three months preceding the receipt of the report by the Group. This year the Working Group sent urgent action appeals to Governments in respect of 140 cases to the following Governments: Algeria, Burundi, Colombia, Ecuador, India, Indonesia, Iran (Islamic Republic of), Lebanon, Libyan Arab Jamahiriya, Mexico, Morocco, Philippines, Sri Lanka, Tajikistan, Tunisia, Turkey, Zambia. An urgent action appeal was also sent to the Palestine Authority. It has also promptly intervened with the Governments of Colombia and Mexico on cases in which relatives of missing persons, or other individuals or organizations which have cooperated with the Group, or their legal counsel, are said to have been subjected to intimidation, persecution or other reprisals.
4. The total number of cases transmitted by the Working Group to Governments since the Group's inception stands at 47,758. The total number of cases being kept under active consideration as they have not yet been clarified now stands at 44,940. The number of countries with outstanding cases of alleged disappearance was 63 in 1997. During the period under review, the Working Group received some 1,111 new cases of disappearance in 26 countries, 180 of which allegedly occurred in 1997.
5. As in the past, the present report reflects only communications or cases examined before the last day of the third annual session of the Working Group, which was 21 November 1997. Urgent action cases which may have to be dealt with between that date and the end of the year, as well as communications received from Governments and processed after 21 November 1997, will be reflected in the Working Group's next report.
I. ACTIVITIES OF THE WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES IN 1997
A. Meetings and missions of the Working Group
6. The Working Group held three sessions in 1997. The fifty-first session was held in New York from 12 to 16 May, and the fifty-second and fifty-third sessions were held at Geneva from 18 to 22 August and from 12 to 21 November, respectively. During its 1997 sessions, the Working Group met with representatives of the Governments of Guatemala, the Islamic Republic of Iran, Mexico, the Philippines, Uruguay and Yemen.
7. The Group also met with representatives of human rights organizations, associations of relatives of missing persons and families or witnesses directly concerned with reports of enforced disappearances.
8. The Working Group decided to consider the dates for the visit to Colombia during its 1998 sessions. To date it has received no reply from the Government of Iraq to its letter dated 21 July 1995 requesting a visit.
9. By letter dated 28 May 1997, the Government of Turkey informed the Working Group that its request, made on 21 July 1995, to visit Turkey had been accepted by the Government. It was proposed that the visit take place in the fourth quarter of 1997. Unfortunately, it was not possible to find a mutually convenient date which would have allowed the Working Group to undertake a mission and report to the present session of the Commission on Human Rights.
The Group looks forward to carrying out the mission during 1998.
10. By note verbale dated 16 October 1997, the Government of the Republic of Yemen invited the Working Group to visit that country. The Working Group has accepted the invitation, and is discussing with the Government a mutually convenient date.
11. By letter dated 19 November 1997, the Government of the Islamic Republic of Iran invited the Working Group to visit that country. The Working Group has accepted the invitation and a mutually convenient date is being sought.
12. In resolution 1997/58 on the situation of human rights in Zaïre, the Commission requested the Special Rapporteurs on the situation of human rights in Zaïre and on extrajudicial, summary or arbitrary executions, as well as a member of the Working Group on Enforced or Involuntary Disappearances, to carry out a joint mission to investigate allegations of massacres and other issues affecting human rights which arose from the situation prevailing in eastern Zaïre since 1996. The Working Group on Enforced or Involuntary Disappearances was represented by Mr. Jonas Foli. The report on this mission is contained in document E/CN.4/1998/64.
13. During the period under review, the Working Group transmitted 1,111 new cases of enforced or involuntary disappearance to the Governments of Algeria, Colombia, Ecuador, Ethiopia, India, Indonesia, Iran (Islamic Republic of), Iraq, Lebanon, the Libyan Arab Jamahiriya, Mexico, Morocco, Peru, the Philippines, the Russian Federation, Rwanda, Sri Lanka, Tajikistan, Tunisia, Turkey, Ukraine, the United Arab Emirates and Zambia; 140 of these cases were sent under the urgent action procedure. It also transmitted one case under the urgent action procedure to the Palestinian Authority. Of the newly reported cases, 180 of them allegedly occurred in 1997, and relate to Colombia, Ecuador, India, Indonesia, Lebanon, Mexico, Morocco, the Philippines, Turkey, Sri Lanka, Zambia and the Palestinian Authority. During the same period, the Working Group clarified 121 cases in the following countries: Algeria, Argentina, Brazil, Chile, China, Colombia, Egypt, Gambia, Guatemala, Honduras, India, Indonesia, Iran (Islamic Republic of), Lebanon, Libyan Arab Jamahiriya, Mexico, Morocco, Peru, Saudi Arabia, Syrian Arab Republic, Tajikistan, Tunisia, Turkey and Zambia.
14. Many of the other cases received by the Working Group were referred back to the sources as they lacked one or more elements required by the Working Group for their transmission, or because it was not clear whether they fell within the Working Group's mandate; other cases were considered inadmissible within the context of that mandate.
15. As in previous years, the Working Group received reports and expressions of concern from non-governmental organizations, associations of relatives of disappeared persons and individuals about the safety of persons actively engaged in the search for missing persons, in reporting cases of disappearance or in the investigation of cases. In some countries, the mere fact of reporting a disappearance entailed a serious risk to the life or security of the person making the report or to his or her family members. In addition, individuals, relatives of missing persons and members of human rights organizations were frequently harassed and threatened with death for reporting cases of human rights violations or investigating such cases.
16. Taking into account the ever-increasing number of United Nations field operations with human rights components, and the field offices of the High Commissioner for Human Rights, the Working Group has continued this year to address itself to these offices in an effort to take advantage of their unique position on the ground in order to improve its information flow with regard to disappearances. Information in this respect is reflected in the appropriate country chapters.
17. During the course of the year, the Working Group undertook a review of its methods of work and decided that in cases in which it considers that it can no longer play any useful role in trying to elucidate them, to discontinue consideration of such cases, in particular, if the source is no longer in existence, or in cases in which the families no longer have an interest in pursuing the matter. The discontinuation of cases is reflected in the country chapters and the statistical summary.
D. Draft international convention on the prevention and punishment of enforced disappearances
18. The Working Group has continued to follow with close interest the progress made in the drafting of an international convention on the prevention and punishment of enforced disappearance.
19. At its fifty-first session in New York, the Working Group met with representatives of several non-governmental organizations to discuss the draft convention, in particular the question of a monitoring mechanism. A monitoring body would be essential in order to supervise the compliance of State parties. However, the Working Group continues to be of the opinion that in order to avoid a further proliferation of treaty monitoring bodies, this task should either be entrusted to one of the existing treaty monitoring bodies, for example by adopting a further optional protocol to the International Covenant on Civil and Political Rights, or to the Working Group on Enforced or Involuntary Disappearances. In the latter case, the Working Group would be prepared, in analogy to the double role of the Inter-American Commission on Human Rights, to examine the possibility of continuing to function as a thematic mechanism of the United Nations Commission on Human Rights with respect to all countries of the world where cases of disappearances are alleged to occur and, in addition, to function as a treaty monitoring body with respect to States parties to the future convention on disappearances.
20. The Working Group was subsequently invited to participate in the second expert meeting on the draft international convention, held in Geneva on 24 and 25 November 1997. Since this meeting took place after the adoption of the present report, relevant information will be reflected in the Group's report next year.
[...]
F. Compensation, presumption of death and exhumation
23. In recent years, a number of countries have started to compensate financially victims of enforced disappearance. The legal, procedural and financial aspects, however, vary from country to country. As the Working Group considers this issue to be of the utmost importance, on 27 June 1997 it wrote to those countries with more than 20 cases of alleged disappearance pending on its files to seek information on each country's practice in this respect. In order to facilitate the Governments' replies, the Working Group asked a number of specific questions:
1. What is the legal basis for compensation in your country?
2. What are the legal requirements and legal procedures leading to a presumption of death? Who initiates such a procedure? Can a person be presumed dead over the objections of the family?
3. Does the payment of compensation require a presumption of death?
4. Has your Government used the method of exhumation to determine the identity of a person reported to have disappeared?
5. Has your Government compensated victims or families of victims of disappeared?
24. At the time of publication of this report, 12 countries - Argentina, Chile, Ethiopia, Guatemala, Honduras, India, Morocco, Peru, the Philippines, Sri Lanka, Turkey and Uruguay - had submitted information concerning compensation for victims or relatives of victims of enforced or involuntary disappearances. The Working Group would like to note that the Government of Brazil provided it with extensive information on its laws with regard to compensation last year. Such information is reflected in the Group's previous report (E/CN.4/1997/34), and in the country chapter on Brazil. It is for this reason that Brazil has not been included in this analysis.
1. Compensation
25. The legal basis for compensation varied from country to country. In Argentina it is law No. 24,411, adopted in January 1995, which pertains to "compensation for victims of enforced disappearance or death caused by the action of the armed forces, the security forces or paramilitary groups prior to the return of democracy". In Chile, it is law No. 19,123 of 8 February 1992, which provides for the granting of compensatory payments to non-surviving victims of human rights violations-disappearances or executed detainees, whose disappearance occurred between 11 September 1973 and 19 March 1990. In Ethiopia, the right to sue, the conditions under which compensation is to be made, and the right to and extent of the compensation are governed by the provisions of the Civil Code. Under the Ethiopian Penal Code, it is provided that, "where an offence has caused considerable damage to the injured person or those having rights from him, such persons shall be entitled to claim damages by way of compensation". In Guatemala, the offence of enforced disappearance was established in the law by means of decree No. 48-98 adopted by the Congress. The court hearing the case has the power, under this law, to set compensation where a criminal indemnification action has been brought in a criminal case. In Honduras, legislation provides that "any person incurring criminal responsibility for an offence or misdemeanour, also incurs civil liability, which includes restitution, reparation for material and non-material injury and compensation for damage caused". In India, it is reported that there is no "statutory right for compensation ... for victims of human rights violations. However, courts in India have awarded such compensation in a number of cases. Compensation for human rights violations is now considered part of the public law regime in the country". It may be noted that in India, in addition to public law remedies, compensation has been paid to victims of human rights violations based on recommendations of the National Human Rights Commission. In Morocco, a number of legal provisions provide the victim of any kind of violation with the right to compensation in proportion to the damage he has suffered; this right passes to his successor in the event of his death. The general principle governing compensation is set out in article 77 of the Code of Obligations and Contracts. The Penal Code also contains provisions for compensation. Peru reported that there was no specific provision for the payment of compensation to the victims of enforced disappearance or their families. However, the procedures provided for in the legal system are applicable; accordingly, when a sentence is handed down for the commission of any offence, it indicates the amount of compensation to be paid by the perpetrators to the victim or his family. In the Philippines, compensation is regulated by Act No. 7309 entitled "An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and For Other Purposes". In Sri Lanka, compensation is paid to next of kin of persons who have died or sustained injuries as a result of violence, terrorist activity, related security operations and consequent to civil unrest since 24 July 1983. The provisions for this plan are contained in the Registration of Deaths (Temporary Provisions) Act No. 2 of 1995, which provides for the registration of deaths of persons reported missing and for matters connected therewith or incidental thereto. In Turkey, "compensation is paid only after penal sanctions are imposed on the perpetrators". In Uruguay, the legal basis for compensation is articles 24 and 25 of the Constitution.
2. Presumption of death
26. The legal requirements and procedures leading to a presumption of death varied considerably, particularly in the minimum time period required since the last contact with the individual.
27. In Argentina, Act No. 24,321, adopted in 1995, established the concept of "absence through enforced disappearance". Subsequently, Act No. 24,411 was adopted, which made provision for compensation for victims of enforced disappearance or death caused by the action of the armed forces, security forces or paramilitary groups prior to the return of democracy. If an application for compensation was processed prior to the adoption of Act No. 24,321, the concept of "presumption of death" is used.
28. In Chile, a declaration of presumption of death by disappearance takes place before the Court of Civil Jurisdiction. Five years must have elapsed and three notices in the Diario Oficial must have been published with an interval of more than two months between each publication before the Civil Court may pass judgement. In addition, Chile requires the testimony of two witnesses to support the case.
29. In Guatemala, two years must have elapsed (one year in the case of war or other disaster) before a declaration of death may be made. Three notices over a period of one month must be made in the Diario Oficial and another mass circulation newspaper.
30. In Ethiopia, two years must have elapsed before a court may, upon the provision of sufficient evidence, officially declare a person absent. If the evidence collected by the court establishes in a manner which may be considered certain that the absentee is dead, the court may deliver a judgement declaring the death of the absentee.
31. In Honduras, a minimum of five years (or two years in specific cases such as military actions, shipwreck, etc.) must have elapsed before determination by the court of presumption of death. Notices concerning the missing individual must also be published in the Official Journal of the Republic at least three times at intervals of not less than four months before any such declaration may be made.
32. In India, sections 107 and 108 of the Indian Evidence Act lay down the requirements relating to the burden of proving the death of a person. These sections provide that when the question is whether a person is alive or dead, and it is shown that he or she was alive within 30 years, the burden of proving that he or she is dead is on that person who affirms it. Where there is a question whether a person is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
33. Peru stipulates that 10 years must have passed before a court may issue a notice of death, two years when the circumstances involved grave danger of death, or five years if the person was over 80 years old.
34. In Sri Lanka, with respect to persons who have died in the course of civil disturbances, as a result of violence and terrorist activity, a particular procedure has been established which requires that only one year must have passed before a next-of-kin may apply to register the disappearance under the country's Registration of Deaths (temporary provision) Act No. II. This legislation was reportedly enacted for the specific purpose of alleviating the hardship caused to next-of-kin due to practical difficulties impeding the registration of deaths in the special circumstances covered by the Act.
35. Turkey, for its part, stated that if a person has disappeared under circumstances which suggest that the person was killed, the "highest administrative authority" has the capacity to declare the "presumption of death" of the individual.
36. Uruguay stipulates that four years must have passed before a "presumption of absence" may be established. The notion of "presumption of death" does not exist in Uruguayan domestic law.
37. The majority of States surveyed permit any concerned or interested party to initiate the procedure leading to a declaration or presumption of death, or absence. In Chile, Ethiopia, Guatemala, Morocco, Peru and Uruguay, any individual may initiate the proceedings. In Argentina, relatives up to the fourth degree and cohabiting partners may initiate the procedure. Turkey stated that any "related" person might undertake the proceedings. In the Philippines and Sri Lanka only next-of-kin are permitted to undertake the procedure.
38. The Working Group further enquired whether a person might be presumed dead over the objections of the family. In Chile, if a third party can demonstrate that he or she has an effective interest in the declaration of disappearance, the family of the person reported to have disappeared may not raise any objection, unless evidence is produced showing that the person is alive.
39. In Guatemala, an objection to a declaration of presumption of death must be lodged before a judge, who must rule on the substance of the request and objections lodged by any person.
40. In the Philippines and Sri Lanka, given that only next-of-kin may initiate the proceedings leading to a declaration of death, the possibility that a third party might secure such a declaration would not arise.
41. Other countries did not respond to this particular question.
42. A number of countries, Guatemala, Honduras, Turkey and Sri Lanka, required that a presumption of death be established before payment of compensation may be made. India said that payment of compensation did not require a presumption of death. Once culpability is established, proof of death is not required.
43. Argentina requires a copy of the judicial decision accrediting an absence through enforced disappearance, or presumption of death, if the application was processed prior to the adoption of Act No. 24,321, which recognized the "state of absence through enforced disappearance". The Office of the Under-Secretary for Human and Social Rights, however, may replace this "absence through enforced disappearance" by issuing a certificate based on the information contained in the files of the National Commission on the Disappearance of Persons (CONADEP).
44. Chile requires only certification by the National Truth and Reconciliation Commission or by the National Compensation and Reconciliation Board, for compensation to be paid in accordance with Law No. 19123, promulgated on 8 February 1992. This law grants compensatory payments to heirs of non-surviving victims of human rights violations, disappearances or executions which occurred between 11 September 1973 and 19 March 1990. However, for other types of compensation, such as benefits under a life insurance policy, pension funds, etc., a judicial declaration of presumption of death by disappearance must first be made.
45. In Peru, a prior notice of presumed death would not be necessary for the payment of compensation in the case where a person has been legally declared to have disappeared.
46. Uruguay does not require a "declaration of absence" before payment; however, it states that Supreme Court practice recognizes that the existence of this declaration helps to speed up the processing of a claim for damages.
3. Exhumations
47. In all of the countries except Uruguay, exhumations have been carried out to determine the identity of persons who disappeared.
48. In Argentina, exhumations are affected by judicial order, and at the express request of the relatives. This procedure is not a precondition for eligibility for the granting of compensation.
49. In Chile, in all cases where information has been given concerning places where the remains of disappeared persons are reported to have been clandestinely buried, the relevant complaint has been lodged with the competent courts, the remains exhumed, and the necessary forensic measures taken to establish the identity of the persons concerned. As of 8 August 1997, the complete remains or fragments of the remains of 267 persons had been exhumed; 231 have been positively identified.
50. Ethiopia said that it used the method of exhumation to determine the identity of persons who have disappeared. The Special Public Prosecutor was currently using the method in the trial of the officials of the former Government.
51. Honduras reported that the Office of the Public Prosecutor initiated investigations into the whereabouts of many of the individuals who had been detained and had disappeared in the 1980s. The first exhumation was undertaken in 1994, the second in 1995 and the third in 1996.
52. India replied that exhumation had been ordered in the Indian courts to establish the identity of a person reported to have disappeared.
53. In Morocco, the procedure governing exhumation is specified by the Royal Decrees of 31 October 1969 and 29 January 1970. The Decrees state that exhumation must be authorized by the local authorities or requested by a legal authority; they specify the procedure to be followed and the precautions to be taken in carrying out exhumations.
54. Peru stated that exhumation may take place only in accordance with a court order; the Government may not order exhumations. The specialized criminal courts have the general power to order exhumations. The Government noted that "this is a relatively frequent practice to which judges resort and whenever they deem it necessary to do so, and not only for cases of disappearances".
55. Turkey, for its part, stated that exhumations may be conducted, but did not indicate whether the method had in fact been used in the past.
56. Uruguay has not employed the method of exhumation to determine the identity of a person reported to have disappeared.
4. Amount of compensation and other forms of redress
57. Several States have compensated either victims or families of victims of disappearances either materially and/or through social benefits. In Argentina, as of 2 September 1997, applications had been received in connection with 5,000 cases of disappearances; favourable decisions had been passed in 1,200 cases, and payments were due to be made shortly.
58. In Chile, as of 31 December 1996, the Government had authorized the payment of compensation to 4,630 relatives of 2,730 persons declared by the National Truth and Reconciliation Commission or by the National Compensation and Reconciliation Board to be non-surviving victims. Educational benefits were received by 988 children of victims studying in higher education establishments, whose enrolment charges and monthly fees are paid in full by the State. In addition, these students are paid an educational subsidy monthly during the 10 months of the academic year whose value for the month of August 1997 was the equivalent of US$ 71.76. Relatives of victims receive care free of charge under the State health system, and the State also bears 7 per cent of the cost of private health insurance or insurance under the State National Health Fund, according to the preference of those concerned. As of 30 September 1997, the Government of Chile had paid to relatives, by virtue of Law No. 19.123, a total amount of compensation of 35,340,496,000 Chilean pesos (approximately US$ 85 million). As at the same date, 133 requests for payment of compensation remained pending, awaiting the submission of the necessary documentation.
59. Guatemala replied that no judgements have been handed down establishing State responsibility in a case involving the offence of enforced disappearance, and therefore no compensation had been paid.
60. Honduras has paid compensation to the families of two victims, following a decision by the Inter-American Court of Human Rights.
61. India has paid compensation to victims of disappearance and their families. It gave one example in which the spouse of a disappeared person received the equivalent of approximately US$ 27,693.
62. In the Philippines, next-of-kin may claim compensation. The State also provides for appropriate medical care and rehabilitation for the victims who reappear, and for the families of victims who are found dead. As of 13 October 1997, financial assistance had been extended to 282 victims in the amount of approximately US$ 100,000.
63. Sri Lanka, as of August 1997, had paid compensation in relation to 5,991 deaths in the amount of approximately US$ 360,826. A sum of approximately US$ 1,694,900 has been allocated by the General Treasury of Sri Lanka to the governmental institution, The Rehabilitation of Persons, Properties and Industries Authority, for 1998 for the purpose of paying compensation to families, including dependants of "missing persons". As at 30 June 1997, 9,096 cases were pending payment.
64. In Uruguay, between 1986 and 1987, 36 actions were brought against the State for human rights violations, including unlawful or prolonged detention, abuse of authority, expropriation, ill-treatment, and enforced disappearance. Of these, 33 have been settled. Three of these concerned the disappearance of detainees; two other cases involving the disappearance of detainees are currently before the courts. The Government noted that in some cases, the relatives of missing persons did not avail themselves of the legal remedy, and allowed the time limit for claims to expire. The amounts claimed were in pesos, but payment was ultimately made in US dollars. The average compensation paid was between US$ 100,000 and US$ 156,000. Some 20 families had received compensation. There are at present no cases of missing detainees pending payment before the Uruguayan authorities.
65. The Working Group considers the aspect of compensation extremely important to its future activities concerning the clarification of old cases. The Working Group has decided to continue to consult and exchange views with Governments, non-governmental organizations and families concerning these questions, and in its future reports intends to devote particular attention to this issue.
G. Implementation of the Declaration on the Protection of All Persons from Enforced Disappearance
66. The Declaration refers to the right to a prompt and effective judicial remedy, as well as unhampered access of national authorities to all places of detention, the right to habeas corpus, the maintenance of centralized registers of persons deprived of their liberty, the duty to investigate fully all alleged cases of disappearance, the duty to try alleged perpetrators of disappearance before ordinary (not military) courts, the exemption of the criminal offence of acts of enforced disappearance from statutes of limitations, special amnesty laws and similar measures leading to impunity. It also provides for adequate compensation to the victims or, in the event of death, to their dependants. The Working Group continued to remind the Governments of these obligations not only in the context of clarifying individual cases, but also by taking action of a more general nature. During the year under review, it drew the attention of Governments and non-governmental organizations to the general or specific aspects of the Declaration; it discussed with representatives of Governments and non-governmental organizations how to solve specific problems in the light of the Declaration and how to overcome obstacles to its implementation.
67. Based on its experience in dealing with individual cases, the Working Group also continues to issue country-specific observations, thereby drawing the attention of the Governments concerned to the relevant provisions of the Declaration. With a view to focusing the attention of Governments more effectively on the relevant obligations deriving from the Declaration, the Working Group decided, at its fiftieth session, to adopt the following general comments on those provisions of the Declaration that might need further explanation in the light of the experience of the Working Group in its communications with Governments.
General comments on article 19 of the Declaration
68. Article 19 of the Declaration reads as follows:
"The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependants shall also be entitled to compensation."
69. Article 19 constitutes an important remedy for victims of enforced disappearances and their families. It complements the rights of detained persons and their families under articles 9, 10 and 13 of the Declaration. While the rights in these articles are designed to prevent, investigate and terminate acts of enforced disappearance, the remedies in article 19 apply to "victims of acts of enforced disappearance and their family" after their fate and whereabouts have been established, be they alive or dead. In other words, the obligations of States under the Declaration go far beyond their primary duty to establish the fate and whereabouts of disappeared persons.
70. The right to obtain redress in article 19 of the Declaration is broader than the right to an effective legal or judicial remedy as stipulated, for instance, in article 2 (3) of the International Covenant on Civil and Political Rights. As has been recognized in the jurisprudence of United Nations treaty monitoring bodies and in the draft basic principles and guidelines on the right to reparation for victims of [gross] violations of human rights and international humanitarian law (E/CN.4/1997/104, appendix), the right to obtain redress derives from the general obligation of States to ensure human rights and applies, in particular, to cases of gross violations.
71. The exact content of the right to obtain redress depends, of course, on the nature of the right which has been violated. Taking into account the particularly serious nature of any act of enforced disappearance which, in the words of article 1 of the Declaration, "is an offence to human dignity" and which "places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families", the Declaration first and foremost focuses on the obligation of States to make acts of enforced disappearance an offence under criminal law (article 4) and to bring the perpetrators to justice (article 14). Bearing in mind that impunity is one of the major root causes of the widespread practice of enforced disappearance, many victims of such acts and their families consider the prosecution and punishment of the perpetrators as important redress for their suffering.
72. Article 19 also explicitly mentions the right of victims and their family to "adequate compensation". States are, therefore, under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation. In addition to the victims who survived the disappearance, their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim, his or her dependants are entitled to compensation.
73. Compensation shall be "adequate", i.e. proportionate to the gravity of the human rights violation (e.g. the period of disappearance, the conditions of detention, etc.) and to the suffering of the victim and the family. Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm, lost opportunities, material damages and loss of earnings, harm to reputation and costs required for legal or expert assistance. Civil claims for compensation shall not be limited by amnesty laws, made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators.
74. The right to adequate compensation for acts of enforced disappearance under article 19 shall be distinguished from the right to compensation for arbitrary executions. In other words, the right of compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim. "In the event of the death of the victim as a result of an act of enforced disappearance", the dependents are, however, entitled to additional compensation by virtue of the last sentence of article 19. If the death of the victim cannot be established by means of exhumation or similar forms of evidence, States have an obligation to provide for appropriate legal procedures leading to the presumption of death or a similar legal status of the victim which entitles the dependants to exercise their right to compensation. The respective laws shall specify the legal requirements for such procedure, such as the minimum period of disappearance, the category of person who may initiate such proceedings, etc. As a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family.
75. In addition to the punishment of the perpetrators and the right to monetary compensation, the right to obtain redress for acts of enforced disappearance under article 19 also includes "the means for as complete a rehabilitation as possible". This obligation refers to medical and psychological care and rehabilitation for any form of physical or mental damage as well as to legal and social rehabilitation, guarantees of non-repetition, restoration of personal liberty, family life, citizenship, employment or property, return to one's place of residence and similar forms of restitution, satisfaction and reparation which may remove the consequences of the enforced disappearance.
II. INFORMATION CONCERNING ENFORCED OR INVOLUNTARY DISAPPEARANCES IN VARIOUS COUNTRIES REVIEWED BY THE WORKING GROUP, AND THE PALESTINIAN AUTHORITY
[...]
270. During the period under review, the Working Group transmitted one newly reported case to the Government of Morocco, which allegedly occurred in 1997 and was sent under the urgent action procedure. During the same period, the Working Group clarified 25 cases; 24 on the basis of information previously provided by the Government on which no objections were received by the source, and one on the basis of information received from the source in which it was reported that the person had been released. In accordance with its methods of work, the Group retransmitted to the Government six cases, updated with new information from the source.
271. The majority of the 233 cases of disappearance transmitted to the Government were reported to have occurred between 1972 and 1980. Most of them concerned persons of Saharan origin who were reported to have disappeared in territories under the control of the Moroccan forces, because they or their relatives were known or suspected supporters of the Polisario Front. Students and better educated Saharans were reported to have been particularly targeted. In some instances, disappearances allegedly followed the mass arrest of persons after demonstrations or before visits of prominent persons or officials from other countries.
272. Disappeared persons were reported to have been confined in secret detention centres, such as Laayoune, Qal'at M'gouna, Agdz and Tazmamart. Cells in some police stations or military barracks, and secret villas in the Rabat suburbs, were also allegedly used to hide the disappeared. Despite the release in 1991 of a large group of disappeared prisoners, several hundred other Western Saharans are said to remain unaccounted for, and their families are reportedly still pursuing their inquiries with the Moroccan authorities and detention centres.
273. The newly reported case concerns a 37-year-old man who was allegedly detained by the police in May 1997 in El Aioun.
274. Concern has been expressed to the Working Group that despite the release in 1991 from secret detention centres of more than 300 missing persons, the perpetrators have not been brought to justice nor the victims compensated, in accordance with articles 14 and 19 of the Declaration. It is further alleged that since their release, some of these persons have been subjected to intimidation and restrictions placed on the right to freedom of expression, association and movement. Some have reportedly been rearrested and others are said to have been placed under house arrest. Concern was also expressed that in some cases of disappearance in which evidence exists that the person concerned had died, the remains have still not been recovered and returned to the victim's family nor a death certificate issued to the family.
275. During the period under review, the Government submitted comments on allegations by non-governmental organizations contained in the Working Group's last report (E/CN.4/1997/34). It refuted the alleged disappearance of hundreds of persons as "unsupported by any proof". With reference to allegations concerning restrictions on the freedom of expression and association, the Government stated that they were similarly "unfounded as demonstrated by the press conferences held by former 'disappeared persons', and by the numerous communiqués they have published individually or collectively in the newspapers". The Government of Morocco said that it will "spare no effort to clarify outstanding cases". It also provided the Working Group with information on the constitutional and other legal provisions concerning the prevention and punishment of enforced disappearances.
276. During an exchange of views with the Working Group at its fifty-third session, representatives of the Government of Morocco reiterated that they were fully committed to clarifying all the cases of disappearance. They provided information to the Group on three individual cases: in two cases the persons concerned had died of natural causes in 1976 and the Government provided copies of the death certificates; in the third case, the Government reported that the subject had been arrested in 1976 on charges of attempts against State security and released in 1978, and subsequently died in 1982 in a traffic accident. The Government also provided a death certificate and, for all cases, other substantiating evidence. The Government again noted the constraints they faced in trying to trace the disappeared persons because the transcription of names did not always provide the complete data on the family background of the missing person.
277. The Government also replied to the Working Group's questionnaire on compensation. This information is reflected in chapter I.F of the present report.
Observations
278. The Working Group wishes to thank the Government for the cooperation it extended during the period under review, and for the information provided. Nevertheless, it wishes to remind the Government that acts constituting enforced disappearance by virtue of article 17 of the Declaration shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of disappeared persons. The Government, therefore, shall take all measures to bring the perpetrators to justice, irrespective of the fact that the disappearance occurred 20 years ago. The Group would also like to remind the Government of its responsibility under article 10 of the Declaration to provide the victims of acts of enforced disappearance and their family redress and adequate compensation, including the means for as complete a rehabilitation as possible.
[...]
IV. CONCLUSIONS AND RECOMMENDATIONS
408. The present report, the eighteenth of the Working Group on Enforced or Involuntary Disappearances, is submitted to the Commission on Human Rights during "1998 - Human Rights Year", i.e. 50 years after the adoption of the Universal Declaration of Human Rights and five years after the Vienna World Conference on Human Rights. "Human Rights Year" is an occasion, on the one hand, to celebrate the achievements of the United Nations in the field of human rights during this half century and, on the other hand, to critically assess the present situation of human rights, to evaluate the implementation of the Vienna Declaration and Programme of Action, and to develop a human rights agenda for the future. Such critical assessment must include the various human rights mechanisms established by the United Nations. The Working Group takes the opportunity of presenting this report to include some reflections on the phenomenon of enforced disappearances and its own role in combating this gross and particularly heinous violation of human rights and in relieving the suffering of the victims and their families.
409. Enforced disappearances are a recent phenomenon which emerged during the 1960s and early 1970s as a systematic practice of repression in a number of countries in Latin America under military rule. Unfortunately, the practice of disappearances soon became a rapidly increasing phenomenon in other regions as well, with Iraq, Sri Lanka and the countries of the former Yugoslavia being the countries in which the highest number of cases were reported to the Working Group to have occurred. Most of the more recent cases occurred in the context of internal armed conflicts, ethnic and religious tensions and other forms of internal disturbances.
410. The establishment of thematic mechanisms by the Commission on Human Rights with the task of investigating gross violations of human rights in all countries of the world and of publicly reporting on their findings undoubtedly constitutes one of the major achievements of the United Nations human rights programme. The Working Group was the first such mechanism created, and it has played a pioneering role as a channel of communication between victims, families and non-governmental organizations on the one hand, and Governments on the other. Since its establishment in 1980, the Working Group has transmitted a total of 47,758 cases to 76 Governments. Out of these, only 2,801 cases could be clarified (1,822 by Governments and 979 by non-governmental sources); 17 cases have been discontinued. At the date of clarification, 1,681 persons were at liberty, 442 were in detention, and 678 were dead. Although every individual clarification must be seen as a success, the fact that 44,940 of a total of 47,758 cases are still outstanding is not a very encouraging result.
411. If one analyses the reasons for this high percentage of unresolved cases, one finds that many of these disappearances, particularly in Latin America, date back to the 1970s or early 1980s; most of the victims have probably been dead for a long time, but it is extremely difficult to establish beyond a reasonable doubt the exact fate and whereabouts of the victims. According to the Working Group's methods of work, such proof is, however, a precondition for considering the case clarified.
412. The Working Group, therefore, in recent years has intensified its efforts to mediate between the families of missing persons and the respective Governments to find a solution to these old cases which might be acceptable to all sides concerned. Although many of these Governments in fact have changed, and themselves show a keen interest in clarifying the old cases, the families and non-governmental organizations often accuse them of not taking sufficient measures to investigate these cases and to bring the perpetrators to justice - measures to which these Governments, even if not responsible for the acts of disappearance as such, are obliged to take under the Declaration on the Protection of All Persons from Enforced Disappearance. On the other hand, these Governments often enacted amnesty laws which legally prevent them from prosecuting the alleged perpetrators, a course of action which clearly is not in conformity with article 18 of the Declaration. Nevertheless, the Working Group offers its assistance in those cases to find a solution by means of a judicial declaration of presumption of death, with the concurrence of the families, and the payment of adequate compensation to them. A number of countries have made considerable efforts in this respect as is shown in the chapter in the present report on compensation, presumption of death and exhumation.
413. A good example of this approach is Brazil, which in 1995 adopted a law concerning the recognition as dead of persons missing in connection with their political activities in the period 1961-1979. This law provides that the relatives of such missing persons are entitled to obtain death certificates and to receive compensation from the State amounting to at least US$ 100,000 per person. The application of this law led to the result that 49 out of 56 cases which had been reported to the Working Group have already been clarified. Similar efforts are being undertaken by a number of other States, notably Argentina, Chile, Uruguay, the Philippines and Sri Lanka.
414. Another method of clarifying old cases is the exhumation and identification of mortal remains from mass graves and other places where victims of enforced disappearance had been clandestinely buried. The Government of Chile informed the Working Group that as of August 1997, remains had been exhumed allowing the identification of 231 persons, notwithstanding the fact that these persons were killed more than 20 years ago. The Working Group recommends to all States with a considerable number of outstanding cases to develop comprehensive programmes of forensic activities and to compensate the families of deceased victims of enforced disappearance.
415. Monetary compensation to the victims and/or their families is, however, only one possibility of providing redress. As the Working Group stresses in its general comments on article 19 of the Declaration (see paras. 68-75 above), the right to obtain redress for acts of enforced disappearance includes other forms of redress, such as medical, psychological, legal and social rehabilitation; restoration of personal liberty, employment and property; and other forms of restitution, satisfaction and reparation which may remove the consequences of the enforced disappearance.
416. The Working Group wishes to stress once again that impunity is one of the root causes of enforced disappearances, and at the same time one of the major obstacles to clarifying past cases. That is why the Declaration obliges States to make all acts of enforced disappearance offences under domestic criminal law, to promptly, thoroughly and impartially investigate any allegation of enforced disappearance and to bring the perpetrators to justice. In addition, article 18 explicitly states that perpetrators of enforced disappearance shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. In some States with a high number of outstanding cases, families of missing persons demand as a precondition for a lasting solution to this problem, that Governments comply with their obligations under the Declaration to carry out thorough investigations, to inform the public of the outcome of such investigations, and to punish the perpetrators. Sometimes, far-reaching amnesty laws, notably in Peru and Argentina, prevent such investigations and prosecutions from taking place. As a consequence, the conflict between the families and the respective Government often continues over many years, and the Working Group is not in a position to clarify such cases. Therefore, it strongly recommends to Governments to comply with their obligations under the Declaration not to impede investigations by means of enacting amnesty laws and to stop the vicious cycle of impunity.
417. In some countries the Working Group was unable to achieve any progress in clarifying cases because of the non-cooperation of the respective Governments. The Governments of Burkina Faso, Burundi, Equatorial Guinea, Guinea, Mozambique, Rwanda, Seychelles and Tajikistan have never replied to any requests for information from the Working Group. The Government of Iraq, which is responsible for the highest number of cases of enforced disappearance reported to the Working Group, has not taken any meaningful measures to prevent, terminate and investigate acts of enforced disappearance and to bring the perpetrators to justice. The number of outstanding cases is, therefore, steadily increasing and amounts at present to not less than 16,366. The Working Group recommends that the Commission on Human Rights take appropriate action in relation to these countries.
418. As important as clarifying past cases of enforced disappearance is that Governments take effective legislative, administrative and judicial measures aimed at preventing the occurrence of such acts in the future. In the opinion of the Working Group, this is an area where most Governments failed to comply with their obligations under the Declaration. Although article 4 applies to all States, i.e. not only to those in which enforced disappearances actually take place, almost no Government has amended its criminal laws in order to ensure that acts of enforced disappearance as such are offences punishable by appropriate penalties. The enactment and effective implementation of such laws would be a major step towards terminating the widespread culture of impunity and thereby prevent acts of enforced disappearance. In addition, the Working Group stressed in its general comments on article 10 (E/CN.4/1997/34, paras. 23-30) that this provision combines three obligations which, if observed, would effectively prevent enforced disappearances: recognized place of detention, limits of administrative or pre-trial detention and prompt judicial intervention. Other important legal safeguards to prevent enforced disappearances and similar gross violations of human rights are the strict observance of the right of all detainees to have prompt access to their families, to lawyers and doctors of their own choice; the maintenance of official up-to-date registers of all persons deprived of their liberty; regular inspection of all places of detention by independent bodies; and proper human rights training of all prison and law enforcement personnel and members of the armed forces.
419. The observance of these rights does not seem to put an excessive burden on States, even in emergency situations. Most of these rights seem self-evident, at least in States that are based on minimum standards of the rule of law. Moreover, the implementation of these rights does not require high financial investments, and in any case is much cheaper than all efforts to investigate and clarify past cases of enforced disappearance, to bring the perpetrators to justice, to exhume mortal remains and to pay adequate compensation to the victims and their families. The Working Group, therefore, uses the opportunity of "Human Rights Year" to appeal once again to all Governments to take effective measures to prevent the crime of enforced disappearance. As the Working Group stated above, this crime was unknown until some 30 years ago. It is, therefore, not impossible, if the political will of Governments exists, that the phenomenon of enforced disappearances will disappear from history as quickly as it emerged.
420. At the last meeting of its fifty-third session, on 21 November 1997, the present report was adopted by the members of the Working Group on Enforced or Involuntary Disappearances:
Ivan Tosevski (the former Yugoslav Chairman-Rapporteur Republic of Macedonia)
Agha Hilaly (Pakistan)
Jonas K. D. Foli (Ghana)
Diego Garcia-Sayán (Peru)
Manfred Nowak (Austria)
DECISIONS ON INDIVIDUAL CASES TAKEN BY THE WORKING GROUP DURING 1997
Countries Cases which allegedly occured in 1997 Cases transmitted to the Government during 1997 Clarifications by Discontinued cases Urgent actions Normal actions Government Non-governmental sources Morocco 1 1 - 24 1 - STATISTICAL SUMMARY: CASES OF ENFORCED OR INVOLUNTARY DISAPPEARANCES REPORTED TO THE WORKING GROUP BETWEEN 1980 AND 1997 STATISTICAL SUMMARY
Cases of involuntary disappearances reported to the Working Group between 1980 and 1997
Countries Cases transmitted to the Governement Clarifications by Status of person at date of clarification Discontinued cases Total Outstanding Government Non-governmental sources At liberty In detention Dead No. of cases Female No. of cases Female Morocco 233 27 118 - 88 27 99 1 15 - [...]
Notes:
1. Since its creation in 1980, the Working Group has submitted a report to the Commission annually, starting at the Commission's thirty-seventh session. The document symbols of the previous 16 reports are as follows: E/CN.4/1435 and Add.1; E/CN.4/1492 and Add.1; E/CN.4/1983/14; E/CN.4/1984/21 and Add.1 and 2; E/CN.4/1985/15 and Add.1; E/CN.4/1986/18 and Add.1; E/CN.4/1987/15 and Corr.1 and Add.1; E/CN.4/1988/19 and Add.1; E/CN.4/1989/18 and Add.1; E/CN.4/1990/13; E/CN.4/1991/20 and Add.1; E/CN.4/1992/18 and Add.1; E/CN.4/1993/25 and Add.1; E/CN.4/1994/26 and Corr.1 and 2 and Add.1; E/CN.4/1995/36; E/CN.4/1996/38, and E/CN.4/1997/34. [Back]
2. Resolutions 1997/16, 1997/27, 1997/28, 1997/37, 1997/39, 1997/42, 1997/43, 1997/44, 1997/46, 1997/57 and 1997/58. [Back]
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