Serna et al. v. Colombia

Reference: CCPR/C/114/D/2134/2012

Decision Year: 2015-07-09

Related Articles:

  • Article 16 Article 6 Article 7 Article 9

Keywords:

  • Liberty and security of person Right to life

Full Case:

Facts:

The authors are Colombian nationals who submit the complaint on behalf of their two disappeared relatives and for themselves. Their relatives disappeared in March 1995, while they were travelling across the Middle Magdalena region. This area was not safe because paramilitary groups were stopping people to check their identity and were causing the disappearances of persons from outside the region. The last record of them was when they were seen in the company of armed men who put them in a car.

The facts of the case were brought to the attention of the Association of Relatives of Detainees and Disappeared Persons (ASFADDES), and the Colombian Commission of Jurists who filed complaints on behalf of the authors. They also denounce the existence of a stone quarry where disappeared persons were enforced to work but authorities responded that they were not aware about this labor camps.

In 2005, Autodefensas Campesinas del Magdalena Medio, a paramilitary group, were demobilised and several members were prosecuted before a special court of justice. Unfortunately, none of them acknowledged the disappearance of these two men and authorities did not order others further investigation to find them.

The authors of the communication claim that there is a violation of their relatives’ right of effective remedy, guaranteed by the article 2(3) of the Covenant, and in conjunction with articles 6, 7 and 9, because their relatives are victims of enforced disappearance and no serious investigation have been conducted to find out their whereabouts and fates. Moreover, they claim that their relatives are victims of violations of the article 6(1) because they are arbitrarily deprived of their life and of the article 7, given that the degree of suffering in being held indefinitely without contact with the outside. According to the authors, the State is also responsible of violations of their relatives’ rights provided under articles 9 and 10 of the Covenant because enforced disappearance constitutes, in itself, a breach of the right to liberty and security of the person and of the right to be treated with humanity and respect for the inherent dignity of the human person. The authors claim that the enforced disappearance is, as well, a violation of the right to be recognized before the law because, by definition, an enforced person is placed outside the protection of the law. Finally, they claim that disappeared persons are undoubtedly deprived of their rights to private and family life, guaranteed under articles 17 and 23(4) of the Covenant.

Regarding to the authors themselves, they argue that they are victims of a violation of their right under article 7 because the enforced disappearance of their relatives and the lack of a judicial investigation have caused them great sorrow, deep depression, suicidal thoughts and very serious psychosocial impact. This impact is also considered as a violation of article 17 and 23(1) of the Covenant. 

Committee’s Merits

In the absence of comments from the State party regarding the merits of the complaint, the Committee gave the due weight to the author’s allegation.

The Committee recognizes that the paramilitary group, who is responsible of the enforced disappearances, is a non-state actor. However, the State, by its failure to investigate on this group and to stop it, is also responsible of the violations of human rights by this non-state actor. 

The Committee considers that the facts of enforced disappearance, as provided by the authors, constitute a unique and integrate series of acts that represents continuing violations of articles 6, 7 and 9 of the Covenant ( see Communication N°2000/2010, Yuba Kumari Katwal v. Nepal, ).

Moreover, the intentional removal of a person from the protection of the law constitutes a refusal to recognize that person as a person before the law and thus, there is violation of the article 16 of the Covenant, according to which everyone shall be recognized as a person before the law.

The Committee recalls its general comment N°31 according to which the cessation of an ongoing violation is an essential element of the right to an effective remedy (http://ccprcentre.org/ccpr-general-comments CCPR/C/Rev.1/Add.13). In this way, the fact that the authors have received no official information about their disappeared family members and, in addition the fact that the State was unable to give them any convincing justification about this lack of investigation, is a violation of the right to remedy, guaranteed by article 2(3), read in conjunction with articles 6, 7, 9 and 16 of the Covenant.

Committee's Admissibility

According to the Committee, the communication is admissible under the article 5(2)(a) of the Optional Protocol because the case is not under the examination of another international instrument. Moreover, despite of the long period of time between the facts, in 1995, and the submission, in 2011, the communication is admissible under article 3 of the Optional protocol because the amount of time that elapsed before submission is justified by the numerous legal and administrative complaints filled by the authors before the submission of a communication before the Committee (See communication N° 1223/2003, Tsarjov v. Estonia para 6.3- session 91- http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f91%2fD%2f1223%2f2003&Lang=en).

Recommendation

In accordance with article 2, paragraph 3 (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including:

  • the performance of an independent, thorough and effective investigation of the disappearance of the authors’ relatives and prosecution and punishment of those responsible;
  • the release of the authors’ relatives should they still be alive;
  • if they are dead, the hand-over of their remains to their family;
  • effective reparation, including adequate compensation, medical and psychological rehabilitation and appropriate measures made to the satisfaction of the authors for the violations suffered.

The State party is also under the obligation to prevent similar violations from occurring in the future and to ensure that any forced disappearances give rise to a prompt, impartial and effective investigation.

The Committee wishes to receive from the State party, within 180 days, on the 9 January 2016, information regarding the measures taken to give effect to the Committee’s View. 

 

Individual opinion by Committee member Yuval Shany (partly concurring and partly dissenting)

Yuval Shany is partially agreed with the Committee’s Views, in particular regarding the violations of articles 6, 7 and 9 of the Covenant. However, he regrets that the Committee concludes that there is a violation of article 16 of the Covenant, according to which everyone shall have the right to recognition everywhere as a person before the law. To breach this article, the State party had to intentionally remove a person from the protection of the law and this intention had to be substantiated by the author of communication. The author could prove this intention by the fact that the victim had been arrested by State officials or evidence of the victim being in the custody of the State. With these new Committee’s Views, it is now possible to find a violation of the article 16 “based on a combination of conjectures, which fall short, if the level of substantiation required in order to establish a direct involvement by the State party in the victim’s disappearance, which would amount to an intentional removal from the protection of the law”. 

 

Individual opinion by Committee members Victor Rodriguez-Rescia and Fabian Omar Salvioli (concurring)

Committee members Victor Rodriguez-Rescia and Fabian Omar Salvioli are agreed with the Committee’s Views and also with the fact that the Committee retains the responsibility of the State about the violations committed by non-State actors. In this way, they consider that the Committee does not provide enough explanation and they precise its view. They recall the obligation under the article 2 (1) of the Covenant, which is the “specific duty to prevent individual from engaging in acts that could create an international responsibility for the State from a human rights standpoint owing to an act or omission by public authority.” Victor Rodriguez-Rescia and Fabian Omar Salvioli argue that the irregular groups, responsible of the enforced disappearance of the victims, were acting as de facto agents of State at the time the event occurred. Moreover, “the State’s objective responsibility derives equally from its having established paramilitary structures and from its failure to effectively eliminate those structure”. Consequently, it was not improper for the Committee to retain the responsibility of the State party in the enforced disappearance of the victims and in violation of article 6, 7, 9 and 19 of the Covenant.

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