View Adopted: 2020.03.11
The authors of the communication are Venezuelan nationals who claims that the State Party violated their father's rights under articles 2 (3), 6 (1), 7, 9, 10, and 16 of the Covenant, and their own rights under article 2 (3) and 7 of the Covenant.
Their father, Mr Mora Marguez was a well-known regional leader of the Venezuelan Revolutionary Party who had aired his political views on radio programmes denouncing acts of corruption, criticizing government policies and urging the population to organize in defence of their rights. His most recent appointment was as the Secretary to the Secretary-General of the government of the State Merida. In his appointment, he had produced a dossier containing information on government officials and personnel involved in a smuggling operation.
On 25 February 2015, Mr. Mora Marquez was intercepted near his home and threatened with death by armed men, who arrived in a car with similar characteristics to the one used by the Bolivarian National Intelligence Services. He did not file a complaint but did notify family and friends to be warned that the Bolivarian National Intelligence Service had issued a warrant for his arrest.
On the morning of 27 February 2015, Mr Mora Marquez left his home for work; that was the last time his children saw him alive. On 2 March 2015, the authors were able to talk to their father by telephone for a minute and a half. The authors repeatedly tried to communicate with their father after this but to no avail. On 4 March 2015, the authors received several text messages. This alarmed the authors as they did not read like something their father had written, and their father never put his initials at the end of his messages. On the following day, they, therefore, filed a complaint of enforced disappearance. Upon a later meeting with the Secretary-General of the government, they were reportedly also told that this happened to their father because he was talking a lot of nonsense.
On 18 May, a judge decided to allow the case to go forward and ordered the attorney general’s office to take all necessary steps to locate or bring about the appearance of the injured party. The authors submit that although this yielded some investigative actions, other important steps, such as calling other witnesses to give evidence or requesting certain phones to be traced, were not taken. The authors submit that having failed to yield any results, the investigation has not been effective.
The authors conclude that the State party have violated their fathers’ rights under articles 2 (3), 6 (1), 7, 9, 10, and 16 of the Covenant. They also recall that Committee jurisprudence clearly recognized that enforced disappearance constitutes a form of cruel and inhuman treatment for the relatives of the disappeared persons. Thus, they claim that their rights under articles 2 (3) and 7 of the Covenant have been violated.
The Committee firstly noted the State Party’s claim that there had been no evidence emerging of direct or indirect participation by agents of the State in the disappearance, and that the disappearance might have been carried out without the consent of the State party’s authorities by irregular groups operating in Colombia. In the absence of such evidence supporting the presumption of participation, support or acquiescence, the Committee found that it cannot reach any conclusion regarding the forced or unforced nature of the disappearance.
The Committee also recalled that the content and scope of the right to life includes also positive procedural obligations – in particular, that state parties should take appropriate preventive measures and investigate, and as appropriate, prosecute those responsible for such incidents. In terms of the present case, the Committee noted that the State party was unaware of the situation of real and immediate risk to Mr Mora Marquez life and that the State party conducted a number of investigative procedures. It further stressed that it is an obligation of means and not results and that it is not for the Committee to determine the usefulness of specific investigative measures unless the failure to take them is manifestly unreasonably. On this basis, it found that it did not have sufficient evidence to conclude that the State Party violated articles 6 (1), and 7, read alone and in conjunction with article 2 (3).
Given that it had not been possible to prove that that the facts of the present case constituted an enforced disappearance attributable to the State party, it did not have sufficient evidence to find a violation of articles 9, 10, and 16 of the Covenant with respect to their father’s rights or of the author’s own rights under article 2 (3) and 7 of the Covenant.
Jose Manuel Santos Pais and Gentian Zyberi (Partially dissenting)
Committee members Jose Manual Santos Pais and Gentian Ziberi partially dissented to the Committee’s finding that it did not have sufficient evidence to find a violation of the father’s rights under article 2 (3), read alone and in conjunction with articles 6 and 7 of the Covenant. They noted that while state authorities have taken steps to investigate the disappearance, these seem to have fallen short of what is required by due diligence requirements at all stages of the process.
The Committee Members argued as follows. They noted that the first intervention happened almost three months after the disappearance, following the submission of the authors of an application for amparo. They followingly noted the state party claim that 45 investigate procedures had been undertaken but that the State party had also not provided any detail as to the content of these procedures. They also referred to the fact that these procedures did not seem to be part of a comprehensive search and investigation strategy, and that several of the procedures requested by the authors had not been carried out for no stated reason, even though they seem essential to the process of searching and investigating the disappearance. They also observed that even though it had been 5 years since the disappearance, and several investigative hypothesis have been put forward, none have been fully explored or confirm, nor have any possible perpetrators of these been identified. They also stated that the State party had not provided any information on the current state of proceedings, with the last investigative procedure dating back to August 2017.
On the above basis, the Committee members are of the opinion that the State party has failed to fulfil its obligations under article 2 (3) read in conjunction with articles 6 and 7 of the Covenant in respect of Mr Mora Marquez rights as it has failed to take timely remedial action in the matter and to ensure that the investigation into his disappearance was conducted in accordance with the principle of due diligence.
Arif Bulkan (Dissenting)
Committee Member Arif Bulkan dissented to the Committee’s conclusion that the facts in the present case do not reveal any violation of the Covenant. He noted that the Committee was erroneously persuaded by two facts: that the State was unaware of any risk to the victim’s life and that the State party had conducted 45 investigative procedures.
The Committee member argued that the tendency to look for evidence that directly links to the disappearance to the State or its agents may have influenced the Committee in taking the view that there is no evidence as to the forced or unforced nature of the disappearance. Yet, circumstantial evidence and presumptions can establish a case of enforced disappearances long as these are consistent with established facts. The Committee members followingly observed that state responsibility for an enforced disappearance has been deduced from the combined effects of two types of evidence: the general context, that is the situation in the State, and the circumstances specific to the victim. In terms of the present case, the Committee member noted that conditions have significantly deteriorated and that the circumstances relating to the victim demonstrate that Mr Mora Manquez denouncement of government corruption and organization of opposition against the Government are all suicidal activities in the present case. He also noted the author's uncontested claim that the Secretary-General told them that this happened to their father because he was talking a lot of nonsense. He also argued that in the face of these damning facts, the State Pary offered no credible explanations but baseless speculation that it could have been the actions of irregular groups.
In light of the above, and in full agreement with the other dissenting Committee members, the Committee member argued that the State party failed in its obligations under article 2 (3) when read in conjunction with article 6. He particularly noted, in disagreement with the Committee finding, that prior knowledge is irrelevant in assessing how the State authorities met the duty to investigate – what ultimately counts are the steps taken after the victim disappeared – which in this case were inadequate. Most prominently, the Committee member noted that beyond unsupported claims of a serious investigation, the authorities had failed to elaborate on what the content of this investigation was.