View Adopted: 2020.10.28
The authors of the communication are two nationals who are submitting the communication on their own behalf as well as on behalf of their parents and grandparents, whose whereabouts became unknown since August 1936, after they were arrested by officers of Guardia Civil. In their communication they claim that the State party is responsible for a continuing violation under articles 6, 7, 9 and 16 of the Covenant, read in conjunction with article 2(3) of the Covenant.
The authors submitted that the facts of the present case related to the systematic practice of enforced disappearances of persons accused of adhering to an ideology contrary to that of Franco regime during the Civil War. During Spain's transition to democracy in 1977, an Amnesty Act for all the crimes committed had been adopted. The authors state that their father, Mr. A.M. was detained for a week at the Manacor police station in mid-August 1936, but was later released and had disappeared from his home. His pregnant wife, J.V. was also called in by the same police station, in order to testify to achieve the release of A.M and had disappeared after entering the station. Therefore, one of the authors of the communication had to grow up without her parents and the other author, her daughter, had felt the effect of the trauma due to the disappearance of her grandparents.
The authors submitted a complaint of crimes against humanity to the Central Court of Investigations No. 5 of the National High Court. The Court ruled that no amnesty law adopted could be invoked to obstruct its investigations and assumed the jurisdiction. The Public Prosecution Service, however, successfully filed a complaint, arguing that the Court did not have the territorial jurisdiction and that its decision constituted a violation of the principle of legality and non-retroactivity. The authors appealed and reached the Constitutional Court but were rejected on the grounds that their complaint was time-barred and subject to the amnesty law which had come into force. In 2012, the authors also turned to the courts of Argentina on the basis of universal jurisdiction, however, Spain opposed all orders of extradition issued by Argentina. The authors have also pursued various administrative courses of action in an attempt to obtain reparation and have applied orphan's pension, but were denied at all instances.
On this basis, the authors submitted that the State Party has violated its positive procedural obligation to investigate and establish the whereabouts of disappeared persons, to identify, prosecute and punish the perpetrators and to provide full reparation under articles 6, 7, 9 and 16 of the Covenant, read in conjunction with article 2(3). The authors also claimed a continuing violation of their rights under article 7 of the Covenant, read in conjunction with article 2(3) due to profound suffering and stress caused by the enforced disappearance of their family members.
The Committee first determined whether the case was admissible ratione materiae, rejecting the State Party's argument that the term "enforced disappearance" is not explicitly used in the Covenant and therefore the complaint should be submitted to the Committee of Enforced Disappearances. The Committee recalled that it has in the past examined a large number of individual communications related to enforced disappearances and has found violations in several of them as the practise also constitutes violations of the Covenant. Spain further contested that the communication is inadmissible as it is an actio popularis that serves as a comprehensive critique of legislation and judicial proceedings. The Committee, however, stated that since the authors have substantiated their claim with personal harm and have identified specific violations of their individual rights under the Covenant, “article 1 of the Optional Protocol does not constitute an obstacle to the admissibility”.
Spain further argued that the disappearances occurred before the existence of the Covenant. The Committee noted that the obligation under articles 6, 7, 9 and 16, read in conjunction with article 2(3), did not exist before the Covenant entered into force for Spain in 1997. It would therefore be unreasonable for it to regard the ratification of the Covenant as entailing an active duty on its part to investigate enforced disappearances which occurred in the past.
The Committee also highlighted that the authors did not explain why they did not present their complaint to the Committee upon Spain’s ratification of the Optional Protocol. Accordingly, "the Committee cannot conclude that it has jurisdiction over a violation that took place in 1936, even if there are certain continuing effects related to such a violation". Finally, the Committee also considered that the authors have not shown that they have raised the claim of a continuing violation of their own rights under article 7 of the Covenant, read in conjunction with article 2(3), before domestic courts and thus considered that the local remedies have not been exhausted.
The communication is therefore inadmissible.
Joint opinion of Committee members Moore, Sancin, Santos Pais, Shany and Zyberi
The authors concurred with the decision of the Committee that it would be unreasonable to construe the obligations of State Parties for the issue of "the prompt and effective investigation of past crimes, which assume the availability of sufficient forensic evidence and witnesses” under the Optional Protocol as allowing for a review events that have occurred long before the adoption of the Covenant or of the Optional Protocol. The members were also of the opinion that the authors should have exercised a certain degree of diligence in pursuing their claims before the Committee after Spain’s ratification of the Optional Protocol.
Joint opinion of Committee members Ben Achour, Bulkan, Fathalla and Tigroudja
The authors concurred with the decision of the Committee on the ratione temporis inadmissibility, however, partially dissented to the decision on inadmissibility of the claim of a violation of authors own rights under article 7 of the Covenant, read in conjunction with article 2(3). The authors have filed multiple claims before national and regional courts in Spain, have asked for the recognition as victims and consequential reliefs, and have even invoked the claim before the Argentinian legal system. Moreover, the members noted that since the Supreme Court had ruled that crimes committed during the Civil War and the Franco era could not be investigated or prosecuted, the position of the lower courts had therefore been cemented and the authors had in fact no available remedy to exhaust. The members concluded that the author's own claim is admissible.
Joint opinion of Committee members Kran and Quezada Cabrera
The authors concurred with the decision of the majority of the Committee regarding the inadmissibility ratione temporis, however, were not able to agree that the authors' claim of a continuing violation of their own rights under article 7, read in conjunction with article 2(3) of the Covenant is inadmissible for failure to exhaust domestic remedies. The members noted that the authors have unsuccessfully brought legal claim before the National High Court, the Court of Palma de Mallorca, the High Court of Mallorca, the Constitutional Court and the Court of Manacor, as well as unsuccessfully taken procedural and administrative steps before the Technical Commission of Disappeared Persons and Graves of the government of the Balearic Islands. Moreover, the members also noted that the State party has not disputed that the judgement of the Supreme Court in 2012 has led to a general dismissal of all appeals lodged and left the authors without any further effective remedies. The members therefore concluded that the communication is admissible regarding the claims relating to articles 2(3) and 7 of the Covenant.