CCPR/C/127/D/2912/2016 Annex Joint opinion of Committee members Ilze Brands Kehris and Arif Bulkan (partly dissenting) 1. In this case the majority has found the entire communication to be inadmissible under articles 1 and 2 of the Optional Protocol. We disagree with this outcome with regard to the claim under article 7 of the Covenant. 2. The majority decision on the claim under article 7 is based on two reasons: first that in the light of the time that has elapsed there is no uncertainty as to the death of the authors’ relatives, notwithstanding the decisions of the authorities of the State party in the context of the modern criminal investigations; and second the lack of intent on the part of the authorities of the State party to cause the authors pain and suffering. 3. The protection afforded by article 7 of the Covenant covers not just physical pain and suffering, but anguish and mental stress as well.1 Regarding the latter, the Committee has repeatedly recognized that it captures the psychological pressure experienced by individuals whose immediate relatives are the victims of serious human rights violations. 2 In such cases, the violation of article 7 is constituted by the effect of the continuing violation of those left behind, where that operates alongside treatment by State officials that is such as to aggravate the loss and overall injustice experienced by the bereaved survivors. The question that arises, therefore, is whether the treatment of the authors by the Russian authorities was such that it caused them mental pain and suffering of such intensity as to constitute inhuman and degrading treatment prohibited by article 7. 4. Admittedly, what uncertainty there was as to the death of the authors’ relatives would have dissipated at some stage. But mere acceptance of this fact does not put an end to anguish and suffering, which are likely to persist as long as the circumstances surrounding disappearance and death remain shrouded in lies and deceit. Given the refusal of the Government of the Soviet Union to acknowledge their responsibility, the authors’ grief and sense of injustice necessarily remained unassuaged for an inordinately long period. 5. The official acknowledgement and the launching of a criminal investigation in 1990 would have awakened hope in the authors for clarification of the individual circumstances of their relatives’ summary executions and some historical accounting for this war crime. Instead, what should have been an investigation conducted openly and in good faith petered out in secret and answers provided to the authors at various points were uninformative, contradictory and at times profoundly insensitive. According to the undisputed facts, the authors were consistently denied a role in the investigation and requests for information were rejected on various grounds, including because the investigation was still ongoing and because they lacked “victim status”. Once the investigation was discontinued in 2004, the decision to do so was classified as a State secret. Moreover, the massacre itself was declared not to amount to genocide (para. 2.12 above), other war crime classifications were not considered and the judicial proceedings initiated and then discontinued in 2004 were limited to charges of abuse of power. Ultimately, the authors were denied any role in the investigation and the classification of the decision to discontinue it, along with a number of volumes of the investigation, foreclosed any prospect of learning the truth. The refusal to grant rehabilitation of the authors’ relatives, justified on the basis that the legal grounds for their execution were unknown, thus at least implicitly suggesting that they could have been legally executed, is particularly offensive and lacking in sensitivity (para. 2.13 above). 6. The presumption of certainty of death, which so influenced the majority in its finding of inadmissibility, can hardly be viewed as consequential, given that it was a certainty arising from the passage of time and not because of any positive act of 1 2 10 See Human Rights Committee, general comment No. 20 (1992) on the prohibition of torture or other cruel, inhuman or degrading treatment or punishment, para. 5. See Schedko v. Belarus (CCPR/C/77/D/886/1999), para 10.2; Sankara et al. v. Burkina Faso (CCPR/C/86/D/1159/2003), para 12.2; and Khadzhiyev v. Turkmenistan (CCPR/C/122/D/2252/2013), para 7.6.