CCPR/C/114/D/2038/2011 Appendix II Individual opinion of Committee member Anja Seibert-Fohr (concurring) 1. I concur with the Committee’s conclusion on this communication. However, I am not in a position to support the broad legal reading of article 16 suggested in the first sentence of paragraph 10.9. Instead I would have retained the temporal element which has long been established in the Committee’s jurisprudence. 2. Article 16 of the Covenant protects the right of everyone to recognition everywhere as a person before the law. The capacity to bear rights and duties is a necessary prerequisite to all other individual rights.a The absolute and non-derogable nature of this right explicitly recognized in article 4 (2) of the Covenant demands a particularly careful determination of its scope. Accordingly, the Committee held in Grioua v. Algeria that “intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially effective remedies, including judicial remedies (Covenant, art. 2, para. 3) have been systematically impeded [emphasis added]”. It explained that, in such cases, victims “are in practice deprived of their capacity to exercise entitlements under the law, including all their other rights under the Covenant, and of access to any possible remedy as a direct consequence of the actions of the State”.b Since 2007, it has been the Committee’s established case law that article 16 is violated when victims are systematically and for a prolonged period of time deprived of any possibility of exercising their rights and denied access to a remedy. c 3. Under these circumstances, which include the temporal element and the systematic character of the deprivation, a de facto denial of the right to be treated as a bearer of rights is taking place.a The temporal element is evidence of the refusal per se to recognize an individual as a person before the law. I am aware that the International Convention for the Protection of All Persons from Enforced Disappearance and the Inter-American Convention on Forced Disappearance of Persons do not contain a temporal element for the definition of enforced disappearance. However, the issue before us is not a determination of whether an atrocity qualifies as an enforced disappearance but whether it is in violation of article 16 of the Covenant. While recognizing the very serious nature of enforced disappearance as one of the most heinous human rights violations, and the immediate need for the effective protection for victims of enforced disappearance and their families, the fact that an atrocity inflicted upon a victim constitutes an enforced disappearance which is in violation of articles 6, 7 and 9 of the Covenant and thus requires immediate protection does not a b c See Aboufaied v. Libya, Communication No. 1782/2008, Views adopted on 21 March 2012, appendix, individual opinion of Committee member Walter Kälin. See communication No. 1327/2004, Grioua v. Algeria, Views adopted on 10 July 2007, para. 7.8. See, for example, communication Nos. 1640/2007, El Abani v. Libyan Arab Jamahiriya, Views adopted on 26 July 2010, para 7.9; 1751/2008, Aboussedra v. Libyan Arab Jamahiriya, para. 7.9; and 1495/2006, Madoui v. Algeria, Views adopted on 28 October 2008, para. 7.7. 17