CCPR/C/128/D/3018/2017
unlawful deprivation of life, to punish those responsible and to provide full reparation. 16 The
duty to take positive measures to protect the right to life derives from the general duty to
ensure the rights recognized in the Covenant, which is provided for in article 2 (1) when read
in conjunction with article 6, and from the specific duty to protect the right to life by law,
which is articulated in the second sentence of article 6 of the Covenant. In particular, States
parties should take appropriate preventive measures to protect individuals from unlawful and
arbitrary deprivation of life.17 In addition, States parties should investigate and, as appropriate,
prosecute those responsible for such incidents. This obligation is implicit in the obligation to
protect and is reinforced by the general duty to ensure the rights recognized in the Covenant,
which is articulated in article 2 (1), when read in conjunction with article 6 (1), and the duty
to provide an effective remedy to victims of human rights violations and their relatives, which
is set out in article 2 (3) of the Covenant, when read in conjunction with article 6 (1). 18 The
Committee also refers to its jurisprudence, according to which criminal investigation and
prosecution are necessary remedies for violations of human rights such as those protected by
article 6, and that there may be a violation of the Covenant when the State party fails to take
appropriate measures to investigate and punish those who have violated those rights and to
provide redress to victims. 19
9.6
However, in the present case, given that the State party was unaware of the situation
of real and immediate risk to Mr. Mora Márquez’s life, since the threats he had received prior
to his disappearance and the need for protection measures were not the subject of a public
complaint or a report to the State authorities, 20 that the State party conducted a significant
number of investigative procedures and it is not for the Committee to determine the
usefulness of specific investigative measures unless the failure to take them is contrary to
objective standards, or is manifestly unreasonable,21 and, lastly, that the duty to investigate is
an obligation of means – or of due diligence – and not an obligation of result, the Committee
considers that, in the present case, it does not have sufficient evidence to conclude that the
State party has violated articles 6 (1) and 7, read alone and in conjunction with article 2 (3)
of the Covenant.
9.7
The Committee further notes that the authors claim that the facts also constitute a
violation of articles 9, 10 and 16 of the Covenant in respect of Mr. Mora Márquez, though
they offer no further details other than to allege that the State party is responsible for his
disappearance. The Committee considers that, since it has not been possible to prove that the
facts of the present case constituted an enforced disappearance attributable to the State party
or that they involved a violation of articles 6 (1) and 7 of the Covenant, and in the absence of
clear information on the fate and whereabouts of Mr. Mora Márquez, it does not have
sufficient evidence to find a violation of articles 9, 10 and 16 of the Covenant.
9.8
Finally, the Committee also notes that the authors claim that their own rights under
articles 2 (3) and 7 of the Covenant have been violated owing to the cruel and inhuman
treatment they have suffered as a result of the continuing uncertainty about the fate and
whereabouts of their loved one. The Committee also notes that the State party maintains that
it cannot be held internationally responsible for this, since it is not possible to attribute
international responsibility to the State for the disappearance and since the State has not failed
in its duty to investigate the alleged enforced disappearance with due diligence. In this regard,
the Committee considers that, since it has not been possible to prove that the facts of the
present case constituted an enforced disappearance attributable to the State party or that they
involved a violation of articles 2 (3), 6 (1), 7, 9, 10 and 16 of the Covenant, it does not have
sufficient evidence to find a violation of the authors’ rights under article 2 (3), read in
conjunction with article 7 of the Covenant.
16
17
18
19
20
21
8
General comment No. 36, para. 19. See also Moreno Pérez et al. v. Mexico, para. 12.5.
General comment No. 36, para. 21. See also Moreno Pérez et al. v. Mexico, para. 12.5.
General comment No. 36, para. 27, which also recalls that investigations and prosecutions of cases
involving potentially unlawful deprivation of life should be conducted in accordance with relevant
international standards, including the Minnesota Protocol on the Investigation of Potentially Unlawful
Death. See also Moreno Pérez et al. v. Mexico, para. 12.5.
Amirov and Amirova v. Russian Federation (CCPR/C/95/D/1447/2006), para. 11.2.
Compare with Inter-American Court of Human Rights, Castillo González et al. v. Venezuela, merits,
paras. 128 and 131.
Ibid, para. 153.
GE.20-07124