CCPR/C/128/D/3018/2017 Annex I [Original: English] Joint opinion of José Manuel Santos Pais and Gentian Zyberi (partially dissenting) 1. We regret not being able to join the majority of the Committee in concluding that it does not have sufficient evidence to find a violation of the rights of Alcedo Mora Márquez under article 2 (3), read in conjunction with articles 6 and 7, of the Covenant. 2. By now Mr. Mora Márquez has been missing for more than five years, having disappeared on the morning of 27 February 2015. While State authorities have taken steps to investigate Mr. Mora Márquez’s disappearance, these seem however to have fallen short of what is required. 3. The facts of the case reveal that Mr. Mora Márquez was a regional leader of a political party (the Venezuelan Revolutionary Party) and an outspoken individual who publicly denounced acts of corruption and criticized government policies (para 2.2). Before disappearing, he was working as Secretary to the Secretary-General of the government of the State of Mérida, in the Andean region, in the western part of the Bolivarian Republic of Venezuela. In that capacity, he denounced several state government officials and personnel of the State-owned company Petróleos de Venezuela for involvement in a network that was smuggling gasoline into Colombia and provided the Governor and the Secretary-General of the government of the State of Mérida with a dossier containing information on the individuals involved in the smuggling operation (para 2.3). 4. Two days before his disappearance, Mr. Mora Márquez was intercepted near his home by armed men who arrived in a black pickup truck and threatened him with death. The authors indicate that the Bolivarian National Intelligence Service used vehicles similar to that used by the armed men. Mr. Mora Márquez did not lodge a formal complaint concerning the threats made against him, but he did tell his family and friends about them, suspecting that the Bolivarian National Intelligence Service had issued a warrant for his arrest, on allegations of corruption, and was trying to set him up (paras 2.4 and 2.10). 5. The authors, who are Mr. Mora Márquez’s sons, were able, even after the disappearance, to talk to their father by telephone, on 2 March 2015 (para 2.6) and on 4 March 2015, and even received several text messages from their father’s mobile, although they were alarmed by these messages, since their father did not usually add his initials at the end of his messages (para 2.7). 6. During the same week of the disappearance of Mr. Mora Márquez, two of the author’s friends, brothers of Colombian nationality who had applied for asylum in the Bolivarian Republic of Venezuela, also disappeared. The two brothers had similarly been followed by a truck with identical characteristics to the one observed near Mr. Mora Márquez’s home, from which men had got out and threatened him (para 2.13). 7. It is a fact that Mr. Mora Márquez did not report to the State authorities the death threats he had received just two days before his disappearance or a need for protection measures.1 However, following the disappearance of Mr. Mora Márquez, his family filed a complaint of enforced disappearance. Consequently, the State party acquired the obligation to conduct a search and a criminal investigation, which is a necessary remedy in cases of violations of human rights such as those protected by articles 6 and 7 of the Covenant. 2 The duty to investigate is an obligation of means – or of due diligence – and not an obligation of result.3 The State party should therefore ensure that all search and investigation activities meet due diligence requirements at all stages of the process, including an immediate and 1 2 3 10 Inter-American Court of Human Rights, Castillo González et al. v. Venezuela, judgment of 27 November 2012, merits, paras. 128 and 131. Krasovskaya and Krasovskaya v. Belarus (CCPR/C/104/D/1820/2008), para. 8.3. Inter-American Court of Human Rights, Baldeón García v. Peru, merits, judgment of 6 April 2006, para. 93. GE.20-07124