CCPR/C/128/D/3018/2017 Annex II [Original: English] Individual opinion of Committee member Arif Bulkan (dissenting) 1. In cases involving alleged enforced disappearances, the Committee has repeatedly stated that the burden of proof does not lie solely with the authors of the communication, as they may not have access to the relevant information.1 Instead, the onus is on the State party “to show that it held no responsibility for the enforced disappearance and that it had conducted a prompt, thorough and effective investigation to ascertain the facts and punish the perpetrators”.2 Having regard for these well-established principles, I cannot agree with the Committee’s conclusion that the facts in the present case do not reveal any violation of the Covenant. 2. The tendency to look for evidence that directly links the disappearance to the State or its agents may have influenced the Committee in taking the view that there is no evidence as to the forced or unforced nature of the disappearance of Alcedo Mora Márquez (para 9.3). Enforced disappearance can, however, also be established through circumstantial evidence and presumptions, so long as these are consistent with the established facts.3 As explained by the Inter-American Court of Human Rights, “circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim.”4 It is also worth bearing in mind that the standard of proof in these cases is a more flexible one than that in criminal proceedings. 5 3. State responsibility for an enforced disappearance has been deduced from the combined effect of two types of evidence: the general context, that is the situation in the State, and the circumstances specific to the victim and his or her disappearance. 6 Regarding the first type, there is overwhelming evidence from highly credible sources that the conditions in the Bolivarian Republic of Venezuela are repressive and authoritarian, and that they have spawned the greatest refugee crisis that Latin America has ever witnessed. The Committee stated that no information was submitted in the present case as to the context of enforced disappearances, noting that the information provided related to periods either before (1958– 1998) or after (April–July 2017) the events in question (para. 9.3). One does not have to go far, however, to discover how dissent has been brutally silenced in the Bolivarian Republic of Venezuela, including during the period in question. Conditions have deteriorated to such an extent that in September 2019 the Human Rights Council established a fact-finding mission to investigate the situation of human rights in the country, including with regard to enforced disappearances, since 2014. 7 Furthermore, many respected non-governmental organizations, such as Amnesty International and Human Rights Watch, have publicized the brutality of State responses to dissent over the period 2014–2019, involving torture, extrajudicial executions and forced disappearances.8 4. The circumstances relating to the victim in the present case demonstrate the specific peril he faced. Mr. Mora Márquez was not an ordinary citizen but the well-known regional 1 2 3 4 5 6 7 8 12 See communication No. 139/1983, Conteris v. Uruguay, Views adopted on 17 July 1985, para. 7.2; and Medjnoune v. Algeria (CCPR/C/87/D/1297/2004), para. 8.3. Serna et al. v. Colombia (CCPR/C/114/D/2134/2012), appendix II, para. 6. Inter-American Court of Human Rights, Godínez Cruz v. Honduras, judgment of 20 January 1989, merits, para. 136. Ibid., para. 137. Ibid., paras 133–134 and 140. Serna et al. v. Colombia, para. 9.3. Human Rights Council resolution 42/25. See www.amnesty.org/download/Documents/AMR5302222019ENGLISH.PDF, www.refworld.org/docid/54f07d7815.html and https://edition.cnn.com/2019/04/30/americas/venezuela-special-action-force-faes-accused-deathsintl/index.html. GE.20-07124