CCPR/C/130/D/3599/2019 Annex II Joint opinion of Committee members Yadh Ben Achour, Arif Bulkan, Ahmed Amin Fathalla and Hélène Tigroudja (partially dissenting) 1. The first-named author was just 8 years old when she awoke one morning in August 1936 to find her father gone, vanished without warning. Shortly before, her mother had been arrested and detained incommunicado, both parents succumbing to the unspeakable fate of many who opposed the Franco dictatorship. From one day to the next, without a chance even to say goodbye, the author and her sister were cruelly orphaned, condemned to live their entire lives under the weight of this trauma. 2. In light of the time that has elapsed since those tragic events, we do not disagree with the majority of the Committee that the authors’ claims in respect of their parents are inadmissible ratione temporis. However, the authors’ claim of a violation of their own rights under article 7, read in conjunction with article 2 (3), is one of a qualitatively different nature – continuing, uninterrupted and directly related to them, and for the reasons herein we disagree that it is inadmissible. 3. The Committee’s cursory treatment of the article 7 claim as inadmissible for failure to exhaust domestic remedies is bewildering, given the mountain of uncontested facts that demonstrably reveal the contrary. As painstakingly recounted, despite official denial and their personal severe psychological stress, the authors pursued a variety of legal and administrative avenues in their dogged quest for justice. These included multiple claims before national and regional courts in Spain, requests for recognition as victims and consequential reliefs, and even the novel step of invoking extraterritorial avenues in the Argentinian legal system. Any or all of those claims would have provided some accounting for the disappearance of their parents, and in that way assuaged some of the authors’ pain and suffering resulting from their lack of knowledge of what happened. But their claims repeatedly floundered because of the uncompromising stance taken by the State party, both during and after the dictatorship, of maintaining a complete wall of silence around the atrocities committed during the dictatorship. 4. The majority’s finding of non-exhaustion is even more inscrutable when considered against extant laws in the State party. In February 2012, the Supreme Court ruled definitively that crimes committed during the Civil War and the Franco era could not be investigated or prosecuted, relying on the Amnesty Act 46/1977, the principle of legality and nonretroactivity of criminal law, the statute of limitations and the Historical Memory Act. That decision cemented the position taken by lower courts in relation to the authors’ claims, henceforth foreclosing actions not just by the authors but all victims of this period. Given the amnesty law and structural barriers to justice for victims that created a climate of impunity for grave and massive violations of human dignity,1 combined with the State party’s failure to provide any information on alternative judicial remedies at the authors’ disposal,2 there is in fact no available remedy remaining for the authors to exhaust. In this context of “impediments to victims’ access to justice”,3 ironically recognized by this very Committee in its concluding observations on Spain adopted in 2008,4 we would conclude that the authors’ claim of a violation of article 7 of the Covenant read in conjunction with article 2 (3) in respect of their own pain and suffering is not precluded by article 5 (2) (b) of the Optional Protocol and is therefore admissible. 1 2 3 4 GE.21-06035 A/HRC/27/56/Add.1. Yklymova v. Turkmenistan (CCPR/C/96/D/1460/2006), para 6.2; and Abromchik v. Belarus (CCPR/C/122/D/2228/2012), para. 9.3. A/HRC/27/56/Add.1, paras. 67 and 104 (f). CCPR/C/ESP/CO/5. See also the concluding observations adopted in 2013 by the Committee on Enforced Disappearances (CED/C/ESP/CO/1). 15