CCPR/C/115/D/2214/2012 Appendix Individual opinion of Olivier de Frouville, Yadh Ben Achour and Mauro Politi (partly dissenting) 1. We disagree with the Committee’s decision not to consider separately the author’s complaint under article 16 of the Covenant, according to which “Everyone shall have the right to recognition everywhere as a person before the law”. We believe that the treatment suffered by the author clearly justified a finding of a violation of article 16 by the Committee, in addition to the findings of violations on the basis of articles 7, 9 and 10. In the case at hand, the author was subject not only to arbitrary detention in the usual sense, but to secret detention. a Such detention is characterized not by the restrictions on information to third parties or on the right of the person deprived of liberty to communicate with counsel of his or her choice or to inform his or her family. All those restrictions are reprehensible and may lead to a finding of a violation of article 9; however, they do not necessarily lead to the removal of the person from the framework of the law. Some countries have legal regimes of incommunicado detention, based on such restrictions. But, as objectionable as they may be, those regimes remain established by law and are generally associated with certain guarantees, however minimal. b Thus, a person subjected to such a restrictive regime continues to enjoy recognition as a person before the law. Incommunicado detention as practised in the present case, however, lies outside any legal framework. This type of practice means that the person is plunged into a legal vacuum, not only because the deprivation of liberty itself has no legal basis, but because it is organized so that the person does not have access to any remedy, cannot assert any right and is thus completely at the mercy of the persecutor. If a police officer tortures a detainee in a police station, the victim is treated “as an object” at the hands of the torturer, but the idea of the law is still present as a third party in that relationship, because the victim can hold on to the hope of escape and of complaining about the treatment suffered to a superior officer, a judge or to his or her lawyer. In secret detention, however, this possibility is completely absent, leaving nothing but a cruel and intimate exchange between the persecutor and the victim, which reduces the latter to the status of an object: the very idea of the law offering mediation and protection is removed. It is for that reason that the International Convention for the Protection of All Persons from Enforced Disappearance makes the right not to be subjected to secret detention an absolute right, c as is the right to recognition as a person before the law in article 16 of the Covenant (see article 4 of the Covenant). It would seem quite preposterous to assert that such treatment could be justified in the circumstances covered by article 4. 2. The question here is not whether the treatment in question may or may not be described as enforced disappearance within the meaning of the International Convention for the Protection of All Persons from Enforced Disappearance, which has not been invoked by the author of the communication. The problem is to decide __________________ a b c GE.15-22873 See, for example, article 17, paragraph 1, of the International Convention for the Protection of All Persons from Enforced Disappearance. See, for example, the Committee’s concluding observations concerning the sixth periodic report of Spain, on the regime of incommunicado detention (CCPR/C/ ESP/CO/6, para. 17); and communication No. 1945/2010, Maria Cruz Achabal Puertas v. Spain, Views adopted on 27 March 2013, in which the Committee recalls, under the remedies that the State party should adopt, the recommendation made during the consideration of its fifth periodic report that “it should take the necessary measures, including legislative ones, to definitively put an end to the practice of incommunicado detention and to guarantee that all detainees have the right to freely choose a lawyer who can be consulted in complete confidentiality and who can be present at interrogations ”. International Convention for the Protection of All Persons from Enforced Disappearance , art. 17, para. 1: “No one shall be held in secret detention.” 13/17