CED/C/10/D/1/2013
Committee considers that the State party failed to fulfil its obligations under article 20 (2)
of the Convention.
10.8 With regard to the authors’ claims that they have not been able to play an active part
in the investigation of their brother’s case, including his enforced disappearance, because
they have been refused legal standing as private criminal plaintiffs, the Committee recalls
that, in accordance with article 24 of the Convention, the term “victim” is understood to
mean the disappeared person and any individual who has suffered harm as the direct result
of an enforced disappearance. The Committee notes that the State party has not advanced
any arguments that would lead to the conclusion that Mr. Yrusta��s sisters do not fall into
that category. Moreover, the Committee considers that the anguish and suffering
experienced by the authors owing to the lack of information that would allow clarification
of what happened to their brother have been exacerbated by the de facto failure to
acknowledge their status as victims, which thus becomes a cause of revictimization that is
incompatible with the principles enshrined in the Convention.
10.9 The Committee also notes that, according to the information before it, the
investigations that have been opened into the case of Mr. Yrusta have been based on the
causes and circumstances of his death and the criminal liability that might arise therefrom.
Meanwhile, his alleged disappearance during a period of over seven days is not referred to
in any of the files made available in connection with the present communication. Pursuant
to article 12 (1) of the Convention: “Each State Party shall ensure that any individual who
alleges that a person has been subjected to enforced disappearance has the right to report
the facts to the competent authorities, which shall examine the allegation promptly and
impartially and, where necessary, undertake without delay a thorough and impartial
investigation.” In the same vein, article 24 of the Convention stipulates that: “1. For the
purposes of this Convention, “victim” means the disappeared person and any individual
who has suffered harm as the direct result of an enforced disappearance. 2. Each victim has
the right to know the truth regarding the circumstances of the enforced disappearance, the
progress and results of the investigation and the fate of the disappeared person. Each State
Party shall take appropriate measures in this regard. 3. Each State Party shall take all
appropriate measures to search for, locate and release disappeared persons and, in the event
of death, to locate, respect and return their remains.” The Committee considers that, in the
present case, the mere fact that it took over a year for a decision to be issued regarding the
right of Mr. Yrusta’s family members to take part in the investigative proceedings entails,
in and of itself, a violation of articles 12 (1) and 24 (1), (2) and (3) of the Convention. After
such a long period has passed, the possibility of playing an active and effective part in the
proceedings is lessened to such an extent that the impairment of the right in question
becomes irreversible, in violation of the victims’ right to know the truth. In the absence of a
satisfactory explanation from the State party, the Committee considers that the facts before
it disclose a violation of articles 12 (1) and 24 (1), (2) and (3) of the Convention.
E.
Conclusion and recommendations
11.
The Committee, acting under article 31 (5) of the Convention, finds that the facts
before it reveal a violation of articles 1, 2, 12 (1), 17, 18, 20 and 24 (1), (2) and (3), of the
Convention in relation to Mr. Yrusta; and of articles 12 (1), 18, 20 and 24 (1), (2) and (3),
in relation to the authors.
12.
In accordance with article 31 (5) of the Convention, the Committee urges the State
party to:
(a)
Recognize the authors’ status as victims, thereby allowing them to play an
effective part in the investigations into the death and enforced disappearance of their
brother;
16
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