Disappearance, as the Committee itself indicates in
paragraph 6.4 of its decision, constitutes a continuing
violation. The continuing nature of this violation precludes
the application of the exception ratione temporis and of
the reservation of Chile, in so far as the latter cannot
exclude the competence of the Committee with regard to
ongoing violations.
“confirm” the enforced disappearance. This analysis could
be applied to acts that fall within the scope of the Rome
Statute, but it cannot prevail in the framework of articles 9
and 16 of the Covenant, since the issue involves
continuing violations of those two provisions.
Indeed, to evade its responsibility, the State cannot limit
itself to adopting an attitude of passive consent: it must
provide evidence that it has used all available means to
determine the whereabouts of the disappeared person. This
was not done in the present case, and the undersigned
cannot agree that there has been no violation of the
Covenant.
The solution adopted by the Committee entails
discharging the State of its responsibility for the sole
reason that the State does not deny the criminal acts, as
demonstrated by the fact that it has taken no action to
Communication No. 1102/2002
Submitted by: Semey Joe Johnson (not represented by counsel)
Alleged victim: The author
State party: Spain
Declared inadmissible: 27 March 2006
Subject matter: Establishment of guilt of involuntary
manslaughter by trial, right to a second
hearing
number plate and a false driving licence with the
author’s personal details. The driving licence was
withheld by the police and the driver was allowed to
recover his vehicle. During the trial, the author
constantly denied any connection with the
aforementioned events, alleging that his driving
licence had been mislaid, and that someone had used
his personal details to falsify the driving licence now
in the court’s possession.
Procedural issues: Insufficient substantiation of the
alleged violations
Substantive issues: Right to due process, right to a
second hearing, equality before the law
Articles of the Covenant: 14 and 26
2.2 On 19 June 2000, the Madrid Criminal Court
No. 27 sentenced the author to three and one-half
years’ imprisonment for involuntary manslaughter,
with a specific disqualification from the right to be
elected during the time of his sentence and loss of
driving licence for four years, and for two offences
of falsification, with two years’ imprisonment for
each offence, with specific disqualification from the
exercise of the right to be elected during the time of
his sentence, and a 12-month fine to be paid in daily
quotas of 200 pesetas (€1.20), subject to deprivation
of liberty of one day for every two unpaid quotas.
Article of the Optional Protocol: 2
1.1 The author of this communication of 15
August 2001 is Semey Joe Johnson,1 a Canadian and
Cameroonian citizen born in 1969, currently being
held at the Torrendondo Penitentiary Centre in
Madrid. The author claims to be a victim of
violations by Spain of article 14, paragraphs 1, 2, 3
(e), and 5, and article 26 of the International
Covenant on Civil and Political Rights. He is not
represented by counsel.
2.3 The author lodged an appeal with the Madrid
Provincial High Court alleging a violation of the
right to presumption of innocence, an error in
assessing
the
evidence—which
allegedly
contradicted the report based on the identity
parade—and the absence of grounds for the sentence
passed. On 5 October 2000, the Provincial High
Court dismissed the appeal and upheld the sentence
of the Criminal Court, on the grounds that both the
evidence of the witnesses and the handwriting
expert’s report produced in the lower court were
valid and sufficient to prove that the author was
1.2 The Optional Protocol entered into force for
Spain on 25 April 1985.
The facts as presented by the author
2.1 The author was tried for allegedly causing a
traffic accident that took place on 21 February 1998,
which resulted in one person’s death. The driver of
the vehicle that caused the accident had a false
1
Also known by the name “Joseph Semey”, by which he
identifies himself in communication No. 986/2001,
submitted on an earlier occasion to the Committee with
regard to his sentence for another crime.
7
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