or a political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those
persons, with the intention of removing them from
the protection of the law for a prolonged period of
time. Any act of such disappearance constitutes a
violation of many of the rights enshrined in the
Covenant, including the right to liberty and security
of the person (art. 9), the right not to be subjected to
torture or to cruel, inhuman or degrading treatment
or punishment (art. 7), and the right of all persons
deprived of their liberty to be treated with humanity
and with respect for the inherent dignity of the
human person (art. 10). It also violates or constitutes
a grave threat to the right to life (art. 6).
information available to it. In cases where the
allegations are corroborated by evidence submitted
by the author and where further clarification of the
cases depends on information exclusively in the
hands of the State party, the Committee may
consider the author’s allegations as substantiated in
the absence of satisfactory evidence and explanation
to the contrary submitted by the State party.
9.5 As to the alleged violation of article 9,
paragraph 1, the evidence before the Committee
reveals that Mr. Saker was removed from his home
by State agents. The State party has not addressed
the author’s claims that her husband’s arrest was
made in the absence of a warrant. It has failed to
indicate the legal basis on which the author’s
husband was subsequently transferred to military
custody. It has failed to document its assertion that
he was subsequently released, even less how he was
released with conditions of safety. All these
considerations lead the Committee to conclude that
the detention as a whole was arbitrary, nor has the
State party adduced evidence that the detention of
Mr. Saker was not arbitrary or illegal. The
Committee concludes that, in the circumstances,
there has been a violation of article 9, paragraph 1.12
9.3 With regard to the author’s claim of the
disappearance of her husband, the Committee notes
that the author and the State party have submitted
different accounts, dates and outcome of events.
While the author contends that her husband was
arrested without a warrant on 29 May 1994, and
according to a letter from the judicial police
(referring to Decision No. 16536/96 of the Director
of Public Prosecutions of the Tribunal of
Constantine) he was handed over to the Territorial
Centre on 3 July 1994, the State party contends that
Mr. Saker was arrested on 12 June 1994, handed
over to the military branch of the judicial police on
15 June 1994, and released some time thereafter.
The Committee also recalls that according to the
National Observatory for Human Rights, the
author’s husband was “kidnapped” by an
unidentified military group, this according to
information received from the security forces. The
Committee notes that the State party has not
responded to the sufficiently detailed allegations
exposed by the author, nor submitted any evidence
such as arrest warrants, release papers, records of
interrogation or detention.
9.6 As to the alleged violation of article 9,
paragraph 3, the Committee recalls that the right to
be brought “promptly” before a judicial authority
implies that delays must not exceed a few days, and
that incommunicado detention as such may violate
article 9, paragraph 3.13 It takes note of the author’s
argument that her husband was held incommunicado
for 33 days by the judicial police before being
transferred to the Territorial Centre on 3 July 1994,
without any possibility of access to a lawyer during
that period. It concludes that the facts before it
disclose a violation of article 9, paragraph 3.
9.7 As to the alleged violation of article 9,
paragraph 4, the Committee recalls that the author’s
husband had no access to counsel during his
incommunicado detention, which prevented him
from challenging the lawfulness of his detention
during that period. In the absence of any pertinent
information on this point from the State party, the
Committee finds that Mr. Saker’s right to judicial
review of the lawfulness of his detention (art. 9,
para. 4) has also been violated.
9.4 The Committee has consistently maintained11
that the burden of proof cannot rest alone on the
author of the communication, especially considering
that the author and the State party do not always
have equal access to the evidence and that frequently
the State party alone has access to the relevant
information. It is implicit in article 4, paragraph 2, of
the Optional Protocol that the State party has the
duty to investigate in good faith all allegations of
violation of the Covenant made against it and its
authorities and to furnish to the Committee the
9.8 The Committee notes that while
specifically invoked by the author,
11
12
Communication No. 146/1983, Baboeram-Adhin and
others v. Suriname, Views adopted on 4 April 1985, para.
14.2; communication No. 139/1983, Conteris v. Uruguay,
Views adopted on 17 July 1985, para. 7.2; communication
No. 202/1986, Graciela Ato del Avellanal v. Peru, Views
adopted on 31 October 1988, para. 9.2; communication
No. 30/1978, Bleier v. Uruguay, Views adopted on 29
March 1982, para. 13.3.
not
the
Communication No. 778/1997, Coronel et al. v.
Colombia, Views adopted on 24 October 2002, para. 9.4;
communication No. 449/1991, Barbarín Mojica v.
Dominican Republic, Views adopted on 10 August 1994,
para. 5.4.
13
Communication No. 1128/2002, Rafael Marques de
Morais v. Angola, Views adopted on 29 March 2005,
para. 6.3. See also general comment No. 8 (16), para. 2.
63
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