CCPR/C/113/D/2022/2011
adversely affect the privacy or safety of the person, hinder a criminal
investigation, or for other equivalent reasons in accordance with the law, and in
conformity with applicable international law and with the objectives of this
Convention. In no case shall there be restrictions on the right to information
referred to in article 18 that could constitute conduct defined in article 2 or be in
violation of article 17, paragraph 1.2. Without prejudice to consideration of the
lawfulness of the deprivation of a person’s liberty, States parties shall guarantee to
the persons referred to in article 18, paragraph 1, the right to a prompt and
effective judicial remedy as a means of obtaining without delay the information
referred to in article 18, paragraph 1. This right to a remedy may not be suspended
or restricted in any circumstances.
6.
This is the Gordian knot of the Convention: how to reconcile the need in some
cases to restrict access to information concerning a person deprived of liberty, and
therefore to refuse to provide such information, and the imperative, nevertheless, of
keeping the person under the protection of the law. This dilemma shows the essential
nature of the constituent element of “placement of a person outside the protection of the
law”. A violation of article 20, i.e. the complete denial of the right to information,
amounts in practice to denying the very existence of the disappeared as a legal person.
7.
As a result, describing the deprivation of liberty as enforced disappearance is
tantamount to saying that the person was removed from the protection of the law during
this deprivation of liberty. From the outside, such a removal arises from the complete
denial of the right to information on the deprivation of liberty, which most often takes
the form of a denial of the deprivation of liberty or else, at the very least, “concealment
of the fate or whereabouts of the disappeared person” (International Convention for the
Protection of All Persons from Enforced Disappearances, art. 2).
8.
With the denial or refusal to provide information, persons become, in reality,
“non-persons”, reduced to the status of an object at the hands of the authorities and
deprived of legal personality, which is a characteristic feature of a violation of article 16
of the Covenant.
9.
It seems to us therefore illogical that the Committee should state that the
deprivation of liberty could be described as enforced disappearance and should refrain at
the same time from finding a violation of article 16.
10.
The fact that in this case the enforced disappearance is not attributed to the State
party does not in any way change this conclusion. Of course, the allegation is that the
disappearance is attributable to the “hostile forces of a foreign State” operating in the
territory of the State party. However, what is at stake here is the failure of the State party
to meet its procedural obligations under article 2. Enforced disappearance plays a
catalytic role in the State party’s responsibility, but such responsibility is incurred based
on its failure to act by offering an effective remedy to the family members of the
disappeared person. No doubt the wording adopted by the Committee in paragraph 10 of
its Views might be misleading on this point, since it considers that the facts reveal a
violation of articles 6, 7 and 9, read in conjunction with article 2 (3). In fact, it is article 2
(3), that is violated, in conjunction with all other articles violated by enforced
disappearance (6, 7, 9 and 16). We believe that this is how the Committee should have
formulated paragraph 10 of its Views.
18
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