CCPR/C/113/D/2022/2011
investigate allegations of violations and to bring to justice perpetrators of certain violations
(notably torture and similar cruel, inhuman and degrading treatment, summary and arbitrary
killings and enforced disappearances) could, in and of itself, give rise to a separate breach
of the Covenant.
9.3
The authors do not allege that the State party was directly responsible for the
enforced disappearance of their son and brother, respectively. Indeed, the authors allege
that the disappearance was initiated in the State party’s territory by forces of the National
Yugoslav Army. The Committee observes that the term “enforced disappearance” may be
used, in an extended sense, to refer to disappearances initiated by forces independent of or
hostile to a State party, in addition to disappearances attributable to a State party. 17 The
Committee also notes that the State party does not contest the characterization of the events
as an enforced disappearance.
9.4
The Committee notes the State party’s information that it has made considerable
efforts at the general level, in view of the more than 30,000 cases of enforced disappearance
that occurred during the conflict. Notably, the Constitutional Court has established that the
authorities are responsible for investigating the disappearance of the applicants’ relatives,
including Mr. Hamulić (see para. 2.9 above), and domestic mechanisms have been set up to
deal with enforced disappearances and other war crimes cases (see para. 4.2 above).
9.5
Without prejudice to the continuing obligation of States parties to investigate all
dimensions of an enforced disappearance, including bringing those responsible to justice,
the Committee recognizes the particular difficulties that a State party may face in
investigating crimes that may have been committed on its territory by the hostile forces of a
foreign State. Therefore, while acknowledging the gravity of the disappearances and the
suffering of the authors, because the fate or whereabouts of their missing son and brother
has not yet been clarified and the culprits have not yet been brought to justice, the
Committee considers that that in itself is not sufficient to find a breach of article 2 (3), of
the Covenant in the particular circumstances of the present communication.
9.6
That being said, the authors claim that, at the time of the filing of their
communication, more than 18 years after the alleged disappearance of their relative and
more than 2 years after the judgement of the Constitutional Court of 13 May 2008, the
investigative authorities had not contacted them for information regarding the
disappearance of Mr. Hamulić. On 18 August 2010, the authors applied to the
Constitutional Court and requested it to adopt a ruling establishing that the authorities had
failed to enforce its decision of 13 May 2008. Nonetheless, the Constitutional Court has
taken no decision and no action has been carried out by the authorities on Mr. Hamulić’s
case. The State party has provided general information on its efforts to find out the fate and
whereabouts of missing persons and prosecute perpetrators. Nevertheless, it has failed to
provide the authors or the Committee with specific and relevant information concerning the
steps taken to establish Mr. Hamulić’s fate and whereabouts, and to locate his mortal
remains should he have died. The Committee further observes that the authorities have
provided very limited and general information to the authors as to their relative’s case. The
Committee considers that authorities investigating enforced disappearances must give the
17
12
Compare article 7 (2) (i), of the Rome Statute of the International Criminal Court (defining enforced
disappearance as including disappearances conducted by a political organization), with articles 2 and
3 of the International Convention for the Protection of All Persons from Enforced Disappearance
(distinguishing between enforced disappearances conducted by States or by persons or groups acting
with their authorization, support or acquiescence, and similar acts conducted by persons or groups
acting without such authorization, support or acquiescence). See also communication No. 1956/2010,
Durić v. Bosnia and Herzegovina, Views adopted on 16 July 2014, para. 9.3.