CCPR/C/113/D/2022/2011
domestic authorities, including the Constitutional Court, have qualified Husein Hamulić as
a missing person. However, his fate and whereabouts have not yet been ascertained.
Further, the authorities have not implemented the decision of the Constitutional Court of 13
May 2008 and the Office of the Prosecutor has not taken any measure to sanction those
responsible for such failure.
The complaint
3.1
The authors maintain that Husein Hamulić was the victim of enforced disappearance
by members of the National Yugoslav Army, that enforced disappearances comprise, by
their nature, multiple offences, and that, in his case, it amounts to a violation of articles 6, 7,
9 and 16, read in conjunction with article 2 (3), of the Covenant. The authors point out that
Husein’s fate and whereabouts have remained unknown since 20 July 1992 and that his
disappearance occurred within the context of a widespread and systematic attack directed
against the civilian population. The fact that he was last seen alive in the woods of
Hambarine, an area under the control of the National Yugoslav Army and paramilitary
groups that were perpetrating acts of ethnic cleansing, makes it possible to conclude that he
was placed in a situation of grave risk of suffering irreparable damages to his personal
integrity and life.
3.2
In spite of their efforts, the authors have not received any relevant information about
the causes and circumstances of Mr. Hamulić’s disappearance. They note that although they
reported his disappearance to institutions dealing with missing persons in the State party
and although the authorities therefore had access to relevant information on his case, no ex
officio, prompt, impartial, thorough and independent investigation has been carried out to
find out his fate and whereabouts; that, should he have died, his mortal remains have not
been located, exhumed, identified or returned to his loved ones; and that no one has been
summoned, investigated or convicted for his enforced disappearance.
3.3
The State party is responsible for investigating all cases of enforced disappearance
and for providing information on the whereabouts of missing persons. In this respect, the
authors refer to a report of the Working Group on Enforced or Involuntary Disappearances
in which it is stated that the primary responsibility for carrying out these tasks remains with
the authorities under whose jurisdiction a suspected mass grave falls. 8 The authors further
argue that the State party has an obligation to conduct ex officio, prompt, impartial,
thorough and independent investigations into gross human rights violations, such as
enforced disappearances, acts of torture or arbitrary killings. The obligation to conduct an
investigation also applies in cases of killings or other acts affecting the enjoyment of human
rights that are not imputable to the State. In these cases, the obligation to investigate arises
from the duty of the State to protect all individuals under its jurisdiction from acts
committed by private persons or groups of persons that may impede the enjoyment of their
human rights.9
8
9
6
Protection of all Persons against Enforced Disappearance, art. 8 (1); and communication No.
400/1990, Mónaco de Gallicchio v. Argentina, Views adopted on 3 April 1995, para. 10.4.
Nowak, report on the special process on missing persons in the territory of the former Yugoslavia (see
footnote 1, para. 78).
See Human Rights Committee general comment No. 31 (2004) on the nature of the general legal
obligation imposed on States parties to the Covenant, para. 8. See also Inter-American Court of
Human Rights, Chitay Nech and others v. Guatemala, judgement of 25 May 2010, series C No. 212,
para. 89; Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, judgement of 29
July 1988, series C No. 4, para. 172; European Court of Human Rights, Demiray v. Turkey,
application No. 27308/95, judgement of 21 November 2000, para. 50; European Court of Human
Rights, Tanrikulu v. Turkey, application No. 23763/94, judgement of 8 July 1999, para. 103; and