CCPR/C/113/D/2028/2011
may dispose of that patrimony until the disappeared appears alive or is declared
dead, that is a ‘non-person’.g
8.
The fact of placing a person outside the law is the key element that distinguishes an
enforced disappearance from certain other forms of deprivation of liberty in which the right
of third parties to obtain information on the detention is subject to restrictions, sometimes
substantial ones. Articles 18, 19 and 20 of the International Convention for the Protection
of All Persons from Enforced Disappearance are designed to specify the legal regime of
this right to information of third parties, defining in this way the contours of a kind of
habeas corpus. Article 20, in particular, states:
Only where a person is under the protection of the law and the deprivation of liberty
is subject to judicial control may the right to information referred to in article 18 be
restricted, on an exceptional basis, where strictly necessary and where provided for
by law, and if the transmission of the information would 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. 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.
10.
This is the Gordian Knot of the Convention: how to reconcile the need, in certain
cases, to restrict access to information concerning a person deprived of liberty, and thus to
refuse to provide such information, and the imperative of ensuring that the person remains
under the protection of the law. This dilemma reveals the centrality of the fact of “placing a
person outside the protection of the law”. A violation of article 20, namely, a total denial of
the right to information, amounts in practice to denying the very existence of the
disappeared as a legal person.
11.
It follows that to characterize enforced disappearance as a deprivation of liberty
amounts to saying that the person has been placed outside the protection of the law. This
removal from protection of the law manifests itself externally as a total denial of the right to
information on the deprivation of liberty, which usually 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 Disappearance, article 3).
12.
With this denial or refusal to provide information, the person effectively becomes a
“non-person”, is reduced to the state of an object in the hands of the authorities and is
deprived of legal personality, which constitutes a violation of article 16 of the Convention.
13.
It therefore appears to us illogical that the Committee should find that a deprivation
of liberty could be characterized as enforced disappearance and that it should refrain from
finding that there had been a violation of article 16.
14.
The fact that, in this instance, the enforced disappearance is not the responsibility of
the State party in no way affects this conclusion. Admittedly, it is alleged that the
g
See paras. 1 and 2 of the general comment on the right to recognition as a person before the law in the
context of enforced disappearances (A/HRC/19/58/Rev.1, para. 42).
19
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