CCPR/C/112/D/2098/2011 Appendix [Original: Spanish] Individual (concurring) opinion of Fabián Omar Salvioli 1. I endorsed the decision in the Ammari v. Algeria case (communication No. 2098/2011), in which the Committee concludes that the State party bears international responsibility for violations of articles 7, 9 and 16 of the Covenant, and of article 2 (para. 3), read in conjunction with articles 7, 9 and 16, with regard to Toufik Ammari. I also agree with the finding of a violation of article 7 and of article 2 (para. 3), read in conjunction with article 7, with regard to Tahar Ammari. 2. I consider, however, that the Committee should have concluded that there has been a violation of article 6 of the Covenant with regard to Toufik Ammari, the victim of an enforced disappearance which has placed him and continues to place him in a situation of grave risk to his life. Consequently, and irrespective of whether or not the victim is still alive, the State party has not duly fulfilled its obligation to protect the right to life. 3. As I have indicated in my individual opinion in the Benaziza v. Algeria case, a finding of a violation of article 6 does not imply that the person concerned is dead. The Committee has been inconsistent in its treatment of cases of enforced disappearance. In some instances, it has found a violation of article 6, and in others it has remained silent on the subject, although the established facts were identical. I also discussed in my individual opinion the question of the obligation of States to guarantee rights and the relationship between enforced disappearance and article 6.a 4. For a time, the Committee had interpreted the scope of article 6 of the Covenant restrictively and, in cases concerning enforced disappearance, it had found a violation of article 2, paragraph 3, read in conjunction with article 6. Starting with the Djebbar and Chihoub case (communication No. 1811/2008 adopted in October 2011), the Committee has taken a new position: it has found a direct violation of article 6 in cases of enforced disappearance; it has made it clear that such findings do not imply that it assumes the missing persons to be dead; and it has concluded that the State party must release the victims if they are still alive. b 5. Although it has moved in the right direction, in most cases the Committee continues to take decisions based on the legal arguments of the parties and not on established facts. That has resulted in many inconsistencies and has led to cases in which identical established facts have been dealt with in different ways. 6. As I have pointed out, this inconsistent approach (which is more comparable to one used by a common law court than by an international human rights body), the Committee incomprehensibly limits its own powers.c The task of every human rights body is to apply the law on the basis of the established facts. I have already shown that all international a b c GE.14-24393 See communication No. 1588/2007, Benaziza v. Algeria, Views adopted on 26 July 2010, individual opinion of Fabián Salvioli (partially dissenting), paras. 16 to 23. Communication No. 1811/2008, Djebbar and Chihoub v. Algeria, Views adopted on 31 October 2011, para. 10. See communication No. 1406/2005, Weerawansa v. Sri Lanka, Views adopted on 17 March 2009, individual opinion of Fabián Salvioli (partially dissenting), paras. 3 to 5. 13