CCPR/C/128/D/2819/2016
circumstances, the Committee finds that it is not precluded from considering the
communication under article 5 (2) (b) of the Optional Protocol.
7.5
The Committee notes that the author has alleged separate violations of her own rights
under article 2 (2) and (3) of the Covenant. Recalling its jurisprudence to the effect that the
provisions of article 2 lay down general obligations for States parties and cannot, by
themselves, give rise to a separate claim under the Optional Protocol because they may be
invoked only in conjunction with other substantive articles of the Covenant,21 the Committee
considers the author’s separate claims under article 2 (2) and (3) of the Covenant to be
inadmissible under article 3 of the Optional Protocol.
7.6
However, the Committee is of the view that the author has sufficiently substantiated
her other claims for purposes of admissibility and proceeds to consider the merits of the
claims made under articles 2 (3), 6 (1), 7, 9, 10, 14 and 16 of the Covenant.
Consideration of the merits
8.1
The Committee has considered the present communication in the light of all
information made available to it, as required under article 5 (1) of the Optional Protocol.
8.2
The Committee notes that the State party has merely referred to the collective and
general observations that it had previously transmitted to the Working Group on Enforced or
Involuntary Disappearances and to the Committee in connection with previous
communications, in order to confirm its position that such cases have already been settled
through the implementation of the Charter for Peace and National Reconciliation. The
Committee refers to its jurisprudence and to its concluding observations on the fourth
periodic report of Algeria, and recalls that the State party may not use the provisions of the
Charter against persons who invoke provisions of the Covenant or who have submitted, or
may submit, communications to the Committee. The Covenant requires the State party to
concern itself with the fate of every individual and to treat every individual with respect for
the inherent dignity of the human person. Given that the amendments recommended by the
Committee have not been introduced, Ordinance No. 06-01 contributes, in the present case,
to impunity and cannot be considered compatible with the provisions of the Covenant. 22
8.3
The Committee notes that the State party has not responded to the author’s claims
concerning the merits of the case and recalls that, as has been established in its jurisprudence,
the burden of proof should not rest solely on the author of a communication, especially given
the fact that the author and the State party do not always have the same degree of access to
evidence and that, often, the State party alone has the necessary information.23 Under article
4 (2) of the Optional Protocol, the State party has the duty to investigate in good faith all
allegations of violations of the Covenant made against it and its representatives and to provide
the Committee with whatever information is available to it. 24 In the absence of any
explanations from the State party in this respect, due weight must be given to the author’s
allegations, provided that they have been sufficiently substantiated.
8.4
The Committee recalls that, while the Covenant does not explicitly use the term
“enforced disappearance” in any of its articles, enforced disappearance constitutes a unique
and integrated series of acts that represents continuing violation of various rights recognized
in that treaty, such as the right to life, the right not to be subjected to torture and other cruel,
21
22
23
24
8
See, for example, H.E.A.K. v. Denmark (CCPR/C/114/D/2343/2014), para. 7.4; Castañeda v. Mexico
(CCPR/C/108/D/2202/2012), para. 6.8; Ch.H.O. v. Canada (CCPR/C/118/D/2195/2012), para. 9.4;
Peirano Basso v. Uruguay (CCPR/C/100/D/1887/2009), para. 9.4; and A.P. v. Ukraine
(CCPR/C/105/D/1834/2008), para. 8.5.
Zaier v. Algeria, para. 7.2, and Ammari v. Algeria, para. 8.2.
See, inter alia, Zaier v. Algeria, para. 7.3; Ammari v. Algeria, para. 8.3; Mezine v. Algeria, para. 8.3;
El Abani v. Libyan Arab Jamahiriya (CCPR/C/99/D/1640/2007), para. 7.4; and Berzig v. Algeria
(CCPR/C/103/D/1781/2008), para. 8.3.
Mezine v. Algeria, para. 8.3; and Medjnoune v. Algeria, para. 8.3.
GE.20-12768