security of person. In its prior jurisprudence, the
Committee has held that this right may be invoked
not only in the context of arrest and detention, and
that an interpretation which would allow States
parties to tolerate, condone or ignore threats made by
persons in authority to the personal liberty and
security of non-detained individuals within the State
party's jurisdiction would render ineffective the
guarantees of the Covenant.1 In the circumstances of
the case, the Committee concludes that the State
party has failed to ensure Rafael Mojica's right to
liberty and security of the person, in violation of
article 9, paragraph 1, of the Covenant.
satisfied that the requirements of article 5, paragraph 2
(b), of the Optional Protocol had been met.
4.2 As to the author's claim under article 10,
paragraph 1, of the Covenant, the Committee
considered that it had not been substantiated and that
it related to what might hypothetically have
happened to Rafael Mojica after his disappearance
on 5 May 1990; the Committee thus concluded that
in this respect, the author had no claim under article
2 of the Optional Protocol.
4.3 Concerning the author's claims under articles
6, 7 and 9, paragraph 1, the Committee considered
them to be substantiated, for purposes of
admissibility. On 18 March 1993, therefore, the
Committee declared the communication admissible
in so far as it appeared to raise issues under articles
6, 7 and 9 of the Covenant. The State party was
requested, in particular, to provide information about
the results of the investigation into Mr. Mojica's
disappearance and to forward copies of all relevant
documentation in the case.
5.5 In respect of the alleged violation of article 6,
paragraph 1, the Committee recalls its general
comment 6 (16) on article 6, in which it is stated,
inter alia, that States parties should take specific and
effective measures to prevent the disappearance of
individuals and establish effective facilities and
procedures to investigate thoroughly, by an
appropriate impartial body, cases of missing and
disappeared persons in circumstances that may
involve a violation of the right to life.
Examination of the merits
5.6 The Committee observes that the State party
has not denied that Rafael Mojica (a) has in fact
disappeared and remains unaccounted for since the
evening of 5 May 1990, and (b) that his
disappearance was caused by individuals belonging
to the Government's security forces. In the
circumstances, the Committee finds that the right to
life enshrined in article 6 has not been effectively
protected by the Dominican Republic, especially
considering that this is a case where the victim's
life had previously been threatened by military
officers.
5.1 The State party's deadline under article 4,
paragraph 2, of the Optional Protocol expired on
10 November 1993. No submission on the merits has
been received from the State party, in spite of a
reminder addressed to it on 2 May 1994.
5.2 The Committee has noted with regret and
concern the absence of cooperation on the part of the
State party in respect of both the admissibility and
the merits of the communication. It is implicit in
article 4, paragraph 2, of the Optional Protocol and
in rule 91 of the rules of procedure that a State party
should investigate thoroughly, in good faith and
within the imparted deadlines, all the allegations of
violations of the Covenant made against it and make
available to the Committee all the information at its
disposal. This the State party has failed to do.
Accordingly, due weight must be given to the
author's allegations, to the extent that they have been
substantiated.
5.7 The circumstances surrounding Rafael
Mojica's disappearance, including the threats made
against him, give rise to a strong inference that he
was tortured or subjected to cruel and inhuman
treatment. Nothing has been submitted to the
Committee by the State party to dispel or counter
this inference. Aware of the nature of enforced or
involuntary disappearances in many countries, the
Committee feels confident in concluding that the
disappearance of persons is inseparably linked to
treatment that amounts to a violation of article 7.
5.3 The author has alleged a violation of article 9,
paragraph 1, of the Covenant. Although there is no
evidence that Rafael Mojica was actually arrested or
detained on or after 5 May 1990, the Committee
recalls that under the terms of the decision on
admissibility, the State party was requested to clarify
these issues; it has not done so. The Committee
further notes the allegation that Rafael Mojica had
received death threats from some military officers of
the Dirección de Bienes Nacionales in the weeks
prior to his disappearance; this information, again,
has not been refuted by the State party.
1
See Official Records of the General Assembly, Fortysixth Session, Supplement No. 40 (A/46/40), annex IX.D,
communication No. 195/1985 (Delgado Páez v.
Colombia), Views adopted on 12 July 1990, paras. 5.5 and
5.6; ibid., Forty-eighth Session, Supplement No. 40
(A/48/40), annex XII.I, communication No. 314/1988
(Bwalya v. Zambia), Views adopted on 14 July 1993,
para. 6.4; and annex IX.BB below, communication
No. 468/1991 (Oló Bahamonde v. Equatorial Guinea),
Views adopted on 20 October 1993, para. 9.2.
5.4 The first sentence of article 9, paragraph 1,
guarantees to everyone the right to liberty and
71
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