CCPR/C/113/D/2022/2011
Appendix I
Individual opinion of Committee member Anja Seibert-Fohr
(concurring)
1.
The main issue of this case is the extent to which Bosnia and Herzegovina incurred
responsibility for insufficient remedies in response to an enforced disappearance that the
authors of the communication do not attribute to the State party. The Committee has found
a violation of articles 6, 7 and 9, read in conjunction with article 2 (3) of the Covenant, with
regard to Husein Hamulić, and of article 7, read alone and in conjunction with article 2 (3),
of the Covenant with regard to the authors. I concur with this conclusion, which is
consistent with the Committee’s earlier Views. I write separately to explain the legal
reasons why the authors’ additional claim under article 16, read in conjunction with article
2 (3), of the Covenant is not substantiated.
2.
Pursuant to article 2 (3) (a), each State party undertakes to ensure that any person
whose rights or freedoms are violated shall have an effective remedy. According to the
Committee’s long-established jurisprudence, article 2 (3) does not provide for an
independent, free-standing right but can only be invoked by individuals in conjunction with
other articles of the Covenant.a It requires an arguable, well-founded claim of a violation of
a substantive right.b Therefore, the author of a communication claiming a violation of
article 2 (3), read in conjunction with article 16, of the Covenant needs to substantiate a
claim against the respective State party under article 16 or otherwise relate it to the State
party.
3.
In the present case, the authors asked the Committee to find that the State party had
violated the obligation to provide an effective remedy for a violation of article 16 of the
Covenant. They did not allege that the enforced disappearance of Mr. Hamulić was
attributable to Bosnia and Herzegovina but rather to armed forces that opposed it. Without a
further basis for connecting the State party to the disappearance, the authors have not
substantiated their claims that the State party violated article 16, read in conjunction with
article 2 (3) of the Covenant.
4.
This issue is different from the claims under articles 6, 7 and 9. The right to life, the
prohibition of torture, cruel, inhuman or degrading treatment or punishment and the right to
liberty and security of person require positive measures of protection irrespective of
whether the actual atrocity is connected to the State party. It is implicit in article 7 that
States parties have to take positive measures to ensure that private persons or entities do not
inflict torture or cruel, inhuman or degrading treatment or punishment on others within their
power.c The nature of this obligation differs from that of article 16, which obliges States
parties to guarantee the right to recognition as a person before the law. The fact that an
enforced disappearance has occurred in the State’s territory does not imply that the State
party has violated article 16 when the disappearance is not attributable to it, nor does it
a
b
c
14
See S.E. v. Argentina, communication No. 275/88, para. 5.3.
See Kazantzis v. Cyprus, communication No. 972/2001, para. 6.6.
See general comment No. 31 (2004) on the nature of the general legal obligation imposed on States
parties to the Covenant, para. 8.
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