CCPR/C/113/D/2022/2011
provide a sufficient basis for finding a violation of article 16, read in conjunction with
article 2 (3), of the Covenant. d
5.
I would like to emphasize that this conclusion is fully in line with the legal
qualification of Mr. Hamulić’s disappearance. The Committee explains in paragraph 9.3 of
its Views that the term “enforced disappearance” may be used, in an extended sense, to
refer to disappearances initiated by forces independent of or hostile to the State party, in
addition to disappearances attributable to the State party. It would be erroneous to conclude
from this that any such disappearance automatically renders a State responsible for a
violation of article 16, irrespective of attribution and without a further basis for connecting
the State party to the disappearance. The fact that an atrocity inflicted upon a victim can be
described as an enforced disappearance does not automatically render a State party
responsible under article 16 or generate additional obligations to provide effective remedies
under article 2 (3) of the Covenant.
6.
For the reasons outlined above, I would have preferred to explain that the claim
under article 16, read in conjunction with article 2 (3), is not substantiated. But I recognize
that the Committee defensibly chose not to reach this issue in this and prior cases. At any
rate, I would like to emphasize that the Committee was not motivated by considerations of
judicial economy, nor did it ignore the very serious nature of enforced disappearance as one
of the most heinous human rights violations and the need for the effective protection for
victims of enforced disappearance and their families. It is in recognition of the imperative
need to take effective measures to respond to any such crime committed in the territory of a
State that the Committee found a violation of articles 6, 7 and 9, read in conjunction with
article 2 (3), of the Covenant, with regard to Mr. Hamulić, and of article 7, read alone and
in conjunction with article 2 (3), with regard to the authors. The Committee’s holding
therefore shows the highest respect for the suffering and most serious anguish imposed on
Mr. Hamulić and his relatives.
7.
As I have explained above, the Committee’s conclusions, which focus on articles 6,
7 and 9, do not generally deny victims of enforced disappearance the protection of article
16, nor do the Committee’s Views negate the significant value of the right to recognition as
a person before the law. They are based on a careful analysis of the Covenant, in particular
article 16, which considers the particularities of the case and gives due regard to the
question of attribution. It is the role of the Committee to autonomously examine each
communication on the basis of the Covenant and to determine whether the factual
circumstances are appropriate for finding a violation of the Covenant by a State party rather
than applying generalized notions or making routine findings on the basis of a notion that is
not enshrined in the Covenant.e On the basis of this understanding, the Committee has
found a violation of the right to recognition as a person before the law in several other cases
of enforced disappearance which were actually conducted by the respective State
authorities and I am confident that it will continue to do so when such claims are
substantiated.
d
e
See Fatima Rizvanović and Ruvejda Rizvanović v. Bosnia and Herzegovina, communication No.
1997/2010, appendix.
See Tahar Mohamed Aboufaied v. Libya, communication No. 1782/2008, appendix II.
15
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