CCPR/C/112/D/1966/2010
State party to bring to justice perpetrators of certain violations (notably torture and similar
cruel, inhuman and degrading treatment, summary and arbitrary killings and enforced
disappearances) could in and of itself give rise to a separate breach of the Covenant.
9.3
The authors do not allege that the State party was directly responsible for the
enforced disappearance of their husband and father. Indeed, the authors allege that the
disappearance was initiated in the State party’s territory by the armed forces of a foreign
State, which did not recognize the independence of Bosnia and Herzegovina. What
happened thereafter is uncertain and the authors allege that other paramilitary forces hostile
to the State party were active in the vicinity. The Committee observes that the term
“enforced disappearance” may be used in an extended sense, referring to disappearances
initiated by forces independent of or hostile to a State party, in addition to disappearances
attributable to a State party.16 The Committee also notes that the State party does not
contest the characterization of the events as an enforced disappearance.
9.4
The Committee notes the State party’s information that it has made considerable
efforts at the general level, in view of the more than 30,000 cases of enforced disappearance
that occurred during the conflict. Notably, the Constitutional Court has established that the
authorities are responsible for investigating the disappearance of the applicants’ relatives,
including Sejad Hero (see para. 2.10 above), and domestic mechanisms have been set up to
deal with enforced disappearances and other war crimes cases (see paragraph 4.2 above).
9.5
The Committee recalls its jurisprudence, according to which the obligation to
investigate allegations of enforced disappearances and to bring the culprits to justice is not
an obligation of result, but of means, and that it must be interpreted in a way which does
not impose an impossible or disproportionate burden on the authorities. 17 The Committee
further recognizes the particular difficulties that a State party may face in investigating
crimes that may have been committed on its territory by the hostile forces of a foreign
State. Therefore, while acknowledging the gravity of the disappearances and the suffering
of the authors, because the fate or whereabouts of their missing husband and father has not
yet been clarified and the culprits have not yet been brought to justice, that in itself is not
sufficient to find a breach of article 2, paragraph 3, of the Covenant in the particular
circumstances of the present communication
9.6
That being said, the authors claim that, at the time of the filing of their
communication, nearly 18 years after the initial detention of their missing husband and
father and more than 3 years after the judgement of the Constitutional Court, the
investigative authorities had not contacted them for information regarding the suspected
perpetrators of the disappearance of Sejad Hero. In February 2006, the Constitutional Court
held that the authorities of the State party had violated the rights of the authors by failing to
take effective measures to investigate the fate and whereabouts of their husband and father,
and in November 2006, it held that those authorities had failed to enforce its decision. The
State party describes it efforts to search for the remains of Sejad Hero, but does not identify
any steps taken to pursue the investigation by other means, such as interviewing witnesses.
The Committee further notes that the limited information that the family managed to obtain
16
17
Compare article 7, paragraph 2 (i), of the Rome Statute of the International Criminal Court (defining
enforced disappearance as including disappearances conducted by a political organization), with
articles 2 and 3 of the International Convention for the Protection of All Persons from Enforced
Disappearance (distinguishing between enforced disappearances conducted by States or by persons or
groups acting with their authorization, support or acquiescence, and similar acts conducted by persons
or groups acting without such authorization, support or acquiescence); and see communication
No. 1956/2010, Durić v. Bosnia and Herzegovina, Views adopted on 16 July 2014, para. 9.3.
See communication No. 1997/2010, Rizvanović v. Bosnia Herzegovina, Views adopted on 21 March
2014, para. 9.5.
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