A/56/156
of the disappeared. The Special Rapporteur notes in the
case of El-Megreisi v. Libyan Arab Jamahiriya that the
Committee concluded “... from the information before
it, that Mohammed El-Megreisi was detained
incommunicado for more than three years, until April
1992, when he was allowed a visit by his wife, and that
after that date he has again been detained
incommunicado and in a secret location. Having regard
to these facts, the Committee finds that Mr.
Mohammed Bashir El-Megreisi, by being subjected to
prolonged incommunicado detention in an unknown
location, is the victim of torture and cruel and inhuman
treatment, in violation of articles 7 and 10, paragraph
1, of the Covenant.”8 While the Special Rapporteur
notes that the term “disappearance” was not used by
the Committee, presumably because the fact of
detention and its substantial duration had been
confirmed before the case even reached the Committee,
he believes that what appears to have been enforced
disappearance, is justifiably described by the
Committee as torture.9
12. The Special Rapporteur also notes that, in
article 1, the Declaration states that any act of enforced
disappearance inflicts severe suffering on the victims
and their families and in the fifth preambular paragraph
refers to the anguish and sorrows caused by those
disappearances. The Special Rapporteur would like to
emphasize
that
the
working
definition
of
“disappearance” refers also to the refusal to disclose
the fate or whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of their
liberty.10 This is an intentional act directly affecting
close family members. Being fully aware they are
hurling family members into a turmoil of uncertainty,
fear and anguish regarding the fate of their loved
one(s), public officials are said to maliciously lie to the
family, with a view to punishing or intimidating them
and others.11
13. The Special Rapporteur would like to draw the
attention of Governments to the views of the Human
Rights Committee in Maria del Carmen Almeida de
Quinteros, on behalf of her daughter, Elena Quinteros
Almeida, and on her own behalf v. Uruguay — namely,
that with regard to the violations alleged by the author
on her own behalf, the Committee understands the
anguish and uncertainty concerning the fate and
whereabouts of her daughter. The author has the right
to know what has happened to her daughter. In these
respects, she too is a victim of the violations of the
Covenant suffered by her daughter, in particular, of
article 7.
14. The Special Rapporteur notes that, according to
both Committees, the rationale of duration has often
been considered one of the principal elements in
determining the severity of ill-treatment.12 While
reaffirming that enforced disappearances are unlawful
under international law and cause much anguish,
whatever their duration, the Special Rapporteur
believes that to make someone disappear is a form of
prohibited torture or ill-treatment, clearly as regards
the relatives of the disappeared person and arguably in
respect of the disappeared person or him/herself.13 He
further believes that prolonged incommunicado
detention in a secret place may amount to torture as
described in article 1 of the Convention against
Torture. The suffering endured by the disappeared
persons, who are isolated from the outside world and
denied any recourse to the protection of the law, and by
their relatives doubtless increases as time goes by.
15. In the light of the above, the Special Rapporteur
welcomes the decision of the Commission on Human
Rights in its resolution 2001/46 (23 April 2001),
entitled “Question of enforced or involuntary
disappearances”, to “appoint an independent expert to
examine the existing international criminal and human
rights framework for the protection of persons from
enforced or involuntary disappearance, taking into
account relevant legal instruments at the international
and regional levels, intergovernmental arrangements on
judicial cooperation, the draft international convention
on the protection of all persons from enforced
disappearance
(E/CN.4/Sub.2/1998/19,
annex)
transmitted by the Sub-Commission in its resolution
1998/25 of 26 August 1998, and also comments of
States and intergovernmental and non-governmental
organizations, with a view to identifying any gaps in
order to ensure full protection from enforced or
involuntary disappearance ...”.
16. Finally, the Special Rapporteur would like to
indicate his intention to continue to refrain from
dealing with cases of disappearances so as to avoid
duplication with the Working Group on Enforced or
Involuntary Disappearances. He nevertheless hopes to
be in a position to send joint communications with the
Working Group, especially when fears have been
expressed that the persons concerned may be at risk of
torture and further disappearance in view of the
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