Case Law: Enforced Disappearances

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A. The Human Rights Committee:

Bleier v. Uruguay
Communication No. 30/1978, final views of 29 March 1982

Full Decision

It was the first communication under the Optional Protocol relating to disappearance case. It was submitted by the daughter and wife of the victim, Eduardo Bleier. They alleged that Mr. Bleier, a former member of the banned Communist Party, had been arrested by the Uruguayan authorities without a court order in October 1975 and was being held incommunicado at an unknown place of detention. Although the authorities did not acknowledge his arrest, his detention was indirectly confirmed because his name was on a list of prisoners read out once a week at an army unit in Montevideo where his family delivered clothing for him and received his dirty clothing. A number of former detainees who had been held together with Mr. Bleier gave independent but similar accounts of the particularly cruel torture to which he had been subjected.

The Committee found breaches of articles 7, 9 and 10.1 of the Covenant and "serious reasons to believe that the ultimate violation of article 6 has been perpetrated by the Uruguayan authorities". It argued that it is difficult to categorise "disappearance" as a violation of the right to life because: In some cases there may be reason to believe that the person is still alive; in many cases there is no clear evidence of the disappeared person's death; it is improper for international bodies to presume a persons death, for it has great implications for the responsibility.

As to the violation of Article 7, in this case there were reports of eyewitnesses that E. Bleier had been subjected to severe torture while in detention. (undoubtedly physical torture). It is not clear whether the invocation of the articles refers to that aspect of the treatment or to the "disappearance" as such.

As a remedy, it urged the Government of Uruguay "to take effective steps (i) to establish what has happened to Eduardo Bleier since October 1975; to bring to justice any persons found to be responsible for his death, disappearance or ill-treatment; and to pay compensation to him or his family for any injury which he has suffered; and (ii) to ensure that similar violations do not occur in the future."

 
Quinteros Almeida v. Uruguay
Communication No. 107/1981, final views of 21 July 1983
Full Decision

The complaint was submitted by the mother of the victim, on behalf of her daughter, Ms. Elena Quinteros Almeida, and herself. The applicant stated that her daughter had been arrested at her home on 24 June 1976. Four days later, while she was being held completely incommunicado, she was taken by military personnel to a place in the city of Montevideo near the Embassy of Venezuela. Ms. Quinteros succeeded in jumping over a wall and landed inside the Embassy grounds. The military personnel, however, after striking the Secretary of the Embassy and other staff members, dragged her off the premises of the Embassy. Since that date, her mother had never been able to obtain from the authorities any official information about her daughter's whereabouts and her detention had never been officially admitted. Venezuela suspended its diplomatic relations with Uruguay.

The Committee again found violations of articles 7, 9 and 10.1 of the Covenant, in relation to Ms Quinteros. In addition, the decision gives formal recognition that the close family of the victim of a "disappearance" is subjected to torture or other ill-treatment, the Committee stated that it understood "the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. 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 article 7." The applicant did not invoke art.6 and the Committee did not refer to it. As a matter of facts, there was evidence of unofficial acknowledgement of the detention so that the Committee may well have felt that no right to life issue arose.

The remedies recommended were similar to those in the Bleier case and also included the obligation of the authorities of Uruguay to secure the release of the victim.

Sanjuan Arevalo v. Colombia
Communication No. 181/1984, final views of 3 November 1989
Full Decision

The Sanjuan brothers disappeared in March 1982, after their arrest by the Colombian police force, the Committee explicitly referred to its general comment 6/16 and concluded that the rights to life, liberty and security of the person had not been effectively protected by the State of Colombia.

Mojica v. Dominican Republic
Communication No. 449/1991, final views of 15 July 1994

Full Decision

Mojica was the son of a well-known labour leader in the Dominican Republic. He had received death threats from military officers before he disappeared in Santo Domingo in May 1990. The Committee again referred to general comment 6/16 and found violations of articles 6, 7 and 9 of the Covenant. With respect to article 7, the Committee added the following statement: "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." However, whether disappearances themselves are a form of torture, the Committee does not say so explicitly.

Here (1) the government did not deny the disappearance of the victim in hands of individuals belonging to the security forces (2) and military officers had previously threatened the victim's life.

Bautista de Arellana v. Colombia
Communication No. 563/1993, final views of 27 October 1995
Full Decision

Nydia Bautista, a member of the 19 April Movement in Colombia, was abducted from her family home in Bogotá in August 1987. According to eyewitnesses, she was pulled into a Suzuki jeep by eight men, who were armed but dressed as civilians. An eyewitness identified the jeep's licence plate. Ms. Bautista's abduction was immediately brought to the attention of the authorities, and as a result of pressure by the family, as well as of the relevant judicial investigations, her body was exhumed and identified, and the persons responsible for the disappearance were found. In 1995, an administrative tribunal granted the claim for compensation filed by her family, and disciplinary sanctions were pronounced against two military intelligence officers. The Committee found violations of articles 6, 7 and 9 of the Covenant. With respect to the right to an effective remedy, it added, however, that in the event of particularly serious human rights violations "purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies" within the meaning of article 2.3 of the Covenant.

Laureano v. Perú
Communication No. 540/1993, final views of 16 April 1996
Full Decision

Ana Rosario Celis Laureano, a Peruvian girl, was abducted from her house by men wearing military uniforms on 13 August 1992. Her grandfather, who submitted the communication, never succeeded in obtaining any information on her fate and whereabouts.

The Committee found that Ana Laureano's right to life had not been effectively protected. The Committee also concluded that there had been violations of articles 7 and 9 of the Covenant. The Committee found that the disappearance in itself violates the prohibition of cruel and inhuman treatment, however, it is not expressly condemned as torture. Furthermore, regarding the victim's status as a minor, the Committee concluded that Ms. Laureano had not benefited from the special measures of protection she was entitled to on account of her status, and that there had been a violation of the right of every child under Article 24.1 of the Covenant to special measures of protection, including the recognition of the child's legal personality. With respect to the State obligation to provide victims with an effective remedy (under Article 2.3), the Committee urged the State party to open a proper investigation into the disappearance of Ms. Laureano and her fate, to provide for appropriate compensation to the victim and her family, and to bring to justice those responsible for her disappearance, notwithstanding any domestic amnesty legislation to the contrary.

Monaco and Vicario v. Argentina
Communication No. 400/1990, final views of 3 April 1995
Full Decision

In February 1977, Ximena Vicario (a nine-month-old girl) and her parents were taken to the headquarters of the Federal Police in Buenos Aires and disappeared. Whereas the fate and whereabouts of her parents were never established, she had been adopted by a nurse. Her grandmother found her whereabouts in 1984 and after various legal disputes and extremely slow court proceedings, the grandmother was only granted "provisional" guardianship of the child in 1989. In 1993, the legal identity of the child was officially recognized, and, in 1994 (when she had reached the age of 18), the nullity of the adoption by the nurse was finally confirmed. As a remedy, the Committee explicitly encouraged the Government of Argentina "to persevere in its efforts to investigate the disappearance of children, determine their true identity, issue to them identity papers and passports under their real names, and grant appropriate redress to them and their families in an expeditious manner".

The Human Rights Committee in its concluding observations on the report of Algeria (CCPR/C/79/Add.95, of 18 August 1998), stressed its grave concern "at the number of disappearances and at the failure of the State to respond adequately, or indeed at all, to such serious violations. Disappearances may involve the right to life consecrated under article 6 of the Covenant, and where the disappeared individuals are still alive and are kept incommunicado, disappearances may involve the right guaranteed under article 16 of the Covenant which provides that every individual shall have the right to recognition everywhere as a person before the law. In this situation these individuals are also deprived of their capacity to exercise all the other rights, without any recourse, recognized under the Covenant. Furthermore, disappearances violate article 7 with regard to the relatives of the disappeared."

El- Megreisi v. Libya
(Report of the Human Rights Committee, Vol.II, GAOR, 49th Session, Suplement No. 40 (1994), Annex IX T).
Full Decision

Mohammed Bashir El-Megreisi was detained by Lyban security police in Jannuary 1989. The authorities denied the detention and the family learned that he was alive only when his wife was allowed to see him in April 1992. Since that time he had continued to be held, at an unknown place of detention. The Committee found that the prolonged incommunicado detention in an unknown location constitutes a violation of the right to freedom from torture and cruel and inhuman treatment. In this case, what appears to be a disappearance is described as torture.

B. European Commission/Court of Human Rights

Kurt v. Turkey
Application No. 24276/94, Judgment of 25 May 1998
Full Decision

The application was submitted by the mother of Mr. Üzeyir Kurt on her own behalf and on behalf of her son. Kurt had been surrounded in the Kurdish village of Agilli by members of Turkish security forces in November 1993 and taken into custody, where he subsequently disappeared.

The Court found a violation of article 5, but held that it was not necessary to decide on the alleged violation of articles 2 and 3 of the European Convention. The Court merely considered that there was insufficient evidence to substantiate that the applicant's son had met his death while in custody, or that there was a practice of violation of the right to life (art.2). The Court stated that it was "not appropriate to find a violation" of art.3 (torture and inhuman treatment) because there were no specific evidence of ill-treatment and no evidence of officially tolerated practice of disappearances and associated ill-treatment. (COMM. The Court missed the point for the existence of a systematic practice doesn't have to do anything with the suffering END COMM.).

It found, however, that the his mother was a victim of article 3, considering that she had been left with the anguish of knowing that her son had been detained, with a complete absence of official information as to his subsequent fate over a prolonged period of time. In view of the lack of any meaningful investigation by the State, the Court also established a violation of article 13. In addition, the Court held that Turkey had not complied with its obligation under article 25 not to hinder in any way the effective exercise of the right of individual petition to the European Commission of Human Rights. As a remedy, Turkey was ordered to pay the applicant 10,000 pounds sterling by way of compensation for non-pecuniary damage, and another 15,000 pounds sterling in respect of her son.

Kaya v. Turkey
Application No. 22535/93, Judgment of 28 March 2000

Full Decision

The case was submitted on 13 August 1993 by Dr. Kaya's brother. Dr. Hasan Kaya, a doctor, was known to have treated PKK members and had received death threats before his disappearance. On 21 February 1993, he was asked by unidentified men to visit a wounded PKK member hidden outside town. Mr. Kaya left and was not seen again. About one week later, their dead body was found more than 100 kilometres away.

Although the Court concluded that there was insufficient evidence to support a finding beyond reasonable doubt that State officials had carried out the disappearance and killing of Dr. Kaya, it held that the Turkish authorities had "failed to take reasonable measures available to them to prevent a real risk to the life of Hasan Kaya". Both failures of the Turkish authorities were considered as a violation of article 2 of the Convention. Since there was some forensic evidence that the victim had been ill-treated after his disappearance and prior to his death, the Court also found a violation of article 3 by the State in this case for not having taken adequate measures to protect him against inhuman and degrading treatment. The Court relied on the obligation of States under article 1 to secure to everyone the rights and freedoms defined in the Convention. In addition, the investigation carried out into the disappearance and killing "has not been conducted with the diligence and determination necessary for there be any realistic prospect of the identification and apprehension of the perpetrators" the Court found a violation of article 13. Although no violation was found in respect of the applicant, he was also awarded 2,500 pounds sterling compensation for non-pecuniary damage, "which cannot be compensated solely by the findings of violations"

Tas v. Turkey
Application No. 24396/94, Judgment of 14 November 2000
Full Decision

The application was submitted on 7 June 1994 by the victim's father. His son, a member of the PKK, was shot in the knee and taken into custody by Turkish security forces on 14 October 1993. He subsequently disappeared and the Turkish authorities claimed that he had escaped from the security forces on 9 November 1993. This was not considered by the Commission and the Court as plausible.

The Court found violations of article 2 of the Convention on the grounds that "Mushin Tas must be presumed dead following his detention by the security forces", which engages the responsibility of the State for his death, and that "the investigation carried out into the disappearance of the applicant's son was neither prompt, adequate or effective and therefore discloses a breach of the State's procedural obligation to protect the right to life". In the absence of evidence of torture or ill-treatment during his disappearance, the Court found no violation of article 3, nor did it consider it appropriate to make any finding under that provision concerning the effect the incommunicado detention might have had on Muhsin Tas. It found, however, a violation of article 3 in respect of the suffering of the father, but emphasized at the same time that the Kurt case did not, however, establish any general principle that a family member of a "disappeared person" was thereby a victim of treatment contrary to article 3". It also established a particularly grave violation of article 5 and a violation of article 13.

Izzet Çakiki against Turkey
Report of the Commission, adopted on 12 March 1998
Full Decision

The Commission decided that there was a violation of art.2, it held that the fact that the unacknowledged detention occurred more than 4 years ago and that his identity card has been produced (according to the authorities he got killed in a clash), "In these circumstances, the Commission finds that there is a very strong possibility that Ahmed is no longer alive. Since this probability arises in the context of an unacknowledged detention and findings of ill-treatment, the Commission finds that the situation discloses a failure to comply with the obligation under art.2.".

Further, the Commission "concluded that the evidence was sufficient to reach the required standard of proof beyond reasonable doubt and discloses treatment which is of a severity to constitute torture contrary to art.3 of the Convention" (In this case there was an oral testimony confirming that Ahmet was subjected to ill-treatment including beatings, electric shocks and an injury to his head and ribs. However there was no evidence or medical report on the ill-treatment as it was inflicted but according to the Commission, "further evidence of that kind is unlike and to require it would render the protection of art.3 illusory and theoretical."

Cyprus v. Turkey
Application No. 25781/94, Judgment of 10 May 2001
Full Decision

The European Commission first dealt with disappearances in respect of Greek Cypriots missing in the wake of the military action by Turkey in July 1974. In its application the Government of Cyprus claimed that "about 1,491 Greek-Cypriots were still missing 20 years after the cessation of hostilities, these persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State". The Turkish authorities denied any knowledge of them despite evidences of the contrary.

The Court found that "there has been a continuing violation of article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances". However, in the absence of evidence that any of the missing persons were killed in circumstances engaging the respondent State's liability, the Court found no violation of article 2 in that respect. It also established a continuing violation of article 5. As to the relatives of the missing persons, the Court found a violation of article 3, considering that "the silence of the authorities of the respondent State in the face of the real concerns of the relatives attained a level of severity which could only be categorized as inhuman treatment".

C. The Inter-American Court of Human Rights:

Velásquez Rodríguez v. Honduras
Petition No. 7920/1981, Judgment of 29 July 1988

Full Decision

Manfredo Velásquez Rodríguez, a Honduran student, had been kidnapped in September 1981 by armed men in civilian clothes driving a vehicle without number plates. It was established that either the kidnappers were connected directly to the Honduran Armed Forces or indirectly under their direction. In order to establish State responsibility, the Court relied on circumstantial and presumptive evidence, which it found especially important in cases of alleged disappearance, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the fate and whereabouts of the victim. The Court referred to a systematic practice of disappearances in Honduras in the early 1980s and to the obligation of States parties under article 1.1 of the American Convention to ensure human rights. This implies the duty of States to organize the governmental apparatus so that they are capable of judicially ensuring the free and full enjoyment of human rights. As a consequence, States must prevent, investigate and punish any violation of the rights recognized in the Convention. Even if it had not been fully proven that Mr. Velásquez had been kidnapped and killed by State agents, the failure of the State apparatus to investigate his disappearance was a failure by Honduras to fulfil its duty under article 1.1 of the Convention.

The Court, therefore, found the Government responsible for the disappearance, established a violation of articles 4, 5 and 7 of the Convention, read in conjunction with article 1.1, and ordered Honduras to pay fair compensation to the next-of kin of the victim.

Thus, the existence of a systematic practice of disappearances was part of the context for a finding that there was reasonable presumption of the persons having been killed. Further, it seems that the Court approach is that where there is evidence that the disappearance has ended in murder, then the right to life has clearly been violated. In other cases, the way forward may be in recognising that the practice of making people disappear is a threat to life.

As to the violation of Article 5 it held that "the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment..."

Godinez Cruz v. Honduras
Petition No 8097/1982, Judgment of 20 January 1989

Full Decision

The Court affirmed and further developed this jurisprudence in a number of cases. In the Godinez Cruz against Honduras case it found the same violations as in the Velásquez Rodriguez case.

Caballero-Delgado and Santana v. Colombia, Petition No. 10.319/1989, Judgment of 8 December
Full Decision

The Court found found violations of articles 4 and 7 of the Convention, read in conjunction with article 1.1, but not a violation of the right to humane treatment under article 5, since there was insufficient proof that those detained were tortured or subjected to inhumane treatment. The isolation and deprivation of the communication was not prolonged in the sense of the other cases. In the latter case the Court, in a separate judgment pursuant to article 63 of the Convention, decided that the State of Colombia must pay US dollars 89,500 to the relatives of the victims as compensation and was obliged to continue its efforts to locate and identify the remains of the victims and deliver them to their next of kin (Caballero-Delgado and Santana v. Colombia, Judgment on reparations of 29 January1997).

Blake v. Guatemala
Petition No. 11.219/1993, Judgment of 24 January

Full Decision

Nicholas Blake, a United States journalist, was abducted by a Civil Self-Defence Patrol in March 1985 and killed shortly thereafter. His fate, however, remained unknown for seven years and was only discovered after intensive investigations by his family, with the assistance of the United States Embassy and United States forensic experts, in 1992.

Since Guatemala recognized the contentious jurisdiction of the Court only in March 1987, i.e. two years after the abduction and assumed assassination of the victim, the Court declared itself incompetent ratione temporis in relation to the alleged violations of articles 4 and 7 of the Convention. It found, however, violations of articles 5 and 8 in relation to the relatives of Mr. Blake and ordered the State of Guatemala, in addition to paying compensation, to investigate the acts denounced and punish the persons responsible for the disappearance and death of Mr. Blake. In arriving at this conclusion, the Court reaffirmed that "forced or involuntary disappearance is one of the most serious and cruel human rights violations" and "constitutes a multiple and continuing violation of a number of rights protected by the Convention". The Court ruled that the right to a fair trial contained in article 8 of the Convention "recognizes the right of Mr. Nicholas Blake's relatives to have his disappearance and death effectively investigated by the Guatemalan authorities; to have those responsible prosecuted for committing said unlawful acts; to have the relevant punishment, where appropriate, meted out; and to be compensated for the damages and injuries they sustained". With respect to finding the family victim of a violation of article 5, the Court stressed that "the circumstances of such disappearance generate suffering and anguish, in addition to a sense of insecurity, frustration and impotence in the face of the public authorities´ failure to investigate".

Villigran Morales and Alcase v. Guatemala
Petition No. 11.383/1994, Judgment of 19 November 1999
Full Decision

Based on the allegations of abduction, torture and murder of five youths (three of whom were minors when they were killed) and of the failure of the respondent State to deal appropriately with the said violations and provide the victim's families with access to justice, the Court found violations of articles 1.1, 4, 5.1, 7 and 19 to the detriment of the victims, as well as of articles 5.2, 8 and 25 to the detriment both of the victims and of their immediate next of kin. Regarding the right to judicial protection, the Court established that article 25 "assigns duties of protection to the States Parties through their domestic legislation, from which it is clear that the State has the obligation to design and embody in legislation an effective recourse, and also to ensure the due application of the said recourse by its judicial authorities". Furthermore, regarding the allegations of torture and considering that the Inter-American Convention to prevent and punish torture developed the principles contained in Article 5 of the American Convention on Human Rights in greater detail and therefore constituted an auxiliary instrument to the Convention, the Court concluded that Guatemala had failed to comply with its obligations to prevent and punish torture in the terms of articles 1, 6 and 8 of the American Convention to prevent and punish torture, to the detriment of the victims.

Bamaca Velásquez v. Guatemala
Petition No 11.129/1993, Judgment of 25 November 2000
Full Decision

Efrain Bamaca Velasquez, a combatant with the Guatemalan National Revolutionary Union (URNG) known as "Comandante Everardo", disappeared in March 1992, following a clash between the army and guerrilla forces in the village of Montufar, in the eastern part of Guatemala. He was captured by members of the Guatemalan Army, secretly detained in military premises and tortured.

The Court found breaches of articles 1.1, 4 and 7 to the detriment of Bámaca Velásquez, as well as of articles 5.1, 5.2, 8 and 25 to the detriment of both Bámaca Velásquez and his relatives. Dealing however for the first time with the right to juridical personality under article 3 in a disappearance case, the Court recalled that the Inter-American Convention on Forced Disappearance of Persons "does not refer expressly to this right among the elements that typify the complex crime of forced disappearance of persons" and thus deemed that this right was not violated. In connection with the violation of the "right to truth of the next of kin of the victim and of the society as a whole" though recognizing that "it is undeniable that this situation has prevented Bámaca Velásquez's wife and the victim's next of kin from knowing the truth about what happened to him", the Court ruled that in the circumstances of the instant case, "the right to truth is subsumed in the right of the victim or his next of kin to obtain clarification of the facts relating to the violations and the corresponding responsibilities from the competent State organs, through the investigation and prosecution established in articles 8 and 25 of the nvention". Furthermore, the Court concluded that Guatemala had failed to comply with its obligations to prevent and punish torture in the terms of articles 1, 2, 6 and 8 of the Inter-American Convention to prevent and punish torture, to the detriment of Efrain Bámaca Velásquez.

Durand and Ugarte v. Perú
Petition Nos. 10.009 and 10.078/1987, Judgment of 16 August 2000
Full Decision

The case concerns the events following the rebellion at three prisons in Lima in June 1986. According to official figures, in the military operations against the prisoners in the so-called Blue Pavilion, 111 persons died, 34 surrendered and 7 inmates, including Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, disappeared.

The Court found violations of articles 1.1, 2, 4, 7, 8 and 25 in relation to the disappeared persons, but denied a violation of the right to humane treatment under article 5, since it had not been proven that the victims had been subjected to mistreatment or that their dignity had been damaged by the Peruvian authorities while they were detained. Regarding the implementation of article 63(1), the Court emphasized "the right of the victim's relatives to know about their fate and the whereabouts of their mortal remains" and decided in particular that the State was compelled "to make every possible effort to locate and identify the victims' mortal remains and deliver them to their relatives, as well as to investigate the facts and process and sanction the liable parties".

Trujillo Oroza v. Bolivia
Judgment of 26 January 2000
Full Decision

José Carlos Trujillo Oroza a Bolivian student was arrested, without a court order, in December 1971 and interned at the "El Pari prison". Although his mother had managed to visit him daily at the prison, he had been subjected to physical torture and disappeared in February 1972. His mother filed various petitions with the Bolivian authorities, but it was only in January 1999 that an official judicial investigation was initiated. In September 1992, she filed a complaint with the Inter-American Commission. At the public hearing on 25 January 2000, Bolivia formally acknowledged its responsibility for the facts as alleged by the mother and presented by the Commission. The Government also offered apologies to the family, stated that it was modifying its domestic legislation so as to avoid the recurrence of such events and so that the disappearance of persons would be punished, and offered the family compensation.

The Court found violations of articles 1.1, 3, 4 and 7 of the American Convention on Human Rights to the detriment of José Carlos Trujillo Oroza and of articles 5.1 and 5.2, 8.1 and 25 to the detriment of both the victim and his next of kin.

Caracazo v. Venezuela
Judgment of 11 November 1999
Full Decision

D. The Human Rights Chamber for Bosnia and Herzegovina:

During the war between 1992 and 1995, more than 20,000 persons were reported missing in Bosnia and Herzegovina, and many of these missing persons can be considered as cases of enforced disappearances in the narrow meaning of this term since the practice of disappearances was part of the strategy of "ethnic cleansing" operations.

After the entry into force of the Dayton Peace Agreement, family members of disappeared persons submitted applications to the Human Rights Chamber which, however, declared itself in most cases incompetent ratione temporis to consider disappearances which occurred before 14 December 1995. Only if there is reliable evidence that a disappeared person might still have been held incommunicado after this date is the Chamber competent to consider this continuing human rights violation.

Palic v. Republika Srpska
Case No. CH/99/3196, Decision on admissibility and merits of 11 January 2001
Full Decision

In July 1995, Mr. Avdo Palic Colonel of the army of Bosnia and Herzegovina and commander of the detachment defending the Muslim enclave of Zepa against the Bosnian Serb forces, was negotiating with the Bosnian Serb army for the peaceful evacuation of the civilian population. During the talks, he was forcibly taken away by armed Serb soldiers in front of United Nations soldiers and monitors and taken in the direction of General Ratko Mladic´s command position. While the authorities of the Republika Srpska claimed to have no knowledge of the arrest and detention of Colonel Palic, the Chamber heard evidence that he was seen in a military prison in Bijeljina up to September 1995, and that negotiations for his release were undertaken by high-level officials in spring 1996, albeit without success. The application was submitted by his wife on 18 November 1999 in her own right and on behalf of her husband.

The Chamber found violations of articles 2, 3 and 5 of the European Convention in respect of Colonel Palic and of articles 3 and 8 of the Convention in respect of his wife. In finding a violation of article 3, the Chamber referred to the case law of the United Nations Human Rights Committee that prolonged incommunicado detention constitutes inhuman and degrading treatment per se. Similarly, it made reference to relevant decisions of the Human Rights Committee, the Inter-American Court and the European Court of Human Rights before establishing a violation in respect of the applicant. The finding of a violation of the right of Ms. Palic to respect for her family life is based on the argument that arbitrarily withholding information from her concerning the fate of her husband, including information concerning her husband's body, if he is no longer alive, constitutes a violation of her right to know about the fate of her husband deriving from article 8.

The Chamber ordered the Republika Srpska "to carry out immediately a full investigation capable of exploring all the facts regarding Colonel Palic´s fate from the day when he was forcibly taken away, with a view to bringing the perpetrators to justice; to release Colonel Palic, if still alive or, otherwise, to make available his mortal remains to Ms. Palic; and to make all information and findings relating to the fate and whereabouts of Colonel Palic known to Ms. Palic". Moreover, the Chamber ordered the Republika Srpska to pay Ms. Palic DM 15,000, by way of compensation for her mental suffering, and in respect of her husband, DM 50,000 by way of compensation for non-pecuniary damage.

Unkovic v. Federation of Bosnia and Herzegovina
Case No. CH/99/2150, Decision on admissibility and merits of 9 November 2001
Full Decision

The applicant lost contact with his daughter, her husband and their two sons, all Bosnian Serbs, in the summer of 1992 when the whole family was abducted from their home in Konjic by a group of armed men in uniform, taken to the outskirts of the town and killed with firearms. At that time, Konjic was under the control of the army of the Republic of Bosnia and Herzegovina. The applicant heard rumours that his daughter's family had been killed, but he did not receive any official information to confirm such rumours. In January 1999, he learned from newspapers that, already in 1992, two men had been arrested for killing his daughter's family. He submitted the application on his own behalf only and complained that the authorities had wilfully withheld information from him between 1992 and 1999 concerning his daughter's fate and that that had caused him mental suffering, pain and sorrow.

The Chamber found also in this case that "the apprehension, distress and sorrow caused to the applicant as a result of the respondent Party failing to investigate and pursue the fate of the Golubovic family in a timely manner constitutes inhuman and degrading treatment in violation of his right protected by article 3 of the Convention", and ordered the Federation to pay him DM 10,000, by way of non-pecuniary compensation for his mental suffering.

See Also: Josip, Bozana and Tomislav MATANOVIC against Republika Srpska (CASE No. CH/96/1)
Admissibility: PDF
Merits: PDF

Ratko GRGIC against the Republika Srpska (CASE No. CH/96/15).
Admissibility: PDF
Merits: PDF

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