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Links between torture and enforced disappearances

October 2013

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This text sets out FIACAT’s reasons for launching a campaign for ratification of the Convention for the Protection of All Persons from Enforced Disappearance, with the help of the ACATs, whose aim is the abolition of torture.

Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance: "’enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."

Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: "the term ’torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, (...) intimidating or coercing him or a third person (...) when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Since the above two definitions overlap, it is easy to show that the two crimes are related.
Enforced disappearance entails torture not only of the disappeared persons but also of their families (I). Moreover, the procedural safeguards which are the right of every detainee are not observed in either case (II) and the public authorities are often involved in these crimes (III).

I) Enforced disappearance entails torture …

International jurisprudence regards disappearance as a form of torture in itself. It recognises that torture is perpetrated not only on the disappeared person but also on his family.

1) … of the disappeared person

Shortly after its establishment in 1980, the United Nations Working Group on Enforced or Involuntary Disappearances stressed that: "The very fact of being detained as a disappeared person, isolated from one’s family for a long period (...) has been presented to the Group as torture" [1].

The Inter-American Court of Human Rights [2] has also held that disappearance is in itself a form of torture of the disappeared person: "156. … prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment (…). Such treatment therefore violates Article 5 of the [Inter-American Human Rights] Convention, which recognises the integrity of the person by providing that (…) no person shall be subjected to torture."

2) … of the family of the disappeared person

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [3] states that: "The term "victim" also includes, where appropriate, the immediate family or dependants of the direct victim (…)."

Those close to victims of enforced disappearance may thus be regarded as victims of torture, at least psychological torture. This seems to be the view taken in all the international jurisprudence.

The United Nations Human Rights Committee has often stated [4] that disappearance is a violation of Article 7 of the International Covenant on Civil and Political Rights [5] as regards the families of disappeared persons.

In its judgment Kurt v. Turkey of 25 May 1998 concerning a mother whose son had disappeared, the European Court of Human Rights stated that: "The uncertainty, doubt and apprehension suffered by the applicant over a prolonged and continuing period of time caused her severe mental distress and anguish. (…). Having regard to (...) the fact that the complainant was the mother of the victim of a human rights violation", the Court found that she was "herself the victim of the authorities’ complacency in the face of her anguish and distress" and that the respondent State was in breach of Article 3 [6] in respect of Mrs Kurt.

In many reports since 1977 on the human rights situation in the western hemisphere, the Inter-American Commission on Human Rights has regarded enforced disappearance as a form of torture of the victims’ families [7].

II) Procedural safeguards not observed in either case

The Committee against Torture [8] requires States to provide a number of safeguards for detained persons: "13. Such guarantees include, inter alia, maintaining an official register of detainees, the right of detainees to be informed of their rights, the right promptly to receive independent legal assistance, independent medical assistance, and to contact relatives, (...) the availability (...) of judicial and other remedies that will allow them to have their complaints promptly and impartially examined, to defend their rights, and to challenge the legality of their detention or treatment."

A person who is the victim of the crime of enforced disappearance cannot avail himself of any of the safeguards prescribed by the Committee against Torture while he is detained, since as stated in the definition set out in Article 2 of the Convention for the Protection of All Persons from Enforced Disappearance he is placed "outside the protection of the law". This is thus yet another point in common between the crime of torture and that of enforced disappearance.

III) Public authorities involved in both cases

Torture is often practised in closed or partly closed locations, such as the premises of the police or the intelligence service. The victims are sometimes taken by the police to secret locations from which little or no information emerges [9]. As regards enforced disappearance, when the victims’ families try to find out where they are, the authorities either ignore their appeals or open an enquiry which they know will lead nowhere or which results in the whitewashing of the suspects.

In either event, the public authorities may be involved, and this is a further point in common between enforced disappearance and torture.

Footnotes

[1] UN Doc. E/CN.4/1983/14, para 131

[2] Inter-American Court of Human Rights, judgment of 29 July 1988, known as the "Velasquez Rodriguez" case

[3] Adopted by the UN General Assembly on 29 November 1985

[4] Communication 540/1993, Celis Laureano v. Peru - views 25 March 1996, para. 8.5 Communication 542/1993, Katombe L. Tshishimbi v. Zaire, views 26 March 1996, para. 5.5 Communication 440/1990, Youssef El-Megreisi v. the Libyan Arab Jamahiriya, para. 5.4 Communication 449/1991 Mojica v. Dominican Republic, para. 5.7.

[5] "No one shall be subjected to torture"

[6] of the European Convention on Human Rights: " No one shall be subjected to torture"

[7] Report on Argentina of 11 April 1980 : OAS Doc. OEA/Ser.L/V/II.49, page 53

[8] General Comment No 2 on the application of Article 2 of the Convention by the States parties, 24 January 2008

[9] In this respect, the Committee against Torture, in its General Comment No 2 on the application of Article 2 of the Convention by the States parties, 24 January 2008, observes that: "17. States parties are obligated to adopt effective measures to prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture as defined in the Convention."

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