Table of contents
27. The word "detained" would include a perpetrator who maintained an existing detention.
28. It is understood that under certain circumstances an arrest or detention may have been lawful.
5.1. The perpetrator arrested one or more persons; OR
P.2. Evidence of an arbitrary or illegal arrest.
5.2. The perpetrator detained one or more persons; OR
P.3. Evidence that the perpetrator detained one or more persons.
P.4. Evidence the perpetrator maintained an existing detention.
P.5. Evidence of detention in secret/clandestine jails.
5.3. The perpetrator abducted one or more persons.
P.6. Evidence that the perpetrator abducted one or more persons using force.
P.6.1. Evidence of force being used to take the victim out of his/her residence.
P.6.2. Evidence of picking up victims in public places using force.
P.7. Evidence that the perpetrator abducted one or more persons using his or her authority.
5.4. The perpetrator refused to acknowledge the arrest, detention or abduction; OR
P.8. Evidence of denying arrest.
P.9. Evidence of denying custody.
P.13. Evidence of refusing inspection of the places of detention.
P.14. Evidence of purposely providing false information.
Element
(a) Arrested, detained25,26 or abducted one or more persons; or
A. Evidentiary comment:
The actus reus of the crime is described in element 3(a) and (b). Only one of the acts described in element 3 suffices to establish the necessary actus reus. According to Georg Witschel and Wiebke Ruckert, "there is no need that the perpetrator [be] involved in both stages". (Georg Witschel and Wiebke Rückert in Roy S. Lee, The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, p. 101).
5.1. The perpetrator arrested one or more persons; OR
A. Evidentiary comment:
Footnote 26 recognises that even if the initial arrest may have been lawful, the situation may still amount to enforced disappearance. According to Georg Witschel and Wiebke Rückert, "a perpetrator cannot exonerate him/herself simply by arguing that the initial arrest was lawful, if the elements of enforced disappearance are met". (in Roy S. Lee, The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, p. 101).
P.2. Evidence of an arbitrary or illegal arrest.
A. Legal source/authority and evidence:
?i?ek v. Turkey, Application no. 25704/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 27 February 2001, paras. 137-138:
"137. The Court recalls the earlier findings of the Commission and Court concerning the inadequacy and unreliability of custody records (see Cakici v. Turkey [GC], no. 23657/94, para. 105, ECHR 199-IV; Aydin v. Turkey judgment of 25 September 1997, Reports 1997-VI, Opinion of the Commission, p. 1941, para. 172) that such records cannot in general be relied upon to prove that a person was not taken into custody [ ].
138. Against the above background, the Court considers that even if the applicants sons names do not appear in the custody registers, this does not prove that they were not arrested by the gendarmes."
?akici v Turkey, Application No. 23657/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 8 July 1999, para.105:
"105. [ ] The Court recalls that it has accepted the Commissions findings that Ahmet Cakici was apprehended by the security forces, taken to Hazro where he spent the night of 8 November 1993 and transferred to Diyarbakir provincial gendarmerie headquarters where he was detained until at least 2 December 1993. [ ]"
"The Commission considers that forced disappearance has occurred when a person is arrested by State agents or with the acquiescence of same, with or without orders from a competent authority, and this arrest is then denied and no information is made available as to the destination or whereabouts of the detainee.
Accordingly, the following requirements have to be met for arrest followed by disappearance to be deemed to have occurred: (i) an arrest as described above must have been made; (ii) this arrest must have been carried out by State agents or by irregular groups (paramilitary or parapolice) acting with the acquiescence of the state authorities or under their operational control; and (iii) the holding of the victim must have been systematically denied by the authorities responsible for public order. [8]
According to the Commission's practice, an arbitrary or illegal arrest is deemed to have occurred when three different assumptions are satisfied, namely: (i) when the arrest is made without any valid legal grounds (totally illegal arrest); (ii) when it is carried out without observance of the forms required by law; and (iii) when it is inconsistent with the powers of arrest, i.e. when an arrest is made for purposes other than those specified and required by law (arrest for improper purposes);
In the present case, it is apparent from the file that the citizens Quint?n Alférez Ojuro, Telésforo Alférez Achinquipa, Gregorio Huisa Alcahuaman, Damasio Charcahuana Huisa, Toribio Achinquipa Pacco, Pedro G?mez, a man named Huamán, and the unidentified girl of about eight years of age, were arrested in an illegal and arbitrary fashion by the members of a Peruvian Army patrol between April 20 and April 30, 1990, in the province of Chumbivilcas.
In accordance with the foregoing it can be concluded that in the present case there were arbitrary arrests of defenseless persons without any justification whatsoever, and that these arrests have been repeatedly denied by the military authorities, thus giving rise to a collective case of forced disappearance [ ]."
"(8)Inter-American Commission on Human Rights: "American Convention on Forced or Involuntary Disappearance of Persons", in "Revista del Instituto Interamericano de Derechos Humanos", July-December 1987, No. 6, p. 95."
"2.1 The author states that, in January 1989, his family home in Benghazi, where the family, including his brother, his brother's wife and their two children, lived, was searched at dawn. The intruders allegedly were members of the Mukhabarat, the Libyan security police. Mohammed El-Megreisi was asked to dress and accompany them, purportedly to assist in some unspecified security matter. He never returned. The author adds that "no one could visit his brother and no one was given any information about him".
2.2 The author claims that the security police falsely suspected his brother of active involvement in politics. No specific charges were brought against Mohammed El-Megreisi, nor was a trial ever held. The family could not trace him for approximately three years and feared that he had been tortured or killed, which is said to be the usual fate of political detainees in Libya."
"5.2 In spite of a reminder addressed to it in October 1993, the State party did not provide any information in respect of the substance of the author's allegations, nor in respect of Mr. M.El-Megreisi's current whereabouts, state of health and conditions of detention, as requested in paragraph 6 (c) of the Committee's decision on admissibility. The Committee notes with regret and great concern the absence of cooperation on the part of the State party, both in respect of the admissibility and the substance of the author's allegations. It is implicit in article 4, paragraph 2, of the Optional Protocol and in rule 91 of the Committee's rules of procedure that a State party to the Covenant must investigate in good faith all the allegations of violations of the Covenant made against it and its authorities, and to furnish to the Committee the information available to it. The lack of cooperation from the State party prevents the Committee from fully discharging its functions under the Optional Protocol.
5.3 The Committee therefore bases its assessment on the undisputed facts that Mr. Mohammed El-Megreisi was arrested in January 1989, that no charges were or have been brought against him, and that he has not been released to date. In the opinion of the Committee, therefore, he has been subjected to arbitrary arrest and detention, and continues to be arbitrarily detained, contrary to article 9 of the Covenant."
"12.3 The Human Rights Committee, accordingly, finds that, on 28 June 1976, Elena Quinteros was arrested on the grounds of the Embassy of Venezuela at Montevideo by at least one member of the Uruguayan police force and that in August 1976 she was held in a military detention centre in Uruguay where she was subjected to torture."
5.2. The perpetrator detained one or more persons; OR
A. Evidentiary comment:
Footnote 26 notes that the initial detention may have been lawful. However, the situation may still amount to enforced disappearance. According to Georg Witschel and Wiebke Rückert, "a perpetrator cannot exonerate him/herself simply by arguing that the initial arrest was lawful, if the elements of enforced disappearance are met". (in Roy S. Lee, The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, p. 101).
P.3. Evidence that the perpetrator detained one or more persons.
A. Legal source/authority and evidence:
Taş v. Turkey, Application no. 24396/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 14 November 2000, para. 85:
"85. The Court notes that its reasoning and findings in relation to Article 2 above leave no doubt that Muhsin Taşs detention was in breach of Article 5. He was apprehended on 14 August 1993 by gendarmes in Cizre and transferred the same day to a place of detention in Ş?rnak. The authorities have failed to provide a plausible explanation for the whereabouts and fate of the applicants son after that date. The investigation carried out by the domestic authorities into the applicants allegations was neither prompt nor effective. It regards with particular seriousness the lack of any entries in official custody records in respect of Muhsin Taşs detention."
?akici v Turkey, Application No. 23657/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 8 July 1999, para.105:
"105. The Court recalls that it has accepted the Commissions findings that Ahmet Cakici was apprehended by the security forces, taken to Hazro where he spent the night of 8 November 1993 and transferred to Diyarbakir provincial gendarmerie headquarters where he was detained until at least 2 December 1993."
El-Megreisi v. Libyan Arab Jamahiriya, Human Rights Committee, Communication No. 440/1990, 23 March 1994, CCPR/C/50/D/440/1990, paras. 5.3 and 5.4:
"5.3 The Committee therefore bases its assessment on the undisputed facts that Mr. Mohammed El-Megreisi was arrested in January 1989, that no charges were or have been brought against him, and that he has not been released to date. In the opinion of the Committee, therefore, he has been subjected to arbitrary arrest and detention, and continues to be arbitrarily detained, contrary to article 9 of the Covenant.
5.4 Moreover, the Committee notes, 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."
P.4. Evidence the perpetrator maintained an existing detention.
A. Legal source/authority and evidence:
Georg Witschel and Wiebke Rückert in Roy S. Lee, The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, p. 101:
"Footnote 1 was added to element 1 in order to clarify that the word "detained"includes a perpetrator who maintains an existing detention. For example, a director of a detention facility knowingly accepting control over a victim who had already been made to "disappear" by another person, may be held responsible because he/she continues an existing deprivation of freedom."
P.5. Evidence of detention in secret/clandestine jails.
A. Legal source/authority and evidence:
:"143. This Court has established as proven in the case being examined, that Efra?n Bámaca Velásquez was detained by the Guatemalan army in clandestine detention centers for at least four months, thus violating Article 7 of the Convention (supra 121 I, j, k, l)."
:"90. Various witnesses testified that they were kidnapped, imprisoned in clandestine jails and tortured by members of the Armed Forces (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Virgilio Car?as, Milton Jiménez Puerto, René Velásquez D?az and Leopoldo Aguilar Villalobos).
91. Inés Consuelo Murillo testified that she was secretly held for approximately three months. According to her testimony, she and José Gonzalo Flores Trejo, whom she knew casually, were captured on March 13, 1 983 by men who got out of a car, shouted that they were from Immigration and hit her with their weapons. Behind them was another car which assisted in the capture. She said she was blindfolded, bound, and driven presumably to San Pedro Sula, where she was taken to a secret detention center."
, paras. 103 and 118(a):"103. The former member of the Armed Forces confirmed the existence of secret jails and of specially chosen places for the burial of those executed."
"118(a). The places of detention were unknown."
El-Megreisi v. Libyan Arab Jamahiriya, Human Rights Committee, Communication No. 440/1990, 23 March 1994, CCPR/C/50/D/440/1990, para. 5.4:
"5.4 Moreover, the Committee notes, 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."
5.3. The perpetrator abducted one or more persons.
P.6. Evidence that the perpetrator abducted one or more persons using force.
P.6.1. Evidence of force being used to take the victim out of his/her residence.
A. Legal source/authority and evidence:
Conviction of former Military Commanders, Argentina, Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal, Judgment of December 9, 1985, Case reported and translated by Henry Dahl and Alejandro M. Garro, Human Rights Law Journal, Vol.8, No. 2-4, 386, para. 121:
"It has been proven that on February 4, 1977, at approximately 12:00 oclock, Adriana Calvo de Laborde was taken forcibly from her residence located at No. 1155, 528th Street, Tolosa, Province of Buenos Aires. Proof of this event is based upon the declarations of the victim and the testimony of Maria Elena Camino de González Litardo, a neighbor who claims to have been present at the time the victim was taken hand-cuffed by armed persons. Eduardo González Litardo, the neighbors husband, also witnessed the abduction and testified to the above."
, para. 99:"99. According to testimony on the modus operandi of the practice of disappearances, the kidnappers followed a pattern: they used automobiles with tinted glass (which requires a special permit from the Traffic Division), without license plates or with false plates, and sometimes used special disguises, such as wigs, false mustaches, masks, etc. The kidnappings were selective. The victims were first placed under surveillance, then the kidnapping was planned. Microbuses or vans were used. Some victims were taken from their homes; others were picked up in public streets. On one occasion, when a patrol car intervened, the kidnappers identified themselves as members of a special group of the Armed Forces and were permitted to leave with the victim (testimony of Ram?n Custodio L?pez, Miguel Angel Pav?n Salazar, Efra?n D?az Arrivillaga and Florencio Caballero)."
Celis Laureano v. Peru, Human Rights Committee, Communication No 540/1993, 25 March 1996, CCPR/C/56/D/540/1993, para. 2.4:
"2.4 On 13 August 1992, at approximately 1 a.m., Ms. Laureano was abducted from the house where she and the author were staying. The author testified that two of the kidnappers entered the building via the roof, while the others entered through the front door. The men were masked, but the author observed that one of them wore a military uniform, and that there were other characteristics, e.g., the type of their firearms and the make of the van into which his granddaughter was pulled, which indicated that the kidnappers belonged to the military and/or special police forces."
P.6.2. Evidence of picking up victims in public places using force.
A. Legal source/authority and evidence:
Fairén-Garbi and Sol?s-Corrales v. Honduras, Petition No. 7951, Judgment, Inter-American Court of Human Rights, 15 March 1989, para. 153(b):
"153(b) Those disappearances followed a similar pattern. The victims were first followed and kept under surveillance and then kidnapped by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity and who used vehicles without any official identification, with tinted windows and with false license plates or no plates (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez, Efrain Diáz Arrivillaga, Florencio Caballero and press clippings)."
, paras. 99, 147:"99. According to testimony on the modus operandi of the practice of disappearances, the kidnappers followed a pattern: they used automobiles with tinted glass (which requires a special permit from the Traffic Division), without license plates or with false plates, and sometimes used special disguises, such as wigs, false mustaches, masks, etc. The kidnappings were selective. The victims were first placed under surveillance, then the kidnapping was planned. Microbuses or vans were used. Some victims were taken from their homes; others were picked up in public streets. On one occasion, when a patrol car intervened, the kidnappers identified themselves as members of a special group of the Armed Forces and were permitted to leave with the victim (testimony of Ram?n Custodio L?pez, Miguel Angel Pav?n Salazar, Efra?n D?az Arrivillaga and Florencio Caballero)."
"147 ( ) e. On September 12, 1981, between 4:30 and 5:00 p.m., several heavily-armed men in civilian clothes driving a white Ford without license plates kidnapped Manfredo Velásquez from a parking lot in downtown Tegucigalpa."
Commission on Human Rights, "Civil and Political Rights, Including the Questions of: Disappearances and Summary Executions. Question of Enforced or involuntary disappearances. Report of the Working Group on Enforced or Involuntary Disappearances. Addendum. Mission to Nepal. 6-14 December 2004", E/CN.4/2005/65/Add.1, 28 January 2005, para. 27:
"27. In many of the cases attributed to the security forces, and especially the army, a clear pattern has emerged. A person suspected of Maoist sympathies, or simply of having contact with Maoists, is seized by a large group of known military personnel out of patrol. He or she is blindfolded and his or her hands tied behind the back. The victim is put into a military vehicle and taken away. The security forces often appear in plain clothes so that no personal names and/or unit names are visible. Very commonly, the victim is later seen being driven around in an army vehicle, reportedly to point out the homes of other "suspects". In almost all cases, the victim is held incommunicado in army barracks, with no access to family or legal counsel."
P.7. Evidence that the perpetrator abducted one or more persons using his or her authority.
A. Legal source/authority and evidence:
, para. 99:
"99. According to testimony on the modus operandi of the practice of disappearances, the kidnappers followed a pattern: they used automobiles with tinted glass (which requires a special permit from the Traffic Division), without license plates or with false plates, and sometimes used special disguises, such as wigs, false mustaches, masks, etc. The kidnappings were selective. The victims were first placed under surveillance, then the kidnapping was planned. Microbuses or vans were used. Some victims were taken from their homes; others were picked up in public streets. On one occasion, when a patrol car intervened, the kidnappers identified themselves as members of a special group of the Armed Forces and were permitted to leave with the victim (testimony of Ram?n Custodio L?pez, Miguel Angel Pav?n Salazar, Efra?n D?az Arrivillaga and Florencio Caballero)."
:"91. Inés Consuelo Murillo testified that she was secretly held for approximately three months. According to her testimony, she and José Gonzalo Flores Trejo, whom she knew casually, were captured on March 13, 1983 by men who got out of a car, shouted that they were from Immigration and hit her with their weapons. Behind them was another car which assisted in the capture. She said she was blindfolded, bound, and driven presumably to San Pedro Sula, where she was taken to a secret detention center."
A. Evidentiary comment:
This second branch was added to Element 3 so as to ensure that it was considered as an alternative branch of the actus reus (as opposed to only a circumstantial element). Hence, the various acts described in Element 3 can be committed alternatively and by different persons. In order to fulfil the requirement of branch (b), the Prosecutor has to establish that someone subsequently refused to acknowledge the deprivation of liberty, or give information on the fate or whereabouts of the victim. (Georg Witschel and Wiebke Rückert in Roy S. Lee, The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, p. 101 and Machteld Boot, Genocide, Crimes Against Humanity, War Crimes, p. 527).
5.4. The perpetrator refused to acknowledge the arrest, detention or abduction; OR
P.8. Evidence of denying arrest.
A. Legal source/authority and evidence:
"In accordance with the foregoing it can be concluded that in the present case there were arbitrary arrests of defenseless persons without any justification whatsoever, and that these arrests have been repeatedly denied by the military authorities, thus giving rise to a collective case of forced disappearance with violation of a set of rights possessed by all persons such as personal liberty, the right to humane treatment and due process, and even the right to life itself, the latter being presumed on the bases of the time that has elapsed without the persons in question reappearing."
P.9. Evidence of denying custody.
A. Legal source/authority and evidence:
?i?ek v. Turkey, Application no. 25704/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 27 February 2001, para. 32:
"32. On July 1994 Feride Cicek filed two petitions with the Diyarbakir Public Prosecutor asking whether her brothers, who had been taken away by the security forces on 10 May 1944, were actually held in custody. She only received a verbal reply to the effect that they were not in custody. The same day she filled another petition with the public prosecutor as regards the disappearance of her nephew, Cayan Cicek. Again, verbally, she was told that Cayan was not in custody."
:"153. ( ) iv. When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efra?n D?az Arrivillaga, Florencio Caballero, Virgilio Car?as, Milton Jiménez Puerto, René Velásquez D?az, Zenaida Velásquez, César Augusto Murillo and press clippings);
, para. 147.d. iv:"147 [ ] d. [ ] iv. When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efra?n D?az Arrivillaga, Florencio Caballero, Virgilio Car?as, Milton Jiménez Puerto, René Velásquez D?az, Zenaida Velásquez, César Augusto Murillo and press clippings);" [ ]
Chumbivilcas v. Perú, Case 10.559, Report No. 1/96, IACtHR, OEA/Ser.L/V/II.91 Doc. 7 at p.136 (1996).
"The Commission considers that forced disappearance has occurred when a person is arrested by State agents or with the acquiescence of same, with or without orders from a competent authority, and this arrest is then denied and no information is made available as to the destination or whereabouts of the detainee.
Accordingly, the following requirements have to be met for arrest followed by disappearance to be deemed to have occurred: (iii) the holding of the victim must have been systematically denied by the authorities responsible for public order. [8]
[ ]
In the present case, it is apparent from the file that the citizens Quint?n Alférez Ojuro, Telésforo Alférez Achinquipa, Gregorio Huisa Alcahuaman, Damasio Charcahuana Huisa, Toribio Achinquipa Pacco, Pedro G?mez, a man named Huamán, and the unidentified girl of about eight years of age ( ) notwithstanding the requests made by the rural organizations, the Catholic Church and the Government Attorney's office the military authorities have systematically refused to acknowledge responsibility for the facts reported, which clearly include charges of forced disappearance of the above-referred citizens."
"(8)Inter-American Commission on Human Rights: "American Convention on Forced or Involuntary Disappearance of Persons", in "Revista del Instituto Interamericano de Derechos Humanos", July-December 1987, No. 6, p. 95."
Quinteros Almeida v. Uruguay, Human Rights Committee, Communication No. 107/1981, 21 July 1983, para. 1.4:
"1.4 The author claims that since that day (28 June 1976) she could never obtain from the authorities any official information about her daughter's whereabouts, nor was her detention officially admitted."
A. Legal source/authority and evidence:
:"132. This Court has considered proven, on the basis of both the circumstantial evidence and the direct evidence, that, as the Commission has indicated, at the time of the facts of the case, the Army had a practice of capturing guerrillas, detaining them clandestinely without advising the competent, independent and impartial judicial authority, physically and mentally torturing them in order to obtain information and, eventually, killing them (supra 121f). It can also be asserted, according to the evidence submitted in this case, that the disappearance of Efra?n Bámaca Velásquez is related to this practice (supra 121 h, i, j, k, l), and therefore the Court deems it to have been proved."
"145. (g) the Guatemalan public authorities not only obstructed the investigation into the fate of Mr. Bámaca [Velásquez] with a blanket of silence, [but] they also began a campaign of harassing Mrs. Harbury; for example, through press campaigns, the legal action for jactitation, and her exclusion from the criminal proceedings. In view of the foregoing, the Commission requested the Court to declare that this article had been violated with regard to the next of kin of Bámaca Velásquez, who are: Jennifer Harbury, José de Le?n Bámaca Hernández, the victim's father, and Egidia Gebia Bámaca Velásquez and Josefina Bámaca Velásquez, the victim's sisters."
Taş v. Turkey, Application no. 24396/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 14 November 2000, para. 85:
"85. The Court notes that its reasoning and findings in relation to Article 2 above leave no doubt that Muhsin Taşs detention was in breach of Article 5. He was apprehended on 14 August 1993 by gendarmes in Cizre and transferred the same day to a place of detention in Ş?rnak. The authorities have failed to provide a plausible explanation for the whereabouts and fate of the applicants son after that date. The investigation carried out by the domestic authorities into the applicants allegations was neither prompt nor effective. It regards with particular seriousness the lack of any entries in official custody records in respect of Muhsin Taşs detention."
"147 [ ] d. [ ]
iv. When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efra?n D?az Arrivillaga, Florencio Caballero, Virgilio Car?as, Milton Jiménez Puerto, René Velásquez D?az, Zenaida Velásquez, César Augusto Murillo and press clippings);" [ ]
"[g] [ ]
iii. In the case of Manfredo Velásquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of habeas corpus and two criminal complaints were brought (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez, Zenaida Velásquez, press clippings and documentary evidence)."
"The Commission considers that forced disappearance has occurred when a person is arrested by State agents or with the acquiescence of same, with or without orders from a competent authority, and this arrest is then denied and no information is made available as to the destination or whereabouts of the detainee."
El-Megreisi v. Libyan Arab Jamahiriya, Human Rights Committee, Communication No. 440/1990, 23 March 1994, CCPR/C/50/D/440/1990, paras. 2.1, 2.2 and 5.2:
"2.1 The author states that, in January 1989, his family home in Benghazi, where the family, including his brother, his brother's wife and their two children, lived, was searched at dawn. The intruders allegedly were members of the Mukhabarat, the Libyan security police. Mohammed El-Megreisi was asked to dress and accompany them, purportedly to assist in some unspecified security matter. He never returned. The author adds that "no one could visit his brother and no one was given any information about him".
2.2 The author claims that the security police falsely suspected his brother of active involvement in politics. No specific charges were brought against Mohammed El-Megreisi, nor was a trial ever held. The family could not trace him for approximately three years and feared that he had been tortured or killed, which is said to be the usual fate of political detainees in Libya."
"5.2 In spite of a reminder addressed to it in October 1993, the State party did not provide any information in respect of the substance of the author's allegations, nor in respect of Mr. M.El-Megreisi's current whereabouts, state of health and conditions of detention, as requested in paragraph 6 (c) of the Committee's decision on admissibility. The Committee notes with regret and great concern the absence of cooperation on the part of the State party, both in respect of the admissibility and the substance of the author's allegations. It is implicit in article 4, paragraph 2, of the Optional Protocol and in rule 91 of the Committee's rules of procedure that a State party to the Covenant must investigate in good faith all the allegations of violations of the Covenant made against it and its authorities, and to furnish to the Committee the information available to it. The lack of cooperation from the State party prevents the Committee from fully discharging its functions under the Optional Protocol."
Quinteros Almeida v. Uruguay, Human Rights Committee, Communication No. 107/1981, 21 July 1983, para. 1.4:
"1.4 The author claims that since that day (28 June 1976) she could never obtain from the authorities any official information about her daughter's whereabouts, nor was her detention officially admitted."
Conviction of former Military Commanders, Argentina, Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal, Judgment of December 9, 1985, Case reported and translated by Henry Dahl and Alejandro M. Garro, Human Rights Law Journal, Vol.8, No. 2-4, 386, para. 124:
"124. It has also been sufficiently shown that during her detention, appeals were made to several authorities to find out where she was held and how to obtain her freedom. This comes from an examination of the testimonies of Maria Inés Laborde de Fernández and Julio C. Calvo, as well as from a judicial request for her whereabouts, which was answered negatively."
A. Legal source/authority and evidence:
):"145.[ ] g) the Guatemalan public authorities not only obstructed the investigation into the fate of Mr. Bámaca [Velásquez] with a blanket of silence, [but] they also began a campaign of harassing Mrs. Harbury; for example, through press campaigns, the legal action for activation, and her exclusion from the criminal proceedings. In view of the foregoing, the Commission requested the Court to declare that this article had been violated with regard to the next of kin of Bámaca Velásquez, who are: Jennifer Harbury, José de Le?n Bámaca Hernández, the victim's father, and Egidia Gebia Bámaca Velásquez and Josefina Bámaca Velásquez, the victim's sisters."
(o):"52. The Court now considers the following relevant facts, which it finds to be established on the basis of the arguments of the State and the Inter-American Commission and the documentary and personal evidence delivered in the instant case: [ ]
(o) Over more than a seven year period, from 1985 to 1992, members of the Blake family made numerous attempts to investigate the facts surrounding Mr. Nicholas Blake's detention, disappearance, death and whereabouts. They met with officials of the U.S. Embassy in Guatemala, with Guatemalan civil and military officials, including the President of the Republic of Guatemala, the President's National Security Adviser, the Guatemalan Human Rights Ombudsman, the Chairman of the Joint Chiefs of Staff, the Head of Military Intelligence, the Commander of Military Zone 19, the Commander of Military Zone 20, the Commander of the Las Majadas Garrison, army colonels and generals, and chiefs and members of the Huehuetenango and El Quiché Civil Patrols. The State concealed Mr. Nicholas Blake's whereabouts and hindered his family's investigation; the patrolmen attempted to conceal the fact that they were members of the civil patrols, contradicted each other's statements about their actions, and concealed Mr. Nicholas Blake's remains after the discovery of those of Mr. Griffith Davis; military authorities refused to take up the case, claiming that Mr. Nicholas Blake had been seized by guerrillas; the Army was aware of the deaths shortly after they occurred and ordered the civil patrolmen allegedly responsible to be questioned, but patrol officials said that "they [could not] locate the men or that they did not exist"; one soldier, who had been assisting with the investigation and had claimed that civil patrols had been responsible, refused to continue cooperate after receiving threats; on several occasions army officials promised to issue a list of the civil patrolmen to the U.S. Embassy in Guatemala, but never did so; the U.S. Embassy in Guatemala gave photographs of the civil patrolmen allegedly responsible for the acts to army officials who promised to detain them, but they later denied ever receiving the photographs. These officials also claimed that they had searched the area; however, it was later discovered that the purpose of the search was not to locate Mr. Nicholas Blake's and Mr. Griffith Davis' remains (cf. April 17, 1997 testimony of Richard R. Blake, Jr.; April 17, 1997 testimony of Samuel Blake; April 17, 1997 testimony of Ricardo Roberto; April 17, 1997 testimony of Justo Victoriano Mart?nez-Morales; Anthropological Forensic Report of July 18, 1992, issued by the Smithsonian Institution; October 1993 statement by Samuel Blake delivered in Washington, D.C.; October 1993 statement by Richard R. Blake, Jr., delivered in Washington, D.C.; statement by Justo Victoriano Mart?nez-Morales delivered in Huehuetenango; June 14, 1993 statement by Michael Shawcross delivered in Antigua, Guatemala; photograph of the patrolman who indicated the place where the remains were found; April 1985 document from the U.S. Embassy in Guatemala to the Secretary of State; April 18, 1989 document from the Consulate to the United States Ambassador in Guatemala; June 1989 document from the U.S. Embassy in Guatemala to the Secretary of State; and March 1990 document from the U.S. Embassy in Guatemala to the Secretary of State)."
A. Legal source/authority and evidence:
(o):"52. The Court now considers the following relevant facts, which it finds to be established on the basis of the arguments of the State and the Inter-American Commission and the documentary and personal evidence delivered in the instant case: [ ]
(o) Over more than a seven year period, from 1985 to 1992, members of the Blake family made numerous attempts to investigate the facts surrounding Mr. Nicholas Blake's detention, disappearance, death and whereabouts. They met with officials of the U.S. Embassy in Guatemala, with Guatemalan civil and military officials, including the President of the Republic of Guatemala, the President's National Security Adviser, the Guatemalan Human Rights Ombudsman, the Chairman of the Joint Chiefs of Staff, the Head of Military Intelligence, the Commander of Military Zone 19, the Commander of Military Zone 20, the Commander of the Las Majadas Garrison, army colonels and generals, and chiefs and members of the Huehuetenango and El Quiché Civil Patrols. The State concealed Mr. Nicholas Blake's whereabouts and hindered his family's investigation; the patrolmen attempted to conceal the fact that they were members of the civil patrols, contradicted each other's statements about their actions, and concealed Mr. Nicholas Blake's remains after the discovery of those of Mr. Griffith Davis; military authorities refused to take up the case, claiming that Mr. Nicholas Blake had been seized by guerrillas; the Army was aware of the deaths shortly after they occurred and ordered the civil patrolmen allegedly responsible to be questioned, but patrol officials said that "they [could not] locate the men or that they did not exist"; one soldier, who had been assisting with the investigation and had claimed that civil patrols had been responsible, refused to continue cooperate after receiving threats; on several occasions army officials promised to issue a list of the civil patrolmen to the U.S. Embassy in Guatemala, but never did so; the U.S. Embassy in Guatemala gave photographs of the civil patrolmen allegedly responsible for the acts to army officials who promised to detain them, but they later denied ever receiving the photographs. These officials also claimed that they had searched the area; however, it was later discovered that the purpose of the search was not to locate Mr. Nicholas Blake's and Mr. Griffith Davis' remains (cf. April 17, 1997 testimony of Richard R. Blake, Jr.; April 17, 1997 testimony of Samuel Blake; April 17, 1997 testimony of Ricardo Roberto; April 17, 1997 testimony of Justo Victoriano Mart?nez-Morales; Anthropological Forensic Report of July 18, 1992, issued by the Smithsonian Institution; October 1993 statement by Samuel Blake delivered in Washington, D.C.; October 1993 statement by Richard R. Blake, Jr., delivered in Washington, D.C.; statement by Justo Victoriano Mart?nez-Morales delivered in Huehuetenango; June 14, 1993 statement by Michael Shawcross delivered in Antigua, Guatemala; photograph of the patrolman who indicated the place where the remains were found; April 1985 document from the U.S. Embassy in Guatemala to the Secretary of State; April 18, 1989 document from the Consulate to the United States Ambassador in Guatemala; June 1989 document from the U.S. Embassy in Guatemala to the Secretary of State; and March 1990 document from the U.S. Embassy in Guatemala to the Secretary of State).
, para. 78:
"78. The evidence offered shows that lawyers who filed writs of habeas corpus were intimidated, that those who were responsible for executing the writs were frequently prevented from entering or inspecting the places of detention, and that occasional criminal complaints against military or police officials were ineffective, either because certain procedural steps were not taken or because the complaints were dismissed without further proceedings."
P.13. Evidence of refusing inspection of the places of detention.
A. Legal source/authority and evidence:
, para. 78:
"78. The evidence offered shows that lawyers who filed writs of habeas corpus were intimidated, that those who were responsible for executing the writs were frequently prevented from entering or inspecting the places of detention, and that occasional criminal complaints against military or police officials were ineffective, either because certain procedural steps were not taken or because the complaints were dismissed without further proceedings."
P.14. Evidence of purposely providing false information.
A. Legal source/authority and evidence:
Gerhard Werle, Principles of International Criminal Law (2005), para. 756:
"Purposely providing false information is considered a refusal to provide information."
A. Legal source/authority and evidence:
Gerhard Werle, Principles of International Criminal Law (2005), para. 756:
"( ) it is necessary that no immediate information to be provided upon request, for example by the victims relatives, on the fate and whereabouts of the victim. The simple failure to provide information even without a request is not enough."
