| UNITED | |
| NATIONS | E |
| Economic and Social | Distr. |
| Council | GENERAL | |
| E/CN.4/1996/38 | ||
| 15 January 1996 | ||
| ENGLISH ONLY* |
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Item 8 (c) of the provisional agenda
Report of the Working Group on Enforced or Involuntary Disappearances
* In view of its length, the present document is being issued in the original language only, the Conference Services Division of the United Nations Office at Geneva having insufficient capacity to translate documents that greatly exceed the 32-page limit recommended by the General Assembly (see Commission resolution 1993/94, para. 1).
1. The present report of the Working Group on Enforced or Involuntary Disappearances is submitted pursuant to Commission on Human Rights resolution 1995/38, entitled "Question of enforced disappearances". 1/ In addition to the specific tasks entrusted to the Working Group by the Commission in this resolution, the Group has also taken into account other mandates stemming from a number of resolutions adopted by the Commission, entrusted to all special rapporteurs and working groups. These are explained in chapter I, section A, "Legal framework for the activities of the Working Group". All these tasks have been given due attention and consideration by the Working Group in the course of 1995.
2. During the year under review, the Working Group continued to carry out the activities it has undertaken since its establishment. Its original role, which it has described in previous reports, is to act as a channel of communication between families of the disappeared persons and the Governments concerned, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the disappeared persons clarified. Since its inception, the Working Group has analysed thousands of cases of disappearance and other information received from Governments and nongovernmental organizations, individuals and other sources of information from all over the world in order to ascertain whether such material falls under the Working Group's mandate and contains the required elements; entered cases into its database; transmitted those cases to the Governments concerned, requesting them to carry out investigations and to inform the group about their results; forwarded the Governments' replies to relatives or other sources; followed up investigations carried out by the Governments concerned, as well as the inquiries made by the relatives or other agencies or organizations; maintained a considerable correspondence with Governments and the sources of information in order to obtain details on the cases and the investigations; and examined allegations of a general nature concerning specific countries with regard to the phenomenon of disappearances.
3. In addition to its original mandate, the Working Group has been entrusted by the Commission with various other tasks. In particular, the Working Group is to monitor States' compliance with their obligations deriving from the Declaration on the Protection of All Persons from Enforced Disappearance. States are under an obligation to take effective measures to prevent and terminate acts of enforced disappearance, by making them continuing offences
1/ Since its creation in 1980, the Working Group has submitted a report to the Commission annually, starting at the Commission's thirtyseventh session. The document symbols of the last 14 reports are as follows: E/CN.4/1435 and Add.1; E/CN.4/1492 and Add.1; E/CN.4/1983/14; CN.4/1984/21 and Add.1 and 2; E/CN.4/1985/15 and Add.1; E/CN.4/1986/18 and Add.1; E/CN.4/1987/15 and Corr.1 and Add.1; E/CN.4/1988/19 and Add.1; E/CN.4/1989/18 and Add.1; E/CN.4/1990/13; E/CN.4/1991/20 and Add.1; E/CN.4/1992/18 and Add.1; E/CN.4/1993/25 and Add.1; E/CN.4/1994/26 and Corr.1 and 2 and Add.1; E/CN.4/1995/36.
under criminal law and establishing civil liability. The Declaration also refers to the right to a prompt and effective judicial remedy, as well as unhampered access of national authorities to all places of detention, the right to habeas corpus, the maintenance of centralized registers of all places of detention, the duty to investigate fully all alleged cases of disappearance, the duty to try alleged perpetrators of disappearance before ordinary (not military) courts, the exemption of the criminal offence of acts of enforced disappearance from statutes of limitations, special amnesty laws and similar measures leading to impunity. The Working Group reminded the Governments of these obligations not only in the context of clarifying individual cases, but also by taking action of a more general nature. During the year under review, it drew the attention of Governments and nongovernmental organizations to the general or specific aspects of the Declaration; it discussed with representatives of Governments and nongovernmental organizations how to solve specific problems in the light of the Declaration and how to overcome obstacles to its implementation.
4. As in previous years, the Working Group has continued to apply the urgent action procedure in cases that allegedly occurred within three months preceding the receipt of the report by the Group, and has also promptly intervened with Governments in cases in which relatives of missing persons, or other individuals or organizations which have cooperated with the Group, or their legal counsel, have been subjected to intimidation, persecution or other reprisals.
5. The total number of cases being kept under active consideration as they have not yet been clarified now stands at 43,508. In 1995, the Working Group received some 824 new cases of disappearance in 27 countries. The number of countries with outstanding cases of alleged disappearances was 63 in 1995.
6. As in the past, the present report reflects only communications or cases examined before the last day of the third annual session of the Working Group, which was 17 November 1995. Urgent action cases which may have to be dealt with between that date and the end of the year, as well as communications received from Governments after 17 November 1995, will be reflected in the Working Group's next report.
7. In 1995, the Working Group continued to undertake a review of its methods of work, which it had begun in 1994, bearing in mind, in particular, its responsibilities under the Declaration on the Protection of All Persons from Enforced Disappearance. It was guided by resolution 1995/38, paragraph 20, in which the Commission on Human Rights requested the Working Group to again identify obstacles to the realization of the provisions of the Declaration, to recommend ways of overcoming those obstacles and to pursue, in this respect, its dialogue with Governments and institutions concerned. The Group's general recommendations and comments are contained in chapter I.F on the implementation of the Declaration. Its countryspecific observations, if any, are to be found at the end of the respective country chapters in part II of the present report. The Commission will find the Group's revised methods of work in annex I to this report.
8. One member of the Group, Mr. Diego GarcíaSayán, carried out a visit to El Salvador in order to continue a process, begun last year, of examining, with the Governments concerned, what to do with the large number of very old cases of disappearance which remain pending on the Group's books, taking into account, of course, the legitimate human rights concerns of the families. The Working Group intends to pursue such discussions with other Governments in the future.
9. Finally, the Working Group feels obliged to draw the Commission's attention to another matter. The Group fully understands, particularly in a situation of serious financial crisis, the efforts of the United Nations to reduce unnecessary costs and expenditures. In a spirit of cooperation, the Group agreed, therefore, to reduce its fortyseventh session from eight working days to five, and to postpone its visit to Colombia from 1995 to 1996.
10. The Working Group has no understanding, however, of the way in which the decision to reduce costs is being implemented. If one wishes to save money by reducing the size of the reports of working groups, special rapporteurs and other expert bodies established by the Commission, there should, first of all, be clear guidelines on the page length which take into account the different natures and types of work of the different mandates. While 32 pages may be a reasonable limit for certain reports, it is certainly not the case for the report of this Working Group, which deals with almost 70 countries. Secondly, these guidelines should be brought to the attention of the respective entities before they start to draft their reports to the Commission.
11. It is unacceptable to the Working Group to be told a few days before the adoption of its report that a 32page limit for reports may now be enforced, when this had never been the case in the past. In showing once again its willingness to cooperate, the Group made great efforts to cut its report down to some 100 pages. Any further reduction would have been irreconcilable with its duty to carry out its mandate and to report to the Commission in a responsible manner.
12. The legal framework for the activities of the Working Group has been extensively described in its reports to the Commission on Human Rights at its fortyfirst to fiftyfirst sessions.
13. In resolution 1995/38, the Commission, having expressed concern that the practice of a number of States could run counter to the Declaration on the Protection of All Persons from Enforced Disappearances, and deeply concerned at the increase and spread of the practice of enforced disappearances in various regions of the world, decided to extend for a threeyear period the mandate of the Working Group, in order to enable the Group to take into consideration all such information as might be communicated to it on cases brought to its attention, while maintaining the principle of annual reporting by the Group.
14. Also in its resolution 1995/38, the Commission requested the Group to report on its work to the Commission at its fiftysecond session and to continue to discharge its mandate discreetly and conscientiously; encouraged the Group to submit to the Commission all information it deemed necessary and any specific recommendations it might wish to make regarding the fulfilment of its tasks; invited the Group to identify obstacles to the realization of the Declaration on the Protection of All Persons from Enforced Disappearance, to recommend ways of overcoming those obstacles, and to pursue in that respect its dialogue with Governments and institutions concerned; also invited the Group to continue to consider the question of impunity, in close collaboration with the rapporteurs appointed by the SubCommission on Prevention of Discrimination of Minorities and with due regard for the relevant provisions of the Declaration; and requested the Group to pay particular attention to cases of children subjected to enforced disappearance and children of disappeared parents and to cooperate closely with the Governments concerned to search for and identify these children.
15. In the same resolution, the Commission deplored the fact that some Governments had never provided substantive replies concerning enforced disappearances alleged to have occurred in their countries, nor acted on the recommendations concerning them made in the reports of the Working Group, and urged Governments to cooperate with the Working Group and to reply expeditiously to the Group's requests for information; to intensify their cooperation with the Working Group on any action taken pursuant to recommendations addressed to them by the Group; to take legislative or other steps to prevent and punish the practice of enforced disappearance; to take steps to ensure that, when a state of emergency is introduced, the protection of human rights is guaranteed, particularly as regards the prevention of enforced disappearances; and to take steps to protect the families of disappeared persons against any intimidation or illtreatment to which they might be subjected. The Commission also encouraged States to provide concrete information on measures taken to give effect to the Declaration, as well as obstacles encountered.
16. The Commission also reminded Governments of the need to ensure that their competent authorities conducted prompt and impartial inquiries whenever there was reason to believe that an enforced disappearance had occurred in a territory under their jurisdiction and recalled that, if allegations were confirmed, perpetrators should be prosecuted. The Commission, for the ninth time, repeated its request to the SecretaryGeneral to ensure that the Working Group received all necessary assistance, in particular the staff and resources it required to perform its functions.
17. The Working Group has, furthermore, carefully considered and, where appropriate, acted on provisions of the following resolutions which amplify the Group's mandate as contained in resolution 20 (XXXVI) and 1995/38.
18. In its resolution 1995/40, the Commission invited once again the working groups and the special rapporteurs to pay attention, within the framework of their mandates, to the situation of persons detained, subjected to violence, illtreated or discriminated against for having exercised the right to freedom of opinion and expression. Indeed, many of the disappearances reported to the Working Group may have been caused by the fact that persons have exercised this right. To the extent possible, the Group has tried to reflect in its report relevant information received on this subject.
19. In its resolution 1995/43, the Commission urged all thematic special rapporteurs and working groups to address as appropriate the consequences of the acts, methods and practices of terrorist groups. The Working Group has taken into consideration information received in this connection and reflected it in the appropriate country subsections.
20. In its resolution 1995/53, the Commission invited its special rapporteurs and representatives, as well as working groups to continue to include in their recommendations, whenever appropriate, proposals for specific projects to be realized under the programme of advisory services.
21. In its resolution 1995/57, the Commission called upon relevant rapporteurs, working groups and experts, in accordance with their mandates, to seek information on situations which could lead to internal displacement and to include relevant information and recommendations thereon in their reports to the Commission. The Working Group has reflected any information received in this connection in the relevant country subsections.
22. In its resolution 1995/75, the Commission requested all representatives of United Nations human rights bodies, as well as treaty bodies monitoring the observance of human rights, to continue to take urgent steps, in conformity with their mandates, to help prevent the occurrence of intimidation, and reprisals. The Commission further requested such representatives to include in their respective reports a reference to allegations of intimidation or reprisal, as well as an account of action taken by them in that regard. The Working Group has reflected in the country subsections cases in which it has taken action in the framework of its prompt intervention procedure.
23. In its resolution 1995/79, the Commission recommended that within their mandates special rapporteurs, special representatives and working groups of the Commission and the SubCommission pay special attention to the plight of street children. The Working Group has paid close attention to this resolution, but has received no allegations concerning the disappearance of street children in 1995.
24. In its resolution 1995/80, the Commission called upon all special representatives, special rapporteurs, independent experts and thematic working groups to take fully into account the recommendations contained in the Vienna Declaration and Programme of Action. In section II, paragraph 62, of the Vienna Programme of Action, the World Conference on Human Rights, welcoming the adoption by the General Assembly of the Declaration on the Protection of All Persons from Enforced Disappearance, called upon all States to take effective legislative, administrative, judicial or other measures to prevent, terminate and punish acts of enforced disappearances. The World Conference on Human Rights reaffirmed that it was the duty of all States, under any circumstances, to make investigations whenever there was reason to believe that an enforced disappearance had taken place on a territory under their jurisdiction and, if allegations were confirmed, to prosecute its perpetrators. In accordance with the Vienna Declaration and Programme of Action and the request of the Commission, the Working Group has further developed its efforts to monitor the compliance by States with the provisions of the Declaration on the Protection of All Persons from Enforced Disappearance.
25. In its resolution 1995/85, the Commission requested, among others, human rights treaty bodies, other special rapporteurs responsible for various human rights questions and United Nations bodies and organs to cooperate with and assist the Special Rapporteur on violence against women in the performance of the tasks and duties mandated, in particular to respond to requests for information on violence against women, its causes and its consequences; and in its resolution 1995/87, the Commission called on the thematic special rapporteurs and working groups to include in their reports genderdisaggregated data. Such data have, to the extent possible, been included in the statistical summary of countries found in annex III to the present report.
26. In its resolution 1995/88, the Commission invited the special rapporteurs, special representatives and working groups of the Commission, acting within their mandates, to seek information, where appropriate, on problems resulting in mass exoduses of populations or impeding their voluntary return home and to include such information in their reports. The Working Group has taken information received in this connection into account and reflected it, where appropriate, in the relevant country chapters.
27. The Working Group held three sessions in 1995. The fortyfifth session was held in New York from 5 to 9 June, and the fortysixth and fortyseventh sessions were held at Geneva from 21 to 25 August and from 13 to 17 November, respectively. With regard to the third annual session, in view of the serious financial situation facing the Organization at the end of the year and in response to an appeal from United Nations Headquarters for working groups and committees meeting in late 1995 to reduce the length of their sessions, the Working Group, in a spirit of cooperation, made an exceptional effort to reduce its fortyseventh session from eight working days to five which, unfortunately, prevented the Working Group from meeting with nongovernmental organizations at that session. During its 1995 sessions, the Working Group met with representatives of the Governments of Chile, Colombia, Guatemala, Honduras, India, the Islamic Republic of Iran, Morocco, South Africa and Yemen as well as with the National Commission for Human Rights Mexico. The Group also met with representatives of human rights organizations, associations of relatives of missing persons and families or witnesses directly concerned with reports of enforced disappearances.
28. As in previous years, the Working Group examined information on enforced or involuntary disappearances received from both Governments and nongovernmental organizations and decided, in accordance with its methods of work, on the transmission of such reports or observations received thereon to the Governments concerned. It also requested Governments to provide complementary information whenever necessary for the clarification of cases.
29. In September 1995, one member of the Working Group, Mr. Diego GarcíaSayán, carried out a visit to El Salvador.
30. The Government of Colombia addressed an invitation to the Working Group to visit the country. The Working Group agreed to undertake this visit in the course of 1996.
31. On 21 July 1995, the Working Group addressed a letter to the Governments of India, Iraq and Turkey, expressing its interest in visiting these countries during the course of 1996, in order to intensify its dialogue with the authorities of the countries most directly concerned with the issue of disappearances, as well as with the representatives of the families of those people reportedly disappeared. At the time of the adoption of the present report, no reply to its request had yet been received by the Working Group from Iraq or Turkey. However, the Government of India declined to invite the Working Group.
32. In 1995, the Working Group transmitted 824 new cases of enforced or involuntary disappearance to the Governments concerned; 359 of the cases transmitted were reported to have occurred in 1995; 163 were transmitted under the urgent action procedure, of which 39 were clarified during the year. The majority of newly reported cases which allegedly occurred in 1995 relate to Algeria, Colombia, Mexico, Pakistan, the Sudan, Turkey and Sri Lanka. Many of the other cases received were referred back to the sources as they lacked one or more elements required by the Working Group for their transmission, or because it was not clear whether they fell within the Working Group's mandate; other cases were considered inadmissible within the context of that mandate.
33. By letters dated 31 January and 28 July 1995, the Working Group reminded the Governments concerned of reports of disappearances transmitted during the previous six months under the urgent action procedure. By letter dated 28 April 1995, the Working Group informed Governments of the dates of its three annual sessions for 1995.
34. By letter dated 23 June 1995, the Working Group reminded all Governments of the total number of outstanding cases remaining before it and, when requested, retransmitted the summaries of those cases or the diskettes containing those summaries to them.
35. As has been its practice in the past, following each of its three sessions, the Working Group informed the Governments of decisions it had made with respect to cases of disappearance in their countries. To this end, the Working Group sent letters on 23 June, 30 August and 15 December 1995 to the Governments concerned informing them whether a case had been clarified, on the basis of information provided by the source or the Government; whether a case had been placed under the sixmonth rule; retransmitted to the Government updated with new information from the source; or whether the information submitted by the Government with respect to a specific case was insufficient to consider the case clarified. The Group also transmitted to Governments concerned observations provided by the sources on the Government's replies.
36. On 30 August 1995, the Working Group transmitted to the Governments concerned the allegations which it had received from nongovernmental organizations concerning, in particular, obstacles to the implementation of the Declaration.
37. Taking into account the everincreasing number of United Nations field operations with human rights components, during 1995 the Working Group sought to establish contact with these offices in an effort to take advantage of their unique position on the ground in order to improve its information flow with regard to disappearances. At its fortyfifth session, the Working Group decided to address a letter to the Director of the United Nations Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala (MINUGUA), seeking to establish an interchange of information between the Working Group and the mission with respect to individual cases of enforced or involuntary disappearances in Guatemala. To this end, the Working Group has developed a fruitful dialogue with MINUGUA on both newly reported and pending cases of disappearance.
38. The Working Group also sought information from the human rights field operation in Rwanda on the situation with regard to disappearances in that country. This information is reflected in the Rwanda country chapter.
39. The Working Group has continued to attach great importance to its contacts with nongovernmental organizations and relatives of missing persons, and maintained close contact with sources of information throughout the year, informing them on a regular basis of the state of its investigation into cases of concern to them, as well as the replies it had received from Governments in this respect. The Group also invited these organizations to present information at its three annual sessions and to submit observations relating to the general situation affecting the phenomenon of disappearances in countries of importance to them. The Group received a great deal of information orally and in writing from them.
40. At the same time, however, the Working Group has noted with concern that in some cases nongovernmental organizations have failed to maintain contact with their source, or in other cases, have relegated them to their archives, thus seriously hindering efforts by the Working Group to follow up on individual cases.
41. In July 1995, the Working Group addressed a letter to a number of nongovernmental organizations concerning the implementation of the Declaration in countries of concern to them, requesting them to provide the Group with any pertinent information, in particular, concrete examples of obstacles encountered in this regard. This information is reflected in the appropriate country chapters.
42. As in previous years, the Working Group received reports and expressions of concern from nongovernmental organizations, associations of relatives of disappeared persons and individuals about the safety of persons actively engaged in the search for missing persons, in reporting cases of disappearance or in the investigation of cases. In some countries, the mere fact of reporting a disappearance entailed a serious risk to the life or security of the person making the report or to his or her family members. In addition, individuals, relatives of missing persons and members of human rights organizations were frequently harassed and threatened with death for reporting cases of human rights violations or investigating such cases.
43. The proclamation by the General Assembly on 18 December 1992 in its resolution 47/133 of the Declaration on the Protection of All Persons from Enforced Disappearance was a milestone in the united efforts to combat the practice of disappearance. Many proposals and recommendations which the Working Group has adopted over the years and included in its annual reports have been reflected in the Declaration. In accordance with the Declaration, the systematic practice of disappearance is of the nature of a crime against humanity and constitutes a violation of the right to recognition as a person before the law, the right to liberty and security of the person, and the prohibition of torture, and it also violates or constitutes a grave threat to the right to life. States are under an obligation to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance, in particular to make them continuing offences under criminal law and to establish civil liability.
44. The Declaration also refers to the right to a prompt and effective judicial remedy, as well as unhampered access of national authorities to all places of detention, the right to habeas corpus, the maintenance of centralized registers of all places of detention, the duty to investigate fully all alleged cases of disappearance, the duty to try alleged perpetrators of disappearances before ordinary (not military) courts, the exemption of the criminal offence of acts of enforced disappearance from statutes of limitations, special amnesty laws and similar measures leading to impunity.
45. In its resolutions 1993/35, 1994/39 and 1995/38, the Commission on Human Rights, invited all Governments to take appropriate legislative or other steps to prevent and punish the practice of enforced disappearances, with special reference to the Declaration, and to take action to that end nationally, regionally and in cooperation with the United Nations. In the same resolutions, the Commission requested the Working Group to take into account the provisions of the Declaration, and invited it to cite in future reports any obstacles to the proper application of the Declaration and to recommend means of overcoming them.
46. Despite various efforts by the Working Group to remind Governments of their obligation to implement the provisions of the Declaration by taking appropriate legislative, administrative, judicial or other measures, only very little progress has been made in practice. With some exceptions, States have not begun to take consistent steps to incorporate in their national legislation the principles set out in the Declaration. The Working Group wishes to stress that the obligation to implement the Declaration does not only apply to States where acts of enforced disappearances actually occurred in the past or continue up to the present day. In particular, legislative and other preventive measures shall be taken by all States in order to ensure that acts of disappearance will not occur in the future.
47. With a view to focusing the attention of Governments more effectively on the relevant obligations deriving from the Declaration, the Working Group decided, at its fortyseventh session, to adopt the following general comments on those provisions of the Declaration that might need further explanation in the light of the experience of the Working Group in its communications with Governments.
General comment on article 3 of the Declaration
48. Article 3 of the Declaration on the Protection of All Persons from Enforced Disappearance stipulates that "each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction". This is a broad obligation which is assumed by States and is primarily an obligation to do something. This provision cannot be interpreted in a restrictive sense, since what it does is to serve as the general model for the purpose and nature of the measures to be taken, as well as for the content of the international responsibility of the State in this regard.
49. The purpose of the measures to be taken is clear: "to prevent and terminate acts of enforced disappearance". Consequently, the provision calls for action both by States in any territory under its jurisdiction of which acts of enforced disappearance might have occurred in the past and by States in which such acts have not occurred. All States must have appropriate machinery for preventing and terminating such acts and are therefore under an obligation to adopt the necessary measures to establish such machinery if they do not have it.
50. With regard to the nature of the measures to be taken, the text of the article clearly states that legislative measures are only one kind. In referring to "legislative, administrative, judicial ..." measures, it is clear that, as far as the Declaration is concerned, it is not enough to have formal provisions designed to prevent or to take action against enforced disappearances. It is essential that the entire government machinery should adopt conduct intended for this purpose. To this end, administrative provisions and judicial decisions play a very important role.
51. The article also refers to "other measures", thus making it clear that the responsibility of the State does not stop at legislative, administrative or judicial measures. These are mentioned only by way of example, so it is clear that States have to adopt policy and all other types of measures within their power and their jurisdiction to prevent and terminate disappearances. This part of the provision must be understood as giving the State a wide range of responsibility for defining policies suited to the proposed objective.
52. It is, however, not enough for legislative, administrative, judicial or other measures to be taken, since they also have to be "effective" if they are to achieve the objective of prevention and termination. If the facts showed that the measures taken were ineffective, the international responsibility of the State would be to take other measures and to adapt its policies so that effective results would be achieved. The main criterion for determining whether or not the measures are suitable is that they are effective in preventing and, as appropriate, terminating acts of enforced disappearance.
53. Consequently, the provision contained in article 3 must be understood as the general framework for guiding States and encouraging them to adopt a set of measures. It must be understood that the international responsibility of States in this regard arises not only when acts of enforced disappearance occur, but also when there is a lack of appropriate action to prevent or terminate such acts. Such responsibility derives not only from omissions or acts by the Government and the authorities and officials subordinate to it, but also from all the other government functions and mechanisms, such as the legislature and the judiciary, whose acts or omissions may affect the implementation of this provision.
General comment on article 4 of the Declaration
54. Article 4.1 of the Declaration on the Protection of All Persons from Enforced Disappearance stipulates that "all acts of enforced disappearance shall be offences under criminal law punishable by appropriate penalties which shall take into account their extreme seriousness". This obligation applies to all States regardless of whether acts of enforced disappearance actually take place or not. It is not sufficient for Governments to refer to previously existing criminal offences relating to enforced deprivation of liberty, torture, intimidation, excessive violence, etc. In order to comply with article 4 of the Declaration, the very act of enforced disappearance as stipulated in the Declaration must be made a separate criminal offence.
55. The preamble of the Declaration defines the act of enforced disappearance "in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law". States are, of course, not bound to follow strictly this definition in their criminal codes. They shall, however, ensure that the act of enforced disappearance is defined in a way which clearly distinguishes it from related offences such as enforced deprivation of liberty, abduction, kidnapping, incommunicado detention, etc. The following three cumulative minimum elements should be contained in any definition:
(a) Deprivation of liberty against the will of the person concerned;
(b) Involvement of governmental officials, at least indirectly by acquiescence;
(c) Refusal to disclose the fate and whereabouts of the person concerned.
56. The term "offences under criminal law" refers to the relevant domestic criminal codes that are to be enforced by competent ordinary courts, i.e. neither by any special tribunal, in particular military courts (art. 16.2 of the Declaration), nor by administrative agencies or tribunals. The persons charged with the offence of enforced disappearance shall enjoy all guarantees of a fair trial established in international law (art. 16.4 of the Declaration).
57. It falls into the competence of States to establish the appropriate penalties for the offence of enforced disappearance in accordance with their domestic legal standards. They shall, however, take into account the "extreme seriousness" of acts of enforced disappearance. In the absence of mitigating circumstances, appropriate penalties, therefore, in principle mean prison sentences.
58. According to article 4.2, "mitigating circumstances may be established in national legislation for persons who, having participated in enforced disappearances, are instrumental in bringing the victims forward alive or in providing voluntarily information which would contribute to clarifying cases of enforced disappearance". This provision must, however, be read in conjunction with article 18 which states:
"1. Persons who have, or are alleged to have committed offences referred to in article 4, paragraph 1, above, shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction.
"2. In the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account."
59. Subsequent to the report presented to the fiftyfirst session of the Commission on Human Rights by Mr. Manfred Nowak, expert member of the Working Group on Enforced or Involuntary Disappearances in charge of the mandate (E/CN.4/1995/37), and owing to the importance of the issue of missing persons in the territory of the former Yugoslavia, the Commission on Human Rights adopted resolution 1995/35 entitled "Special process dealing with the problem of missing persons in the territory of the former Yugoslavia". It, thus, entrusted the expert with an independent mandate, the first one established by the Commission which is of a countryspecific and thematic character dealing with one particular violation of human rights, the phenomenon of enforced or involuntary disappearances within the frontiers of the former Yugoslavia. With a view to determining the fate of thousands of missing persons and relieving the suffering of their families, the expert decided to continue using the methods of work of the Working Group on Enforced or Involuntary Disappearances, adapted to the specific situation of the former Yugoslavia.
60. The activities of Mr. Nowak are summarized in his report to the Commission at its present session (E/CN.4/1996/36).
61. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Afghanistan.
62. The two outstanding cases concern a Jordanian journalist who reportedly disappeared in Jalalabad, province of Nangarhar, in 1989 while on assignment, and an American citizen of Afghan origin who allegedly disappeared in 1993 when he was on a visit to Afghanistan.
63. Although many more cases of disappearance may have occurred in Afghanistan, in particular during the period 1978 to 1979, individual cases have not been brought to the Working Group's attention to allow it, in accordance with its methods of work, to take action.
64. Despite a retransmittal, at the Government's request, of the outstanding cases, no information has been received by the Working Group from the Government of Afghanistan with regard to these cases. The Working Group is, therefore, unable to report on the fate and whereabouts of the disappeared persons.
65. During the period under review, the Working Group transmitted to the Government of Algeria 103 newly reported cases of disappearance, 20 of which reportedly occurred in 1995, and 2 of which were sent under the urgent action procedure. During the same period, it clarified one case when it was reported that the person concerned had been released and it retransmitted one case, updated with new information from the source.
66. The one case transmitted in the past reportedly occurred in 1994 and
concerned a 38yearold man who was allegedly abducted from his home by the security forces.
67. All of the newly reported cases occurred between 1993 and 1995. The security forces were alleged to be responsible for all the arrests and subsequent disappearances, which reportedly occurred throughout the country, although mainly in Algiers. A number of those disappeared are reported to have been members or sympathizers of the Islamic Salvation Front (FIS). One case concerned a British resident who was reportedly detained upon his arrival at the airport in Algiers. Another case concerned a person holding dual Algerian and French citizenship. The victims were from a variety of professions including medical doctors, journalists, university professors, students, civil servants and farmers.
68. During the period under review, the Government of Algeria provided information on three individual cases. In one case the person concerned had been detained by the security services and released after 48 hours; with regard to the 2 other cases, the persons concerned had not been arrested nor had they been the subject of any judicial proceedings.
Observations
69. The Working Group expresses its concern at the recent increase in violence in Algeria and, in particular, at the high level of alleged disappearances brought to its attention. It wishes to remind the Government of its responsibilities under the Declaration to take effective measures to prevent, terminate and punish all acts of enforced disappearance.
70. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Angola. The Group considered three cases clarified on the basis of information previously submitted by the Government in which it reported that the persons concerned had participated in the 1977 coup d'état, were taken prisoner, put on trial, convicted and executed by firingsquad. The source subsequently confirmed that their relatives had been executed; however, they denied that the persons concerned had been tried or that they had participated in the coup.
71. The four cases which remain pending on the Working Group's books concern four men who were allegedly arrested in 1977 by the Angolan security forces, in particular by DISA (Angolan information and security forces). Two of them were reportedly arrested because they were suspected of supporting UNITA.
72. With regard to the four outstanding cases, during the period under review the Government of Angola informed the Working Group that the efforts undertaken by the Government to bring to light the fate of these four persons had been to no avail. The police and administrative archives in the towns of Huambo and Onjiva had been totally destroyed. The Permanent Representative of Angola to the United Nations Office at Geneva stated that he himself, together with a team from the AttorneyGeneral's Office, had gone to these towns, but had not been able to find any additional information. The Government further stated that the war had been extremely violent and that documents had been vandalized and burned. It said that, unfortunately, no information on the fate of these four persons could ever be obtained. The Government also said that it sympathized with the suffering of the relatives and friends of the disappeared persons.
73. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Argentina.
74. The vast majority of the 3,462 reported cases of disappearance in Argentina occurred between 1975 and 1978 under the military Government, during its campaign against left-wing guerrillas and their sympathizers.
75. During the same period, a number of nongovernmental organizations addressed themselves to the Working Group with regard to their ongoing quest to have the fate of the persons who disappeared in Argentina brought to light, in particular demanding that the Argentine State present any documentation and other information in its possession on the human consequences of the socalled war against subversion, and especially the consequences of such operations for persons on whose whereabouts as disappeared persons information had been requested.
76. In this connection, there are a number of cases before the courts about which the Working Group has been amply informed during the course of 1995. It was brought to the Working Group's attention that a decision was taken by a judge calling for the State to preserve the documentation and to make it available to the courts. It was reported that the Government of Argentina had appealed against the decision, but that the Federal Chamber of Appeals in Administrative Matters had upheld it. The Government is said to have subsequently filed an extraordinary appeal to submit the appellate court's decision to the Supreme Court.
77. In a legal memorandum (amicus curiae) a nongovernmental organization supported the request, submitted by family members to the Buenos Aires Federal Court for Criminal and Correctional Matters on 27 June 1995, to require the President of the Republic and the ministers with administrative jurisdiction over this question to supply, within a specific time period, all relevant information about the circumstances surrounding the detention or abduction and the fate of the persons who disappeared from the Naval Engineering School between 1976 and 1983. The right to the truth is said to belong not only to the relatives, but to society as a whole.
78. Abundant information was submitted to the Working Group concerning statements made in the Argentine press by former military officials, in which they are reported to have stated that, between 1976 and 1978, some 1,500 to 2,000 detainees were thrown alive from naval airplanes into the ocean. A number of organizations made reference to the situation of children abducted or born while the mother was in detention.
79. By notes verbales dated 5 October and 8 November 1995, the Government of Argentina submitted its reply to the allegations transmitted to it by the Working Group. The Government stated that the policy adopted by the Government was to investigate and try those responsible, while setting limits to judicial investigations in the interest of consolidating democracy during a period of transition. Among other measures, the National Commission on the Disappearance of Persons (CONADEP) was established. CONADEP was given the express mission of "clarifying questions relating to the disappearance of persons in Argentina" for which purpose it was charged with "ascertaining the fate or whereabouts of disappeared persons and any other circumstances relating to their whereabouts". The report produced by CONADEP, Nunca Más, describes the disappearance of the evidence that would have made it possible to locate the disappeared persons.
80. In its conclusions, the report notes that "no legal records were kept on the unlawful situation in which those aberrant deeds were perpetrated, as a result of which no information was handed on to subsequent constitutional Governments and administrations nor were any records left in court files". In Argentina it has so far not been possible to obtain any other facts than those contained in the files of CONADEP, which contain the statements by surviving victims or relatives.
81. The government department responsible for preserving and completing the archives has repeated its standing invitation to all persons who are able to provide information to submit it to the department. Similarly, in a public statement made on 25 April 1995, the head of the General Staff of the Army, LieutenantGeneral Martin Balza, invited any of his subordinates with information that could shed light on the events to submit it through institutional channels.
82. In the judicial sphere, legitimate applications for clarification of the fate of disappeared persons have been examined, despite the fact that criminal proceedings may no longer be brought by virtue of Acts 23,492 and 23,521 and because of the amnesty decrees. The requisite procedural steps concerning the cases in question are being carried out even though in the case of one of them the court handling the matter, the National Court of Criminal Appeal and Federal Correctional Court in the federal capital, turned down the application even though it had examined the merits of the amicus curiae brief referred to in the written reply.
83. As regards the return of children who were abducted or born during their mother's captivity, Decree No. 1306/92 established the National Commission for the Right to an Identity, whose aim is to activate the search for disappeared children and to determine the whereabouts of abducted and disappeared children whose identity is unknown, as well as of children born while their mothers were unlawfully deprived of their liberty, and of other children who are unaware of their identity because they were separated from their biological parents for various reasons.
84. The Commission carries out systematic and thorough investigations in response to requests from the Association of Grandmothers of the Plaza de Mayo or of its own initiative. In all, the Commission holds 49 files, 24 of which were opened recently. Of the 49, 41 are being processed, 7 have already been closed and 1 directed elsewhere. Twentyfive files concerned cases of the children of disappeared persons, 22 trafficking in children and 1 file concerns a question of filiation. The Association of Grandmothers of the Plaza de Mayo has requested information about 125 individuals and the Commission itself 26.
85. As an annex to the abovementioned statement, the Government of Argentina provided the Working Group with a list containing the names of children who have so far been identified, located and returned to their respective families.
Observations
86. The Group understands how difficult it is to gather all the information necessary to determine the whereabouts of thousands of victims of enforced disappearance, and is following with interest the efforts being made by the National Commission for the Right to an Identity to identify and find disappeared children.
87. However, most of the outstanding cases of disappearance have remained unelucidated. For this reason, the Group recalls that, in accordance with the provisions of the Declaration on the Protection of All Persons from Enforced Disappearance, the conduct of investigations "thoroughly and impartially" (art. 13) remains the Argentine State's international obligation "for as long as the fate of the victim of enforced disappearance remains unclarified" (art. 13, para. 6).
88. This obligation implies that it is the State's duty to pursue such investigations and clarifications by all the means at its disposal and also to abstain from any action likely to delay or render such investigations or clarifications difficult. For this reason, the Government should refrain from taking legal steps that hamper the results of legal proceedings designed to preserve information or documentation that could be of use in determining the whereabouts of disappeared persons.
89. During the period under review, no new cases of disappearances were transmitted by the Working Group to the Government of Bolivia.
90. The majority of the 48 cases of disappearance reported to the Working Group occurred between 1980 and 1982, periods when general and often massive violence spread around the country, generated by two military coups d'état. Twenty of these cases have been clarified.
91. Despite a full retransmittal in July 1995, at the request of the Government of Bolivia, of the outstanding cases, no further information has been received from the Government concerning these cases. The Working Group is, therefore, unable to report on the fate and whereabouts of the disappeared persons.
92. During the period under review, the Working Group transmitted three newly reported cases of disappearances to the Government of Brazil. One case occurred in 1994 and two in 1995; all were sent under the urgent action procedure. During the same period it retransmitted one case, updated with new information from the source.
93. The majority of the 57 cases of disappearance in Brazil reported to the Working Group occurred between 1969 and 1975, under the military Government, in particular during the guerrilla warfare in the Araguaia region.
94. The three newly reported cases are all said to have occurred in Rio de Janeiro and to have been carried out by members of the military police. One of the persons concerned is reported to be a lawyer and leader of the civil servants union at the National Library. The other two cases concern persons who are alleged to have been detained by uniformed members of the military police and taken in a vehicle to an unknown destination.
95. During the period under review, the Government of Brazil provided information on one outstanding case in which it reported that the police investigation into the subject's disappearance had not yet been concluded and that there were ongoing efforts to try and determine the person's whereabouts. It stated that there were no indications of any participation of the army or police into the disappearance, but that there was reason to believe that the subject might have been involved with drugs. The submitting source, however, has informed the Group that the lawyer working for the subject's family has reported that no evidence has been produced to support the claim of his involvement with drugs. The Government reported that the investigation into the case was being followed by a public prosecutor and nongovernmental organizations active in the field of human rights in Rio de Janeiro.
96. Last year the Working Group sent a letter to countries with a number of very old cases of disappearance pending on the Group's books, in which the Group sought to examine, together with the Government concerned, what to do with such cases, taking into account, of course, the legitimate human rights concerns of the families. On 2 October 1995, the Government of Brazil addressed a letter to the Chairman of the Working Group forwarding to him a copy of the bill submitted by the Government to Congress which deals with the recognition as dead of the persons who were missing in connection with their participation or presumed participation in political activities in the period from 2 September 1961 to 15 August 1979. The bill provides for the wife or husband, or female or male companion, descendant, ascendant or collateral relative until the fourth grade, to request the registration of a death certificate. Once the death is recognized, under the terms of the bill the abovementioned persons may request compensation.
Observations
97. The Working Group welcomes the initiative by the Government of Brazil to submit to the Congress a draft law which refers to the procedure for the declaration of presumed death of persons subjected to enforced disappearance for political reasons, during the period from 2 September 1961 to 15 August 1979. The Group takes note with appreciation that, in various steps of the procedure established by this draft law, the participation of the families is foreseen which, in the Group's judgement, is an essential requisite. The Group will follow closely the process of implementation of this draft law, should it be promulgated, and wishes to assure the Government of Brazil of its readiness to assist the Government in whatever way it may deem necessary.
98. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Burkina Faso.
99. The three outstanding cases of disappearance reported to the Working Group concerned two soldiers and a university professor, all of whom were reportedly arrested in 1989, together with 27 other persons, on charges of having participated in an alleged conspiracy against the Government.
100. Despite several reminders, no information has ever been received by the Working Group from the Government regarding these cases. The Working Group is, therefore, unable to report on the fate and whereabouts of the disappeared persons.
101. During the period under review, the Working Group transmitted 14 newly reported cases of disappearance to the Government of Burundi, all of which occurred in 1994.
102. All of the 31 previously reported cases of disappearance in Burundi occurred in Bujumbura in November and December 1991, following attacks against the Government in the capital and the northwestern provinces of Cibitoke and Bubanza. The disappeared persons, of Hutu origin, were reportedly arrested by members of the security forces, dominated by the Tutsi minority. Most of them were later held at Mura and at paratroopers' barracks in Bujumbura, while others allegedly disappeared while in custody at the headquarters of the gendarmerie's special investigations brigade, in Bujumbura.
103. The newly reported cases of disappearance allegedly concern Hutus, most of whom had reportedly been assembled and held by members of the security forces in the playing field of the Ecole technique supérieure in Bujumbura. These persons, reportedly suspected of possessing arms, are said to have been arrested and taken away to an unknown destination by members of the armed forces. Another case of disappearance relates to a colonel, responsible for military schools and the Training Centre of the Burundese Army, who was reportedly abducted as he was coming out of the house of one of his colleagues, where he went to collect documents before leaving for a seminar abroad.
104. During the period under review information of a general nature was brought to the Working Group's attention. The recent cases of disappearances brought to the knowledge of the Working Group on Enforced or Involuntary Disappearances in 1995 are said to continue to testify to the worsening climate of violence and internal strife prevailing in many provinces of Burundi, including the capital, Bujumbura, in the aftermath of the failed putsch of 21 October 1993, the murder of the first democratically elected President of Burundi, and the mass killings which followed. Due to ethnic tensions between Hutu and Tutsi and to the prevailing impunity, and despite the curfew proclaimed throughout the country on 18 June 1995, it is estimated that up to 800 civilians are killed every month, and three to four members of the military lose their lives every day as a result of attacks by unidentified armed groups.
105. Due to the confrontation between the army and armed groups and to the cleansing operations undertaken by the military in the northern suburbs of Bujumbura such as Kamenge, up to several tens of thousands of people, mainly of Hutu origin, have allegedly fled to seek refuge in the surrounding hills, without proper shelter, water or food, or have been dispersed within the country. It was alleged that during these operations many people were killed or disappeared. A number of dead bodies were later found in the hills. In other rural areas of the country, especially in the north, many Tutsi, fleeing killings by Hutus, have reportedly found refuge in camps for internally displaced persons.
106. Despite the Convention of Government of 10 September 1994 agreed upon by the coalition Government, no effective measure has reportedly yet been implemented to end impunity or bring to justice the perpetrators of killings, acts of torture or disappearance, in violation of article 14 of the Declaration on the Protection of All Persons from Enforced Disappearance. No reform has been undertaken so far to redress the failings of the judicial system or restructure the Burundese armed forces and the police.
107. So far, no measures have reportedly been taken to end the impunity enjoyed by the armed forces. With respect to the judiciary, the present administrative structure is said to be far from adequate to prosecute properly all those responsible for the latest human rights violations. The main obstacles reportedly lie in the lack of human and financial resources, the lack of balance in ethnic representation, and the poor standards for impartiality and independence.
108. Although several reminders have been sent, no information has ever been received by the Working Group from the Government of Burundi with regard to these cases of disappearance. The Working Group is, therefore, unable to report on the fate and whereabouts of the disappeared persons.
Observations
109. The Working Group is deeply concerned at reports on the worsening climate of violence and internal strife prevailing in many provinces of Burundi, and at the lack of effective measures to end impunity or bring to justice perpetrators of acts of enforced disappearance. It wishes to remind the Government of its obligation under the Declaration to prevent, terminate and punish all acts of enforced disappearance.
110. The Working Group, in particular, stresses the obligation of the Government, under articles 13 and 14 of the Declaration, thoroughly and impartially to investigate all allegations of enforced disappearance and to bring to justice all perpetrators.
111. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Cameroon.
112. All of the six cases reported to the Working Group occurred in 1992. The cases concerned 5 youngsters aged 13 to 17, including 3 brothers, who were reportedly seen being taken into police custody in Bamenda in February 1992 at the time of the arrest of leaders of the Cameroon Anglophone Movement, and over 40 peasants, following a peaceful demonstration. The father of the three brothers also disappeared, following his inquiries to determine the whereabouts of his children.
113. During the period under review, no information was received by the Working Group from the Government of Cameroon concerning these cases. The Working Group is, therefore, unable to report on the fate or whereabouts of the disappeared persons.
114. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Chad.
115. The majority of the six cases of disappearance reported to the Working Group occurred in 1991 and one case in 1983. The latter was submitted by a relative of the victim and concerned a member of the Democratic National Union who was reportedly taken prisoner in July 1983 in the context of clashes between government troops and opposition forces which took place at FayaLargeau. The other cases concerned members of the Hadjerai ethnic group who had reportedly been arrested on 13 October 1991 by the Chadian security forces. Their detention is said to have taken place following an announcement by the authorities that an attempt by a section of the Chadian armed forces to overthrow President Idriss Deby had been thwarted. Soldiers loyal to the Government are said to have killed and arrested many civilians, solely because they came from the Hadjerai ethnic group.
116. During the period under review, no new information was received from the Government of Chad with regard to the outstanding cases. The Working Group is, therefore, unable to report on the fate and whereabouts of the disappeared persons.
117. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Chile. During this period, the Working Group considered clarified 21 cases which concerned 20 persons detained by the armed forces and the carabineros in September and October 1973 and one person detained by the Military Intelligence Service in June 1976. The remains of 17 persons were found and identified as a result of tests carried out by the Forensic Medicine Department of Santiago, and were returned to their relatives. In the four other cases, the death of the missing persons was established through judicial proceedings in which a comparison was made between the victim's fingerprints noted as unidentified in the autopsy records on file in the Forensic Medicine Department and those on the civil register file. During the same period, the Working Group retransmitted 17 cases, updated with new information from the source.
118. The vast majority of the 912 reported cases of disappearance in Chile occurred between 1973 and 1976 under the military Government. They concerned political opponents of the military dictatorship, from different social strata, most of them activists in the Chilean leftist parties. Disappearances were carried out by members of the army, the air force, the carabineros and persons acting with the acquiescence of the authorities.
119. The National Truth and Reconciliation Commission (Comisión Nacional de Verdad y Reconciliación), set up by the civilian Government in April 1990 to investigate serious human rights violations during the period of military rule, concluded that 957 persons had disappeared following their detention by the army or security forces. Since the restoration of civilian Government, some civilian court judges have endeavoured to pursue investigations into disappearances to clarify the facts and establish responsibility. Forensic identification of the remains recovered from mass graves by the Forensic Medicine Department of Santiago are continuing, in spite of the 1978 Amnesty Law which impedes the prosecution of those responsible for the extrajudicial executions and disappearances.
120. During the period under review, information of a general nature concerning the obstacles found in the application of the Declaration on the Protection of All Persons from Enforced Disappearance at the national level was received from nongovernmental organizations. With reference to article 13 of the Declaration, it has been stated that, despite the efforts which have been made since the restoration of democracy, there are still serious difficulties in investigating and in punishing those responsible for the hundreds of enforced disappearances that took place during the period of military Government. Although it has been possible to determine the fate of a number of those who disappeared, it is stated that only one case has reached the stage of final judgement within the judicial system, which is evidence of the serious difficulties still being experienced in securing the trial of those responsible.
121. With regard to article 18 of the Declaration, it has been stated that both the Decree-Law on Amnesty of 1978, which is currently in force, and the power to exert pressure still held by the security forces, as a result of the restrictions imposed by the military regime, are affecting the judicial system and are preventing the progress made in establishing the truth from leading to any possibility of punishing those responsible for enforced disappearances. In this connection, it is reported that, on 27 December 1994, the Supreme Court of Justice applied the 1978 Decree-Law on Amnesty in a trial in which the enforced disappearance of 70 persons was being investigated.
122. With reference to article 16, paragraph 2, of the Declaration, it has been reported that the Supreme Court is continuing to decide conflicts of competence in favour of the military courts when those reported to be responsible for enforced disappearances are members of the armed forces, the carabineros or the police. The military courts are said to be rapidly ordering the filing of cases under the 1978 Decree-Law on Amnesty, without carrying out the necessary investigation of the evidence.
123. It is reported that the most important step taken in recent months to establish criminal responsibility was the conviction of General Manuel Contreras Sepúlveda (retired) and Brigadier Pedro Espinoza Bravo, in the assassination of Orlando Letelier, former Minister of Foreign Affairs, assassinated in Washington in 1976. The outcome of this case is said to have reinforced the autonomy and independence of the judiciary.
124. With reference to article 19 of the Declaration, it is reported that the National Agency for Compensation and Reconciliation, established in February 1992, has continued to grant financial compensation to the relatives of victims of enforced disappearances mentioned in the report of the National Truth and Reconciliation Commission of 1991 (the Rettig Report). This compensation consists primarily in the granting of monthly pensions, accommodation in low-cost housing and scholarships, authorized under the 1992 Compensation Law.
125. During the period under review, the Government of Chile sent replies on seven individual cases of disappearance, in which it informed the Working Group that the death of these persons had been judicially established through legal testimonies, even though their remains could not be found. In four cases, the Government reported that the investigation carried out by the National Agency for Compensation and Reconciliation concluded that the fate suffered by these persons had been one of extrajudicial executions by forces belonging to the carabineros de Chile, and by civilians. Their corpses were seen floating in a river. Investigations carried out by judges in the courts of first instance had been dismissed in 1981 by military courts in pursuance of Legislative Decree No. 1291 concerning amnesty. With regard to the three other cases, the Government reported that, despite not having been able to establish the final whereabouts of the remains of these persons, the investigations carried out by the National Agency for Compensation and Reconciliation concluded that they were victims of extrajudicial executions carried out by military personnel and carabineros. These persons were taken to a bridge, shot and their bodies thrown into a river. A number of witnesses stated that they had seen the bodies floating. Lastly, the Government reported that there is an ongoing judicial investigation into the personal responsibility of the servicemen concerned for the offences committed.
126. The Government of Chile also sent a reply to the allegations received by the Working Group and submitted to it on the obstacles encountered in the application of the Declaration on the Protection of All Persons from Enforced Disappearance at the national level. This information supplemented the background material in the Working Group's possession on the work and powers of the National Agency for Compensation and Reconciliation. The Government reported that the National Agency, under its charter, is required to promote and contribute to actions designed to determine the whereabouts and the circumstances surrounding the disappearance of missing detainees and of persons whose remains have not been located despite the existence of legal recognition of their death. Given its legal terms of reference, it has had to distinguish between presumption and proof as regards the fate of the victims and the circumstances surrounding their disappearance, on the basis of the final whereabouts of their remains. Numerous investigations carried out by the National Agency have led it to the conclusion that, apart from the circumstances of the victims' fate and the causes of their disappearance, it will not always be possible to determine the final whereabouts of their remains. Factors such as the passage of time, the occurrence of irreversible physical events and, in most cases, the total lack of background information justifying further investigation, constitute the main obstacles to the National Agency's tasks of finding the remains of victims so that they can be recovered by their families.
127. The National Agency is required to bear in mind at all times, while carrying out its duties, that the right of family members to locate the remains of persons reported missing is an inalienable right. Consequently, irrespective of the declared opinion of the Agency or any other Statecontrolled body that it is reasonable to consider that the circumstances of the fate suffered by a victim have been elucidated, the right of the families to find their remains, and hence the obligation of the State - and of the Agency - to promote efforts conducive to that aim, is not precluded, exhausted or forfeited. Every case has to be resolved separately, paying attention to its specific characteristics and in the light of the background information compiled by independent research. According to the National Agency, it is not possible at present to lay down strict or preestablished parameters or criteria on the subject. The Agency takes a decision on each case only after its investigations have been completed, conscientiously giving due weight to the whole range of material assembled before making a pronouncement.
128. The Government further reported that the National Agency is required by law to maintain absolute reserve regarding its investigations so long as they have not been definitively completed. For this reason, it is not always able to supply to the relatives comprehensive information about the subject of the investigation, the facts ascertained and the final conclusions drawn in each situation once all the possibilities of investigation have been exhausted. Lastly, in the Agency's opinion, the recording of the death of a victim in the relevant register is not the only factor to be considered in reaching a decision on a case. Indeed, its conclusions are adopted on the basis of all the background material, clues and presumptions it has succeeded in putting together in the course of its investigations. More than 68 cases in the Agency's archives continue to be classified as special investigations into unresolved cases of missing detainees, even though - according to the relevant public register - they are regarded as deceased by virtue of court declarations of presumed death. In only 13 of these cases has it to date been concluded that the circumstances of the fate of the victims or the final whereabouts of their remains have been ascertained.
129. At its fortyseventh session, the Working Group met with representatives of the Government of Chile and engaged in an exchange of views with regard to the best way to deal with the very old cases which remain on its books.
Observations
130. The Group appreciates the cooperation of the Government of Chile and is supporting and following with interest the efforts being made by the National Agency for Compensation and Reconciliation to determine the whereabouts of disappeared persons, and in particular to compensate the family members of victims in accordance with article 19 of the Declaration on the Protection of All Persons from Enforced Disappearance.
131. Nevertheless, the Group notes with concern that certain interpretations of the 1978 Amnesty Law by the judicial system are seriously undermining the Chilean State's ability to comply with its international obligation to conduct investigations "thoroughly and impartially" (art. 13) "for as long as the fate of the victim of enforced disappearance remains unclarified" (art. 13, para. 6). The Group is similarly concerned by the continuing tendency to refer to the military courts cases involving the criminal investigation of persons alleged to have perpetrated an act of enforced disappearance, since such action is at variance with the provisions of article 16, paragraph 2, of the Declaration, which specifically states that acts of this nature shall not be tried by military courts.
132. During the period under review, the Working Group transmitted to the Government of China three newly reported cases of disappearance, all of which allegedly occurred in 1995. All three cases were transmitted under the urgent action procedure. During the same period, the Working Group clarified 21 cases; 19 on the basis of information previously submitted by the Government, and 2 in which the source had established the whereabouts of the persons concerned.
133. Most of the 56 cases of disappearance reported to have occurred in China took place between 1988 and 1990. The majority of the persons alleged to have disappeared were Tibetans engaged in activities in favour of Tibetan independence. Reportedly, some of them disappeared after being arrested for writing or singing national poems or songs. Nineteen of these cases concerned a group of Tibetan monks who had reportedly been arrested in Nepal, interrogated by Chinese officials while in detention and, allegedly, turned over to the Chinese authorities at the Jatopani border. Other victims were human rights activists involved in pro-democracy activities. Three of the reported cases concerned persons who disappeared after the incidents in Beijing in 1989.
134. The newly reported cases of disappearance are said to have occurred in Tibet, and concern a sixyearold boy who was allegedly recognized as the reincarnation of the tenth Panchen Lama by the Dalai Lama on 4 May 1995, and the boy's parents, who are alleged to have been taken from their village by members of the police.
135. During the period under review, the Government of China provided information on six cases of disappearance, three of which had been clarified at the fortyfourth session of the Working Group; the other three concern the allegations of the disappearance of the boy who was reportedly recognized as the reincarnated Panchen Lama and his parents. In connection with the latter three cases, the Government submitted a lengthy reply in which it stated that "there has never been any case of ... kidnapping and disappearance of the family of the reincarnated child" and that the disappearance is a "mere fabrication by the Dalai Lama group" for political purposes. The process for selecting a reincarnated child was described. Since 1989, when the Panchen Lama passed away, the Government of China had been engaged in a search for the reincarnated child. Just as the selection process had entered its final stage, the Dalai Lama intervened by arbitrarily announcing his own choice. The Government stated that this was done for political purposes.
136. During the period under review, the Working Group transmitted 33 newly reported cases to the Government of Colombia, 16 of which occurred in 1995. Of these newly reported cases, 20 were transmitted under the urgent action procedure. During the same period the Group clarified two cases in which it was reported that the subject's body had been found.
137. In accordance with Commission on Human Rights resolution 1995/75, the Working Group sent four "prompt intervention" cables to the Government of Colombia on behalf of persons who had allegedly been subjected to acts of intimidation or harassment. These include members of the Association of Relatives of Disappeared Detainees, as well as relatives and witnesses to the arrest of persons subsequently disappeared who have publicly denounced the cases and given testimony before the judicial authorities.
138. The majority of the 949 reported cases of disappearance in Colombia have occurred since 1981, especially in Bogotá and regions where the level of violence is highest. Among them there are persons belonging to civic or human rights groups that had publicly denounced abuses by members of the security forces or paramilitary groups. The number of cases in the Working Group's files is much lower than the figures handled by the national nongovernmental organizations. This is due, to a large extent, to the fact that in many cases the persons are found dead a few days after the disappearance. With regard to other cases, it has not been possible for the relatives or acquaintances of the missing persons to establish a link between the disappearance and the activities of government forces or groups associated with them.
139. The cases transmitted this year occurred mainly in the departments of Antioquia (9), Caldas (5), César (5), Norte de Santander (4), Valle (3), Santander (2), Atlántico (1), Bolívar (1), Cauca (1), Córdova (1), Cundinamarca (1). The forces alleged to be responsible were the Army (15), the police (6), paramilitary groups (6), men in plain clothes believed to be linked to security forces (4), the DHS (2).
140. During the period under review, a number of non-governmental organizations transmitted information of a general nature concerning the obstacles found in the application at the national level of the Declaration on the Protection of All Persons from Enforced Disappearance. With respect to articles 14 and 16 of the Declaration, it was stated that the continuous assignment of cases of human rights violations to the military jurisdiction facilitates impunity and that the Supreme Judicature Council, the body empowered to settle conflicts of jurisdiction between civil and military tribunals, usually decides in favour of the latter. It was also asserted that, in violation of the provisions of article 16.1 of the Declaration, officials accused of committing human rights violations are not suspended from their duties during the proceedings against them.
141. The armed forces continue to exercise judicial police functions under decree No. 1810 of 1992 and, therefore, to carry out detentions and raids. The decree is alleged to have facilitated acts of enforced disappearance and to have been used to hinder or divert investigations, becoming a source of impunity.
142. With respect to articles 5 and 19 of the Declaration, it was asserted that financial compensation may be obtained only in cases where there is a decision of the Human Rights Committee or of the InterAmerican Commission on Human Rights, followed by a conciliation procedure before an interministerial committee. If no agreement is reached, victims have no possible way to express their disagreement with the offer made by the Government. It was also reported that a recent bill laid before Congress would limit reparation to the granting of financial compensation.
143. It was asserted that, in violation of the provisions of article 13.4 of the Declaration, a campaign was recently launched to discredit the work of human rights nongovernmental organizations, it being claimed that their work promotes the objectives of guerrilla groups. That has forced the Association of Relatives of Disappeared Detainees (ASFADDES) to close its offices in Urabá and Ocaña. The atmosphere of hostility and intimidation has reportedly endangered the non-governmental organizations' work. It was also alleged that soldiers and police officers accused of human rights violations by members of non-governmental organizations generally responded by accusing the latter - in criminal proceedings - of aiding and abetting the commission of terrorist acts.
144. Regarding article 10.1 of the Declaration, it was mentioned that the Government recently issued decree No. 221 of 31 January 1995, article 2 of which permits detained civilians to be transferred to military facilities in prison emergencies. Military facilities were alleged, de facto, to be beyond all judicial control. This provision, therefore, allegedly facilitates acts of enforced disappearance.
145. It was stated that article 38 (f) of law No. 137 of 1994 authorizes the detention on remand, without a warrant from the judicial authority, of persons suspected of participating in or planning crimes, in circumstances of extreme urgency. It was asserted that this provision weakens individual guarantees against deprivation of liberty and may facilitate the enforced disappearance of persons.
146. It was stated that the remedy of habeas corpus has been drastically weakened by law No. 15 of 5 October 1992, article 2 of which provides that such remedy is available only within the relevant judicial proceedings. This, it is maintained, has prevented its being used outside judicial proceedings or in cases of illegal or arbitrary deprivation of liberty by a nonjudicial authority. This dilution of the remedy is said to explain why it was little used in 1994 and 1995.
147. Particular concern was expressed about the fact that General Alvaro Velandia Hurtado, who had been discharged on 6 July 1995 by the Office of the AttorneyGeneral because of his involvement in the enforced disappearance and homicide of Nydia Erika Bautista de Arellana, was decorated on 4 August 1995 by the Minister of Defence with the Meritorious Service Order. Subsequently, the Government informed the Working Group that, following a presidential decree, General Velandia had indeed been discharged.
148. During the period under review, representatives of the Government of Colombia meet with the Working Group at its fortyfifth session, during which it assured the Group of its full cooperation and reiterated its invitation to visit the country. The Government also transmitted information about the legal steps taken in connection with approximately 100 outstanding cases in order to find those responsible for the disappearance. In none of them, however, had the investigations yet come to final conclusions. It also submitted replies on a number of other individual cases in which it reported that in two cases the subject's body had been found; in one case the person concerned was in detention and two cases were under investigation. In addition, the Government informed the Working Group of a bill establishing mechanisms for compensation to victims of human rights violations in cases where a decision in this regard has been adopted by international human rights bodies. It also informed it about the establishment of a Commission which will study the follow-up to the recommendations included in the 1994 report on the visit to Colombia by the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture.
149. The Government of Colombia also addressed an invitation to the Working Group to visit the country. The Working Group agreed to undertake this visit in the course of 1996.
Observations
150. The Group expresses its appreciation for the cooperation of the Government of Colombia during the period under review. However, the Group is concerned by the nature of developments in Colombia throughout 1995, and in particular by the fact that the evolving situation reflects a large number of cases of disappearance. The Group understands the difficulties being encountered in the prevailing context of violence and recognizes the progress made by the Colombian State, noting in particular the activities of the Ombudsman. Nevertheless, what is happening serves to underline the urgency of adopting more appropriate policies to enable the Colombian State to fulfil its obligation to "take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance" in accordance with article 3 of the Declaration.
151. The Group draws attention to the need for full compliance with the obligation that persons alleged to have perpetrated any such acts should be tried by the ordinary courts and not military courts, in accordance with article 16, paragraph 2, of the Declaration. Similarly, it emphasizes the need to ensure full and effective recourse to habeas corpus so as to give effect to the international obligation to guarantee "a prompt and effective judicial remedy" (art. 9) as a means of preventing disappearances and determining the whereabouts of persons deprived of their liberty. Lastly, it urges the Colombian authorities to do everything in their power to ensure the safety of family members and witnesses in accordance with article 13, paragraph 3, of the Declaration.
152. As in the past, the Working Group continued to remain available to assist the Committee on Missing Persons in Cyprus (CMP). The Working Group noted that in 1995 the Committee, whose activities are based mainly on the testimony of witnesses and investigations in the field, held only two sessions of meetings at the end of the year, in November and December. Prior to the full resuming of the CMP activities, bilateral meetings between the Third Member and his Assistants, with both sides, took place on a regular basis to bridge existing differences.
153. The Working Group was informed that, throughout the year, the SecretaryGeneral of the United Nations had followed carefully the activities of the CMP. In his reports, he conveyed to the Security Council, on several occasions, his concern about the absence of progress in the work of the CMP, and that the continued support of the United Nations should depend on the cooperation of both sides in reversing this situation.
154. The Working Group welcomed the positive answer made by both sides to the letter of the SecretaryGeneral of the United Nations addressed to the two leaders on 17 May 1995 urging them to finalize the submission of all the cases of missing persons as well as to accept his proposal of criteria for concluding the investigations carried out by the CMP.
155. After having received all the cases, the CMP had the initial task of classifying them in broad categories, including cases with known witnesses and those with none. At this stage, the only meaningful basis for assessing whether the CMP is making progress is the extent to which the Committee will complete its work on the cases at a reasonable speed.
156. The Secretary-General has asked the Third Member to submit, by the end of December 1995, a full report on the situation at that time; on the basis of this report, the Secretary-General will consider the question of continued support by the United Nations for the Committee.
157. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of the Dominican Republic.
158. Of the two outstanding cases, one concerns a person who was arrested in June 1984 in Santo Domingo and who subsequently disappeared. The other concerns a university lecturer, who was also a journalist and political activist, and who was reportedly detained in May 1994 by members of the army and subsequently taken to a military base.
159. During 1995, the Government of the Dominican Republic submitted a reply concerning the case of the disappearance of the university lecturer, in which it was reported that all the necessary local investigations were being carried out in order to clear up this case. "By express order of the President of the Republic, the relatives of the missing person had been given every facility to visit police and military premises and hospitals. The Dominican Government was making serious efforts to find the missing person and the people of the country were offering their cooperation to ensure that this case is cleared up".
160. During the period under review, the Working Group transmitted three newly reported cases of disappearance to the Government of Ecuador, all of which reportedly occurred in 1995 and were sent under the urgent action procedure. During the same period, it clarified four cases, in which two persons were presumed dead and two others were found in detention. The Working Group also retransmitted to the Government one case, updated with new information from the source.
161. During the same period, in accordance with Commission on Human Rights resolution 1995/75, the Working Group sent a "prompt intervention" cable to the Government requesting protection for members of human rights organizations and relatives of missing persons who had allegedly been subjected to acts of intimidation and harassment, and for a former National Police officer whose testimony had been of particular importance in the judicial investigation of the disappearance of two children, and who was alleged to have been subjected to intimidation and to have received threats from members of the National Police.
162. The majority of the 20 reported cases of disappearance occurred between 1985 and 1992 and concerned persons who were reportedly arrested by members of the Criminal Investigation Service of the National Police. The disappearances occurred in Quito, Guayaquil and Esmeraldas. In three cases the victims were children.
163. Two of the cases which concerned children were clarified this year when the source reported that they were presumed dead. The source further informed the Working Group that in November 1994, the Ecuadorian Supreme Court of Justice of Ecuador sentenced seven officers of the National Police, including a retired director and two active duty generals, to prison terms ranging between 2 and 16 years, for being implicated in the abduction, torture and murder of these children. The Supreme Court also ordered three officials to be put on trial for having hindered the investigation into these cases. In accordance with its methods of work, the Working Group transmitted these cases to the Special Rapporteur on extrajudicial, summary or arbitrary executions.
164. The three newly reported cases concerned Peruvian citizens who were reportedly detained in January and February 1995 in the cities of Huaquillas, Loja and Otavalo.
165. During the period under review, the Government of Ecuador submitted information on three individual cases in which it reported that in two of them, the persons were found in detention and were being held by the Ministry of National Defence on charges of spying; these cases were subsequently clarified. In the third case, the person was reported to have left the country; this case is still pending.
166. During the period under review, the Working Group transmitted seven newly reported cases of disappearance to the Government of Egypt, two of which reportedly occurred in 1992, one in 1993 and four in 1994.
167. The majority of the eight previously reported cases of disappearance in Egypt occurred between 1988 and 1993. Amongst the victims were an alleged supporter of the Jihad organization and three citizens of the Libyan Arab Jamahiriya. The renewal of the state of emergency during this period, which reportedly gave free rein to the security forces without supervision or accountability, is said to have been an aggravating factor in the disappearances.
168. The newly reported cases concern four students, one civil servant and two others whose professions are not known. In five cases the security forces are alleged to be responsible for the disappearance, and in two cases responsibility is imputed to the police. Five of the persons concerned reportedly disappeared in the Sohag Governate, one in Cairo and one in the Daquouliya Governate.
169. During the period under review, no information was received by the Working Group from the Government of Egypt concerning the outstanding cases. The Working Group is, therefore, unable to report on the fate and whereabouts of the persons concerned.
170. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of El Salvador.
171. The majority of the 2,638 reported cases occurred between 1980 and 1983, in the context of the armed conflict between the Government of El Salvador and the Farabundo Martí National Liberation Front (FMLN). Many victims disappeared following arrest by uniformed soldiers, uniformed police or abduction in death-squad-style operations carried out by armed men in civilian clothing, reportedly linked to the army or to the security forces. Abductions by armed men in civilian clothing were, in some cases, subsequently recognized as detentions, which raised allegations of links with the security forces.
172. From 12 to 13 September 1995, one member of the Working Group, Mr. Diego García-Sayán, carried out a visit to El Salvador in order to undertake direct contacts with government authorities, the Ombudsperson, nongovernmental organizations and members of the United Nations Observer Mission in El Salvador (ONUSAL), with regard to the process of clarification of the great number of outstanding cases.
173. During the period under review, information of a general nature concerning the obstacles to the application of the Declaration on the Protection of All Persons from Enforced Disappearance at the national level was submitted to the Working Group. Concern was expressed that several recommendations of the Truth Commission, mainly those which referred to the compensation of the relatives of the victims of human rights violations, have not yet been implemented. Concern was further expressed about the large number of cases pending before the Working Group which remain unclarified.
174. It was pointed out that a request to the Legislative Assembly, submitted in 1990, to establish a commission of inquiry into enforced disappearance in order to establish the truth regarding the events and responsibility for them, remains unanswered. Neither the National Counsel for the Defence of Human Rights nor any government agency has been entrusted to investigate the reported cases of enforced disappearance and to promote or monitor the implementation of the Declaration. It was also reported that the 1993 Amnesty Decree-Law has been applied in such a way that it has allowed those responsible for enforced disappearances to go unpunished.
175. The Working Group continued to receive allegations concerning the deficiencies of the criminal investigation system and the observance of the due process of law. Notwithstanding the express recommendations made by the Commission on Human Rights, the Human Rights Division of ONUSAL and the Truth Commission, the judicial system remains inefficient.
176. The failure to comply with some of the recommendations of the Joint Group for the Investigation of Illegal Armed Groups, set up pursuant to an initiative by the Secretary-General with the support of the Security Council, was also reported. The Joint Group recommended, among other things, special judges and prosecutors to deal with organized crime and illegal armed groups. The resurgence of such groups is said to be a product of non-compliance with some of these recommendations.
177. There have also been complaints concerning the difficulty of access by the Salvadoran population to the remedies of habeas corpus and amparo, fundamental instruments that guarantee the protection of human rights.
178. Lastly, some non-governmental organizations expressed concern at the failure of the Government of El Salvador to disseminate and promote the Declaration in accordance with paragraph 2 of General Assembly resolution 47/133 of 18 December 1992.
179. In 1995, no new information was received from the Government of El Salvador with regard to the outstanding cases. The Group is, therefore, still unable to report on the fate or whereabouts of the disappeared persons.
Observations
180. The Group notes that the matters covered by its mandate are evolving in a positive manner. It is encouraging to note that not a single case of enforced disappearance has been recorded since 1992 and that the human rights situation in general has tended to improve. However, it is concerned by the activities of organized crime and their possible implications for the enjoyment of human rights. Effective action to curb such activities, which could create a climate conducive to the perpetration of human rights violations, calls for the investigation of politically motivated illegal armed groups, in particular those concerning judges and special procedures.
181. The Group is also concerned by the fact that little has been done to clarify outstanding cases in accordance with the Salvadoran State's international obligation to have complaints investigated "thoroughly and impartially" (art. 13) "for as long as the fate of the victim of enforced disappearance remains unclarified" (art. 13, para. 6). The Group expresses the hope that suitable coordination between the Government of El Salvador, the government procurator's office for the protection of human rights and family members of disappeared persons will make progress in this direction possible as well as in connection with related compensation matters in accordance with article 19 of the Declaration.
182. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Equatorial Guinea.
183. The three reported cases of disappearance concern members of political opposition parties who were reportedly arrested in Malabo on 9 and 10 August 1993. The police authorities, however, have reportedly refused to disclose any information on their whereabouts.
184. Although several reminders have been sent, no information has been received by the Working Group from the Government of Equatorial Guinea on the three outstanding cases. The Working Group is, therefore, still unable to report on the fate and whereabouts of the disappeared persons.
185. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Ethiopia. During this period, the Working Group considered clarified one case which occurred in 1994 and in which the Government reported that the person concerned had been released from detention. The Working Group also retransmitted one case, updated with new information from the source.
186. The majority of the 101 cases of disappearance reported to the Working Group occurred between 1991 and 1994 under the Transitional Government, and concerned members of the Oromo ethnic group suspected of participation in the Oromo Liberation Front who were arrested in Addis Ababa or disappeared from the military detention camp Hurso in western Ethiopia. Other cases concerned members of the Ogaden National Liberation Front (a political party) who disappeared in Region Five in eastern Ethiopia, also known as the Ogaden, an area reportedly inhabited by ethnic Somalis and in which there were reports of fighting by elements of the Ogaden National Liberation Front. Some 30 other cases occurred between 1974 and 1992 after the military Government took power, and concerned mainly, although not exclusively, high-ranking officials of Emperor Haile Selassie's Government and members of the Oromo ethnic group, in particular those believed to be involved with the Oromo Liberation Front, or persons accused of involvement with opposition political groups, including the Ethiopian Socialist Movement.
187. During the period under review, information of a general nature was received from non-governmental organizations. Serious concern was expressed to the Group about obstacles reportedly imposed by the Transitional Government of Ethiopia to the monitoring of human rights violations, including disappearances, in the country. It was reported that some local human rights organizations, especially those actively involved in receiving complaints, documenting abuses, and publishing their findings, have been denied formal registration, and hence their ability to operate has been restricted. It is further reported that when the denial to renew registrations was contested in court, members of the organization concerned were subjected to reprisals by the Government.
188. During the period under review, the Government of Ethiopia provided information on 55 individual cases of disappearance, in which it reported that in 39 of the cases "it is confirmed" that the subjects were not arrested in any part of the country and that "no evidence could be found indicating that" they "might have been disappeared". With regard to the remaining 16 cases, the Government reported that the subjects were not imprisoned at the Hurso military camp and that no evidence of their alleged disappearance can be found.
189. The Government also stated "that it had carried out an extensive inquiry in order to identify and clarify each and every case. However, due to the very complex nature of the accusations and especially the lack of ample evidence, no clear information could be obtained on the majority of accusations". It further stated, with regard to these cases, that a "deliberate and systematic system of misinformation" had been used for political purposes in order to discredit the Government. It expressed its disappointment that the submitting organization had made little effort to investigate the validity of its sources before transmitting the cases to the Working Group and said that the accusations were biased and partial.
190. The Government also informed the Working Group that the Constituent Assembly had adopted a new constitution which guaranteed fundamental human democratic rights, established the rule of law and provided for the establishment of a Human Rights Commission and the institution of Ombudsman.
Observations
191. The Working Group appreciates the cooperation received from the Government of Ethiopia. Nevertheless, it remains concerned that the efforts of the Government so far have not resulted in the clarification of the whereabouts of the persons reported as disappeared. The Working Group wishes to remind the Government of Ethiopia of its obligations under the Declaration to thoroughly investigate all allegations of disappearances and to bring the perpetrators to justice.
192. The Working Group further express its concern at the reported cases of reprisals by the Government against local human rights organizations and, in this connection, refers to article 13.3 of the Declaration which states that "steps shall be taken to ensure that all involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigations, are protected against ill-treatment, intimidation or reprisal".
193. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Greece.
194. The two outstanding cases were transmitted to the Government in 1993 and concern Albanian cousins who were reportedly taken by the police in Zagora the same year. The Government informed the Working Group in 1993 that the persons in question had never been arrested by the police, but that they were continuing investigations.
195. During the period under review, no new information was received from the Government of Greece with regard to these two cases. The Working Group is, therefore, still unable to report on the fate or whereabouts of the disappeared persons.
196. During the period under review, the Working Group transmitted to the Government of Guatemala, under the urgent action procedure, seven newly reported cases of disappearance, three of which occurred in 1994 and four in 1995. During the same period, the Working Group considered clarified six cases. It also retransmitted to the Government one case, updated with new information from the source.
197. In accordance with Commission on Human Rights resolution 1995/75, the Working Group sent a "prompt intervention" cable to the Government of Guatemala requesting protection for the prosecutor appointed to investigate the case of the disappearance of Efrain Bamaca, a leader of the armed opposition, for Mr. Bamaca's wife and for a former soldier who testified that he had seen Bamaca in custody at a military base, after the army reported his death in combat. Both the prosecutor and the former soldier had allegedly received continuing death threats. Mr. Bamaca's wife was reportedly confronted by approximately 40 people sent to the proposed exhumation site to intimidate her.
198. Concerned about the number of disappearances in Guatemala, the Working Group undertook a visit to that country in 1987. The observations included in the 1987 report on that mission (E/CN.4/1988/19/Add.1) referred in particular to the efforts that should be made to improve the functioning of the habeas corpus procedures, to protect the life of witnesses, as well as of persons and organizations reporting cases, and to adopt convincing measures to prevent and clarify disappearances.
199. It should be noted that, although the number of reported cases has declined notably since 1991, disappearances have become more selective in recent years and have mainly affected trade unionists, student leaders, journalists and human rights defenders.
200. The majority of the 3,151 reported cases of disappearance in Guatemala occurred between 1979 and 1986, in the context of the Government's fight against the Unidad Revolucionaria Nacional Guatemalteca (URNG). Their characteristics have been described in detail in the Group's previous reports.
201. The seven newly reported cases concern a leader of the indigenous rights group Council of Ethnic Communities Runujel Junam who was reportedly arrested in October 1994 in Guatemala City by members of the National Police; two members of the National Movement of Settlers (MONAP) who were reportedly detained in January 1995 by members of the Military Intelligence Service (G-2) in Guatemala City; two persons detained in November 1994 by members of the army in Jutiapa City and in the Municipality of San Luis, respectively; a pastor in the Presbyterian Church and member of the human rights organization Defensoría Maya reportedly detained in June 1995 in the Department of Sacatepequez by members of the army, and a 22-month-old baby, nephew of the Guatemalan Nobel Peace Prize Laureate Rigoberta Menchú Tum, abducted in November 1995 in Guatemala City.
202. Five of these cases were subsequently considered clarified by the Working Group. The corpse of the pastor in the Presbyterian Church was found with signs of torture. The two members of the MONAP were found alive, and the person who disappeared in Jutiapa City was found in detention in the Military Zone No.10 headquarters in Jutiapa with signs of having been subjected to torture. The first and the fourth cases were subsequently transmitted by the Working Group to the Special Rapporteur on extrajudicial, summary or arbitrary executions and on the question of torture, respectively. With regard to the case of the nephew of Rigoberta Menchú, the child reappeared alive. One other case, which occurred in 1992, was also clarified when the source reported that the person concerned was currently free and living in the United States.
203. During the period under review, information of a general nature concerning obstacles to the application of the Declaration on the Protection of All Persons from Enforced Disappearance was received from non-governmental organizations. The phenomenon of impunity was considered as the most serious obstacle to the enjoyment of human rights in Guatemala. Several nongovernmental organizations expressed concern that the majority of those responsible for violations of human rights have not been identified, prosecuted and punished by the State. The defective functioning of the administration of justice, of the Public Prosecutor's Office and of the security forces responsible for preventing and punishing crime was pointed out. Attention was drawn to the professional and technical shortcomings with regard to the conduct of criminal investigations. It was noted that the system for the administration of justice is simply not working. Some criminal court judges who have shown a willingness to investigate complex cases are said to have been transferred. In addition, the Public Prosecutor's Office reportedly does not have a policy governing criminal investigations, and there is said to be a lack of coordination between the Public Prosecutor's Office and the National Police.
204. Concern was expressed at the increase in political and social violence and the ineffectiveness of the State institutions responsible for investigating and punishing human rights violations, including enforced disappearances. Grave concern was also expressed about the many unsolved cases of enforced disappearance. It was reported that the work of the courts investigating cases of disappearance suffers from numerous flaws, such as delays in proceedings, failure to notify in writing the military authorities accused by the plaintiffs and failure to appear at the places indicated in the summons. There have been substantive judicial proceedings in only a few cases. In most of the cases, action and inquiries which could and should have been undertaken in a timely manner were not. The court's response reportedly continues to be excessively slow and is said to be hampered both by outside pressures on the Public Prosecutor's Office and the judiciary, and by the inherent failings of these bodies.
205. It was further reported that the competent authorities often do not conduct investigations, even when they know of the perpetration of enforced disappearances, until a complaint is filed. In cases that are reported, they only take procedural steps which do not allow the investigation to progress and the guilty parties to be identified.
206. Complaints have been made about numerous cases of pressure and intimidation against officials of the judiciary and the Public Prosecutor's Office. It was alleged that the Government has not taken any steps to resolve this problem. More than 20 judges have reportedly complained to the Supreme Court about receiving death threats. It was also said that, since agents of the State are involved, prosecutors show undue reluctance to undertake an investigation for fear of possible reprisals. Military authorities have been denounced in the press for pressure brought against judges, prosecutors and policemen.
207. It was stated that fear of the army permeates the judicial system, rendering it dysfunctional in resolving disappearances. It was further reported that no measure has been adopted in order to compensate and assist the relatives of victims of enforced disappearance, in contravention of article 19 of the Declaration.
208. At its forty-sixth session, representatives of the Government of Guatemala met with the Working Group and it provided information on 39 individual cases of disappearance. Three cases were considered clarified on the basis of the information provided by the Government in which it stated that the persons concerned had been released and were living at liberty in their homes. Five cases, in which the Government reported that three persons were found dead and two others had been released and were living at liberty at their homes, will be considered clarified if the source does not contest information within a period of six months. The information provided on 31 cases was considered by the Working Group insufficient to constitute a clarification.
209. The Government of Guatemala also informed the Working Group of the action it had taken to implement the provisions of the Declaration on the Protection of All Persons from Enforced Disappearance. The Government reported that, on 22 July 1995, Congressional Decree No. 48-95, which contains two amendments to the Penal Code, entered into force. According to the amendments, anyone who commits the crime of enforced disappearance shall be sentenced to 25 to 30 years in prison. The death penalty shall be imposed in lieu of the maximum prison sentence when, because of or as a result of the enforced disappearance, the victim is seriously or critically injured, experiences permanent mental or psychological trauma or dies. The crime is considered to continue as long as the victim has not been released. The Government stated that the reform of the Penal Code is a part of its commitment against impunity contained in the Comprehensive Agreement on Human Rights signed with the URNG on 29 March 1994.
210. The Government further stated that notices of presumed disappearances are piling up as a result of regrettable past actions, many of which occurred under the cover of the internal armed confrontation that had torn the country apart for more than three decades. The Government is most interested in establishing the truth of allegations regarding acts characterized as enforced or involuntary disappearances and shares the anguish of the relatives. In order to deal with this problem, it is making the greatest efforts to determine the victims' whereabouts through coordinated action by the competent bodies and will provide the Working Group with the necessary information.
Observations
211. The Group wishes to express its appreciation for the cooperation of the Government of Guatemala. Although the context of violence and impunity continues to be of concern to the Group and the international community in general, it is worth noting that the number of enforced disappearances has declined. It is also noteworthy that the offence of enforced disappearance was defined in connection with the reform of the Penal Code in July. Nevertheless, there is still a need to adopt more effective measures to prevent and terminate acts of enforced disappearance, in accordance with article 3 of the Declaration.
212. Impunity is a factor that contributes to enforced disappearances and violations of human rights in general. Efforts to put an end to such impunity are an obvious priority in the light of Guatemala's international obligations, compliance with which requires "a prompt and effective judicial remedy" (art. 9 of the Declaration) and competent and independent State authorities that carry out investigations "thoroughly and impartially" (art. 13, para.1), and for this reason it is vital that "steps shall be taken to ensure that all involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigation, are protected against ill-treatment, intimidation or reprisal" (art. 13, para. 3).
213. During the period under review, no new cases of disappearance were transmitted by the Working Group to the Government of Guinea.
214. The majority of the 28 reported cases in Guinea occurred in 1984 and 1985 in the context of a coup d'état. It may be noted that the Working Group has received no reports of disappearances occurring in Guinea after 1985.
215. During the period under review, no new information was received from the Government of Guinea with respect to the outstanding cases. The Working Group is, therefore, unable to report on the fate and whereabouts of the disappeared persons.
216. During the