Cifuentes Elgueta v. Chile (Admissibility)
The Committee noted that although the victim’s disappearance occurred after the entry into force of the Covenant for the State, this was not true with respect to the Optional Protocol to the Covenant, reaffirming that the latter cannot be applied retroactively unless the acts that gave rise to the complaint continued after its entry into force. Departing from its previous findings, the Committee found the communication inadmissible ratione temporis, holding that the original act of deprivation of liberty and the subsequent refusal to give information about the whereabouts of the victim occurred prior to the entry into force of the Optional Protocol for the State, and that there was no evidence of any action of the State after this date that would constitute a perpetuation of the enforced disappearance of the victim. It also added that, even though enforced disappearance can be considered a continuing offence, the declaration on the Committee’s competence ratione temporis made by the State at the time of its accession needed to be taken into account. In their individual dissenting opinions, some members of the Committee disagreed with the finding of inadmissibility ratione temporis, arguing that a disappearance inherently has a continuing character because of the continuing violative impact it has on Covenant rights, irrespective of at what point in time the acts constituting the disappearance occurred. They also held that the State's declaration was not compatible with the Covenant's aim, object and purpose, and that the case should have been declared admissible.
July 28, 2009
Facts of the Case
Mr. José Alejandro Campos Cifuentes, leader of a Revolutionary Left Movement, turned himself in to the authorities and was sentenced by a military court to 15 years in prison on charges of high treason in October 1973. His sentence was later commuted to exile, and he left Chile. After seven years, he requested permission to return to his country, but permission was denied. In February 1981, Mr. Cifuentes attempted to enter Chile using false identities. He was arrested by Argentine gendarmes who allegedly turned him over to the Chilean police. The victim’s whereabouts since that day remain unknown, but Mr. Cifuentes' mother has unofficial information indicating that her son was killed by Chilean security forces. Despite a number of complaints, no official investigation was conducted on Mr. Cifuentes' disappearance. In 1991, the National Truth and Reconciliation Commission submitted a report in which Mr. Cifuentes is listed as a disappeared detainee. The Optional Protocol to the International Covenant on Civil and Political Rights entered into force for Chile in 1992. The ratification was accompanied by a declaration restricting the Committee’s competence to acts occurring after the entry into force of the Optional Protocol for the State.