Jurisprudence Database
The Jurisprudence Database sets out leading judgments and commentary by international and domestic legal mechanisms in the field of enforced disappearances. It summarises factual and legal findings and identifies common themes and search terms allowing for a comparative cross-jurisdictional analysis of this area of law. Users can search the source bank through a filter-based or key-term search and access text in English, Spanish, Russian and French.
Search the PDF content in documents uploaded to the Enforced Disappearance Legal Database.
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Gelman v. Uruguay
The Court found that a child born while her mother and father were victims of enforced disappearance was herself a victim of enforced disappearance from the time of her birth until the moment she discovered her true and legitimate identity. The Court found that the violation of her right to psychological integrity occurred when she discovered her true identity and had to face the truth of what happened to her and her parents. The Court noted that the child's mother was in a condition of particular vulnerability which caused her to be affected in a differential way, as she was pregnant ...click to read more
Juridical Personality | Right to Know the Truth | Reparations | Children/Youth | Women and Girls
Iskandarov v. Russia
The Court reaffirmed that when factual elements lie within the exclusive knowledge of the authorities, the burden of proof is shifted to the State to provide explanations. The Court was thus satisfied that the victim was arrested by Russian State agents and that he remained under their control until his transfer to the Tajik authorities. It found that his removal to Tajikistan was in breach of Russia's obligation to protect him against risks of ill-treatment. The Court also argued that the victim's transfer could not be considered as a mere restriction of his freedom of movement as it was imposed ...click to read more
Burden of Proof | Deprivation of Liberty | Evidence | Refugees and Migrants | State/Non-State Agents | Extraterritorial Jurisdiction | Reparations
General Comment on enforced disappearance as a continuous crime
The General Comment clarifies the continuous nature of enforced disappearances including that enforced disappearances should be viewed as a crime for as long as all elements of the crime are not complete and that provisions that negatively affect the continuous nature of the violations should be interpreted narrowly. Therefore the Member States hold responsibility for enforced disappearance violations that occurred even before the entry into force of the instrument due to the fact that enforced disappearance is a consolidated act and should not be fractured.
Duty to Investigate | Admissibility | Statute of Limitations
General Comment on the right to the truth in relation to enforced disappearance
The right to know the truth is recognised under various provisions of international law. This entails the right to know about the progress of the investigation, the fate of a disappeared person, the circumstances of the act of disappearance, and the identity of perpetrators. States have an obligation to provide full access to information about the whereabouts of the disappeared person and the investigation procedure to any interested party, primarily to family and relatives. Yet the latter is subject to a limitation - findings of the investigation are not communicated in cases when the ongoing criminal investigation might be jeopardised. ...click to read more
Right to Know the Truth | Jus Cogens
Gomes Lund et al. (“Guerrilha Do Araguaia”) v. Brazil
The Court found that amnesty laws are expressly non-compatible with the ACHR, causing the laws in place at the time to lack legal effect. Further, the Court also elaborated its position regarding relatives' right to access information under Article 13 of the Convention. It held that a refusal to provide information must be accompanied by a well-founded response, and that it may not require the requester to prove the information sought exists, but that the state carries the burden of establishing denying access to this information. The state must act in good faith and diligently, particularly in cases of grave ...click to read more
Refusal to Disclose Fate | Right to Know the Truth | Duty to Investigate | Amnesties | Burden of Proof
Ibsen Cárdenas and Ibsen Peña v. Bolivia
The Court reiterated that the phenomenon of enforced disappearances requires a systematic and comprehensive analysis. This is due to the fact that enforced disappearances entail numerous behaviours which, for so long as they continue, permanently violate the legal rights protected by the Convention. The Court emphasised that the permanent nature of the enforced disappearance does not cease when it is claimed that the remains of a specific person have been found. Rather, this must be accompanied by the performance of tests or analyses that make it possible to establish that the remains do indeed belong to that person.
Deprivation of Liberty | Juridical Personality | Right to Know the Truth | Duty to Investigate | Duty to Prosecute | Admissibility
El Abani (El Ouerfeli) v. Libyan Arab Jamahiriya
The Committee made a finding of inhuman treatment both with respect to the victim, due to the fact that he was exposed to acts of torture, kept in captivity for nearly 18 years and prevented from communicating with his family and the outside world, and with respect to his family, due to the anguish and distress caused by his disappearance. The Committee also found a violation of the victim's right to liberty and security, as he was arrested without a warrant, held incommunicado without access to defence and not informed of the grounds for his arrest or the charges against ...click to read more
Evidence | Judicial Protection | Juridical Personality | Refusal to Disclose Fate | Relatives as Victims | Effective Remedy | Burden of Proof | Interim/Urgent Measures | Deprivation of Liberty
Benaziza v. Algeria
The Committee reaffirmed its position that the State should not invoke national legislation prohibiting the opening of proceedings on cases of disappearance happened during the period defined as "National Tragedy" against those who invoke the provisions of the Covenant. It made a finding of inhuman treatment with respect to both the victim and her sons. The Committee further considered that when a person is arrested by the authorities and there is subsequently no news on his/her fate and no investigation is carried out, this omission on the part of the authorities amounts to removing the disappeared person from the protection ...click to read more
Deprivation of Liberty | Evidence | Judicial Protection | Juridical Personality | Relatives as Victims | Effective Remedy | Duty to Investigate | Duty to Prosecute | Women and Girls | Amnesties | Burden of Proof
Chitay Nech et al. v. Peru
The Court stated that the analysis of a possible enforced disappearance should not focus on the detention, the possible torture, or the risk of losing one's life, as such an approach is fragmented. Instead, the focus should be on the group of facts which are presented in the case, taking into account relevant legal standards and jurisprudence. The Court confirmed that the enforced disappearance aimed at suppressing the exercise of the political rights of the victim and the Mayan community, dismantling their political representation. The Court recalled that the State must regulate the exercise of these rights and their application under ...click to read more
Right to Know the Truth | Obligation to Prevent | Indigenous Peoples
Bordaberry Arocena
The Court held that the accused, as the President of the Republic, could not have been unaware of the systematic practice of violations of human rights during the time of his presidency. This was due not only to the fact that international organisations repeatedly reported the abuses committed by the military in the country, but also to his specific position as member of the National Security Council, which would have allowed him to request information on the situation of the detainees and, where appropriate, take measures to stop the violations. The Court considered it likely that the accused was aware ...click to read more
Jus Cogens | Systemic Practice | Crimes Against Humanity