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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Prosecutor v. Rašević and Todović
The Court held that enforced disappearance is a relatively “new” crime, both in itself and as a crime against humanity, and that although its status is not specifically defined, the systematic practice of enforced disappearance constituted a crime against humanity under customary international law at the time of the conflict. The Court found the detainment facility's personnel responsible for transferring detainees to the control of the Bosnian Serb military and military police, holding that the act of taking detainees out of the detention facility to an unknown location met the elements of the offense of enforced disappearance, and that these ...click to read more
Systemic Practice | Refusal to Disclose Fate | Crimes Against Humanity
Bitiyeva and X v. Russia
The Court found the victim's detention to be arbitrary and in total disregard of the requirement of lawfulness. It stressed the violation of the domestic procedural requirements relating to the detention of criminal suspects in light of the fact that no charges were brought against the victim, no decision to detain or to release her was given by a competent authority, and her detention was not formally linked to any criminal investigation, nor did she benefit from the procedural safeguards applicable to persons deprived of their liberty. The Court also highlighted how the violation of the victim's detention rights derived ...click to read more
Deprivation of Liberty | Evidence | Relatives as Victims | State/Non-State Agents | Reparations | Interim/Urgent Measures | Burden of Proof | Women and Girls
General Comment on the definition of enforced disappearance
In its effort to define enforced disappearance, the Working Group paid attention to definitions provided by other international human rights instruments. The General Comment notes that enforced disappearance must be distinguished from other types of offences such as abduction and kidnapping and therefore the Working Group considers only cases related to acts of enforced disappearance. Such acts might be initiated by a legal detention or arrest followed by an extrajudicial execution without disclosure of the whereabouts of the person.
State/Non-State Agents
El Hassy v. Libyan Arab Jamahiriya
Recognising the suffering involved in being held indefinitely without contact with the outside world and reaffirming that the burden of proof cannot rest on the applicant alone, the Committee made a finding of inhuman treatment with respect to the victim due to his repeated incommunicado detention and to his enforced disappearance, and with respect to his brother due to the anguish and stress caused by such disappearance. It also found that the victim's treatment in prison amounted to torture. The Committee also found a violation of the right to liberty and security in light of the fact that the victim ...click to read more
Deprivation of Liberty | Evidence | Refusal to Disclose Fate | Relatives as Victims | Right to Know the Truth | Effective Remedy | Duty to Investigate | Duty to Prosecute | Burden of Proof
Baysayeva v. Russia
Taking into account the context of the conflict in Chechnya, the Court held that when a person was detained by unidentified State agents without any subsequent acknowledgment of such detention, this could be regarded as life-threatening. It concluded that the victim should be presumed dead following unacknowledged detention by State servicemen, and found the State responsible for his death. The Court also found that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the victim's disappearance and presumed death. The Court was not able to conclude that the victim was subjected to ill-treatment, but made ...click to read more
State/Non-State Agents | Effective Remedy | Duty to Investigate | Duty to Prosecute | Deprivation of Liberty | Systemic Practice | Relatives as Victims | Right to Know the Truth
Chuschi Case
The Court recalled how the crime of enforced disappearance was defined by national law as a crime against humanity violating fundamental human rights and the very essence of human dignity. It also highlighted the specific characteristics of the crime, which involves not only a person’s deprivation of liberty by State agents, but also the systematic concealment of the detention in order to keep the victim’s whereabouts unknown. The Court recalled how an enforced disappearances is a continuous offence, as an unlawful situation is caused by an act, the continuation of which depends on the will of the perpetrator. The Court ...click to read more
Deprivation of Liberty | Judicial Protection | Refusal to Disclose Fate | Children/Youth
Monasterios Pérez
The Court highlighted the constitutional character of the prohibition against enforced disappearance, stemming from international instruments applicable to Venezuela and from the letter of the Constitution itself. The Court held that enforced disappearance is a multi-offensive crime, as it violates several fundamental rights, and stated that the systematic or generalised practice of enforced disappearance against the population is a crime against humanity. It recalled that under the Constitution, crimes against humanity are not subject to statute of limitations and perpetrators cannot be granted any benefit leading to impunity. The Court held that enforced disappearance are permanent, adopting the definition contained ...click to read more
Deprivation of Liberty | Refusal to Disclose Fate | Crimes Against Humanity
Prosecutor v. Šimšić (Appeal)
The Court made a finding of persecution as a crime against humanity in conjunction with the crime against humanity of enforced disappearance, in light of the fact that the criminal acts were directed exclusively against the Bosniak population. It held that enforced disappearance constituted a crime against humanity under customary international law at the time of the conflict under the general category of "other inhumane acts". The Court further held that the actions of enforced disappearance were indisputably criminal offences at the time of their commission, and that they acquired the characteristics of "war crimes" in time of war. It ...click to read more
Deprivation of Liberty | Systemic Practice | Crimes Against Humanity
Magomadov and Magomadov v. Russia
The Court found that the failure of authorities to take prompt steps to investigate allegations of unlawful detention may have contributed to the likelihood of the disappearance, gave rise to a strong presumption of acquiescence on the authorities' behalf, raises strong doubts about the objectivity of the investigation, and amounted to a failure to take prompt and effective measures to protect the victim.
Duty to Investigate | Obligation to Prevent | Systemic Practice
El Alwani v. Libyan Arab Jamahiriya
The Committee found that the victim was subjected to arbitrary arrest and detention, reaffirming its view that in cases where further clarification of the allegations depends on information exclusively in the hands of the State, it is possible to consider such allegations substantiated in the absence of satisfactory evidence to the contrary presented by the State. The Committee made a finding of inhuman treatment with respect to the victim both in relation to the disappearance, which prevented him from making any contact with his family or the outside world, and in relation to his treatment and the allegations that he ...click to read more
Refusal to Disclose Fate | Relatives as Victims | Effective Remedy | Duty to Investigate | Duty to Prosecute | Burden of Proof | Deprivation of Liberty | Evidence