Ending enforced disappearances on the territory of the Council of Europe
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 27 January 2022 (7th sitting) (see Doc. 15431, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr André Gattolin). Text
adopted by the Assembly on 27 January 2022 (7th sitting).See
also Recommendation 2223
(2022).
1. The Parliamentary Assembly deeply
regrets that enforced disappearances remain even today a frequent criminal
practice in the geographical area covered by the Council of Europe
and all over the world. It recalls its
Resolution 1371 (2004) “Disappeared
persons in Belarus” and deplores the fact that the four cases of disappearances
examined by the Assembly in 2004 still remain unpunished. The Assembly
also recalls its
Resolution
2067 (2015) and
Recommendation
2076 (2015) “Missing persons during the conflict in Ukraine”,
Resolution 2132 (2016) “Political
consequences of the Russian aggression in Ukraine”,
Resolution 2133 (2016) “Legal
remedies for human rights violations on the Ukrainian territories
outside the control of the Ukrainian authorities”,
Resolution 2198 (2018) “Humanitarian
consequences of the war in Ukraine” and
Resolution 2391 (2021) and
Recommendation 2209 (2021) “Humanitarian
consequences of the conflict between Armenia and Azerbaijan / Nagorno-Karabakh
conflict”. Finally, the Assembly refers to its
Resolution 2324 (2020) and its
Recommendation 2172 (2020) “Missing
refugee and migrant children in Europe” in which it had previously expressed
concern about the recent rise in cases of disappearances of migrants,
especially minors. The Assembly also expresses deep concern about
the unclear fate and whereabouts of the victims of enforced disappearance
on the territory of the Russian Federation and territories under
Russia's effective control, including the Autonomous Republic of
Crimea, the city of Sevastopol and parts of the Donetsk and Luhansk regions
(Ukraine).
2. The Assembly reiterates that enforced disappearances violate
numerous non-derogable and fundamental human rights and are equally
prohibited under international human rights law and international humanitarian
law, regardless of the nature and qualification of the armed conflict.
It reaffirms that no circumstances whatsoever, whether a threat
of war, a state of war, internal political instability or any other public
emergency, may be invoked to justify enforced disappearances and
that the widespread or systematic practice of enforced disappearances
constitutes a crime against humanity under general international
law.
3. The Assembly recognises that the uncertainty in which the
family and relatives of those missing live has a harmful psychological,
social, legal and economic impact on both the relatives and the
wider communities to which they belong. It emphasises that the practice
of enforced disappearances is equally alarming in times of peace
and during armed conflicts, but when occurring in the context of
warfare it also threatens stability and prevents lasting reconciliation
between the parties to a conflict, even when that conflict has long
ceased.
4. The Assembly is alarmed about the increasing number of cases
of enforced disappearance in the context of armed conflicts when
persons hors de combat captured
by opposing forces are placed outside the protection of the law
and disappear, instead of receiving appropriate protection under
international and domestic law.
5. The Assembly notes that, despite the efforts of the international
community and some local players, co-operation between the countries
concerned leaves something to be desired. In addition, investigations
at national level often remain inactive for a long time. It points
out that the passage of time does not prevent the identification
of bodies with modern DNA-based methods.
6. The Assembly points out that, in accordance with the case
law of the European Court of Human Rights (the Court), reflected
in the guidelines adopted by the Committee of Ministers in 2011,
States have an unconditional obligation to investigate all serious
allegations of violations of Articles 2 and 3 of the European Convention
on Human Rights (ETS No. 5, the Convention) and to punish such violations.
Yet several Council of Europe reports have highlighted the slow
and incomplete execution of the numerous judgments of the Court finding
“procedural” violations of Article 2 on the grounds that there has
been no serious investigation into enforced disappearances in several
States, particularly in the North Caucasus region in the Russian Federation.
7. The Assembly welcomes the entry into force, on 23 December
2010, of the United Nations International Convention for the Protection
of All Persons from Enforced Disappearance (ICPPED), which codifies
the fundamental principles of action against enforced disappearances.
The Committee on Enforced Disappearances created by the ICPPED has
a power of injunction, under the urgent action procedure, and may receive
“communications” from individuals or another State against States
Parties who have made a declaration under Articles 31 and 32 of
the ICPPED.
8. The Assembly considers that the ICPPED, in conjunction with
the UN’s Working Group on Enforced or Involuntary Disappearances
(WGEID) and also the International Commission on Missing Persons
(ICMP), the International Committee of the Red Cross (ICRC), regional
mechanisms such as the Committee on Missing Persons (CMP) in Cyprus,
and the case law of the European Court of Human Rights form a well-developed institutional
and normative framework. Rather than adding a new convention at
the level of the Council of Europe, steps should be taken to reinforce
the existing legal framework and better implement the good practices
recommended in those instruments in all the member States.
9. The Assembly also stresses the importance of the role of civil
society in this area, and in particular the strong solidarity and
vital psychosocial support provided by the associations of families
of missing persons. These deserve all the moral and financial support
that the international community can provide, and they must be protected
against pressure exerted by certain States.
10. The Assembly believes that the Council of Europe and its member
and observer States must play a major role in this context. European
States should exert their influence at international level and set
a good example, by ratifying the ICPPED and effectively implementing
the preventive and enforcement measures provided for in the aforementioned
instruments, in national legislation and practice. The Council of
Europe should support its member States in this endeavour, by co-ordinating
efforts and providing the necessary technical support.
11. The Assembly therefore invites all the member and observer
States that have not yet done so to:
11.1 sign and ratify the ICPPED and make declarations under
Articles 31 and 32, enabling the Committee on Enforced Disappearances
to examine individual and interstate communications, and promote
universal ratification of this convention, inter
alia, by joining the Group of Friends on the protection
of all persons against enforced disappearances of the ICPPED, launched
by France, Argentina and Morocco, or by setting up a Group of European
Friends of the ICPPED;
11.2 implement the preventive and enforcement measures recommended
in the ICPPED, including while ratification of this instrument is
pending,
inter alia, by:
11.2.1 making the crime of enforced disappearance a stand-alone
offence, defined in accordance with the ICPPED, within their national
criminal legislation and providing for sanctions commensurate with
the extreme seriousness of the crime;
11.2.2 introducing an effective means of habeas corpus;
11.2.3 ensuring that the statute of limitations, if applied in
respect of enforced disappearance, is long and proportionate to
the extreme seriousness of this offence, and takes into account
its continuous nature;
11.2.4 undertaking measures to prevent cases of enforced disappearance
based on racial or any other form of discrimination and duly investigating
any such cases;
11.2.5 providing effective measures to identify the perpetrators
of enforced disappearance;
11.2.6 creating centralised detention registers;
11.2.7 making prison release protocols mandatory;
11.2.8 prohibiting incommunicado detention and clandestine detention
centres;
11.2.9 establishing protocols for documenting unidentified human
remains;
11.2.10 avoiding sending people back to countries where they risk
becoming victims of enforced disappearance;
11.2.11 providing suitable training for members of the security
and armed forces;
11.2.12 ensuring that their laws on adoption do not provide a
means of gaining control over missing children or children of missing
persons;
11.3 join the ICMP or support it in another way in its efforts
to provide technical assistance to any States requiring it;
11.4 sign and ratify the Optional Protocol to the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (OPCAT) and the Rome Statute of the International
Criminal Court, which cover certain aspects of the crime of enforced
disappearance.
12. The Assembly also invites all the Council of Europe's member
States and, where applicable, observer States to:
12.1 co-operate with one another
in criminal investigations into disappearances, using the relevant conventions
of the Council of Europe;
12.2 declassify documents and make available all relevant information
conducive to locating mass graves and clarifying the fate of missing
persons;
12.3 make the greatest possible use of the universal jurisdiction
authorised by, inter alia,
the ICPPED, the Convention against Torture and the Rome Statute,
to prosecute the perpetrators of crimes of enforced disappearance
committed in other countries;
12.4 pay particular attention to the execution of the Court's
judgments relating to cases of enforced disappearance and the relevant
provisional measures indicated by the Court, taking all the individual
and general measures necessary to resolve the cases concerned and
prevent further cases arising;
12.5 protect associations of families of missing persons from
any threats and provide them with financial backing in their efforts
to provide mutual psychosocial support, combat impunity and carry
out remembrance work;
12.6 impose sanctions against State bodies, State-controlled
groups and individuals that are implicated in cases of enforced
disappearance on the territories of the Council of Europe’s member States
or that are obstructing effective investigation into such cases;
12.7 support the idea of holding a world conference in 2022
on the topic of enforced disappearance, which would also provide
an opportunity for States to announce new ratifications of the ICPPED.
