A/HRC/19/58
punished as such‖. The same article also provides that States ―shall devote their efforts to
the search for and identification of such children and to the restitution of the children to
their families of origin‖.
4.
Even if the right to recognition as a person before the law is extinguished on
the death of the disappeared person, its effects may last beyond his/her death, in particular
with all matters related to inheritance. In addition, as the Working Group stated in its
General Comment on Enforced Disappearance as a Continuous Crime, ―[e]ven though the
conduct violates several rights, including the right to recognition as a person before the law,
(…) the Working Group considers that an enforced disappearance is a unique and
consolidated act, and not a combination of acts‖ with the consequence that ―even if some
aspects of the violation may have been completed before the entry into force of the relevant
national or international instrument, if other parts of the violation are still continuing, until
such time as the victim’s fate or whereabouts are established, the matter should be heard,
and the act should not be fragmented.‖ The violation of the right to recognition as a person
before the law therefore lasts until the disappearance ends, that is to say when the fate or
the whereabouts of the person have been determined.
5.
Enforced disappearances also entail violations of the rights of other persons,
including the next-of-kin and others connected to the disappeared persons. Family members
are prevented to exercise their rights and obligations due to the legal uncertainty created by
the absence of the disappeared person. This uncertainty has many legal consequences,
among others on the status of marriage, guardianship of under age children, right to social
allowances of members of the families and management of property of the disappeared
person.
6.
The Working Group considers that the right to be recognized as a legal
person entails the obligation of the State to fully recognize the legal personality of
disappeared persons and thus respect the rights of their next-of-kin and as well as others.
7.
For that reason, most domestic legal systems have institutions designed to
deal with the impossibility of ascertaining a person’s death. Some States allow the issuance
of a ―presumption of death‖, others of a ―declaration of absence‖. Some other States, which
have been confronted in the past with a systematic or massive practice of enforced
disappearance, have specifically created the notion of ―certificate of absence by reason of
forced disappearance‖ (see in particular the Working Group’s study on Compensation,
presumption of death and exhumation, in E/CN.4/1998/43, p. 9 sq).
8.
The basis for such an acknowledgement should take the form of a
―declaration of absence by reason of enforced disappearance‖, to be issued, with the
consent of the family, by a State authority after a certain time has elapsed since the
disappearance, in any case no less than one year.
9.
Such a declaration should allow the appointment of a representative of the
disappeared person, with the mandate to exercise his/her rights and obligations for the
duration of his/her absence, in his/her interests and those of his/her next-of-kin. The latter
should be allowed to manage temporarily the disappeared person’s properties, for as long as
the enforced disappearance continues, and to receive due assistance from the State through
social allowances. In most cases, the disappeared persons are men and were the family
breadwinners and special social support should be provided to dependent women and
children. The acceptance of financial support for members of the families should not be
considered as a waiver of the right to integral reparation for the damage caused by the
crime of enforced disappearance, in accordance with article 19 of the Declaration.
10.
In parallel to the issuance of a system of declaration of absence as a result of
enforced disappearance, States should continue to investigate all cases to determinate the
fate and the whereabouts of the disappeared and to ensure accountability of those
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