A/HRC/16/48
and its general comment on enforced disappearance as a continuous human rights
violation and continuous crime).
It also makes it clear that the right of the relatives to know the truth of the
fate and whereabouts of the disappeared persons is an absolute right, not subject to
any limitation or derogation. No legitimate aim, or exceptional circumstances, may
be invoked by the State to restrict this right. This absolute character also results from
the fact that the enforced disappearance causes “anguish and sorrow” (5th
preambular paragraph of the Declaration) to the family, a suffering that reaches the
threshold of torture, as it also results from article 1§2 of the same Declaration that
provides: “Any act of enforced disappearance (…) constitutes a violation of the rules
of international law guaranteeing, (…) the right not to be subjected to torture and
other cruel, inhuman or degrading treatment or punishment.” In this regard, the State
cannot restrict the right to know the truth about the fate and the whereabouts of the
disappeared as such restriction only adds to, and prolongs, the continuous torture
inflicted upon the relatives.
5.
The State’s main obligations under the right to the truth are mainly
procedural and include: the obligation to investigate until the fate and the
whereabouts of the person have been clarified; the obligation to have the results of
these investigations communicated to the interested parties under the conditions
specified in paragraph 3 of this general comment; the obligation to provide full
access to archives; and the obligation to provide full protection to witnesses,
relatives, judges and other participants in any investigation. There is an absolute
obligation to take all the necessary steps to find the person, but there is no absolute
obligation of result. Indeed, in certain cases, clarification is difficult or impossible to
attain, for instance when the body, for various reasons, cannot be found. A person
may have been summarily executed, but the remains cannot be found because the
person who buried the body is no longer alive, and nobody else has information on
the person’s fate. The State still has an obligation to investigate until it can
determine by presumption the fate or whereabouts of the person.
In its general comment on article 19 (the right to compensation), the Working
Group made it clear that: “As a general principle, no victim of enforced
disappearance shall be presumed dead over the objections of the family.”
6.
The right to know the truth about the fate and the whereabouts includes,
when the disappeared person is found to be dead, the right of the family to have the
remains of their loved one returned to them, and to dispose of those remains
according to their own tradition, religion or culture. The remains of the person
should be clearly and indisputably identified, including through DNA analysis. The
State, or any other authority, should not undertake the process of identification of the
remains, and should not dispose of those remains, without the full participation of
the family and without fully informing the general public of such measures. States
ought to take the necessary steps to use forensic expertise and scientific methods of
identification to the maximum of its available resources, including through
international assistance and cooperation.
7.
The right to know the truth about the fate and the whereabouts also applies to
the cases of children who were born during their mothers’ enforced disappearances,
and who were thereafter illegally adopted. Article 20 of the Declaration provides
that such acts of abduction, as well as the act of altering or suppressing documents
attesting to their true identity, shall constitute an extremely serious offence, which
shall be punished as such”. The same provision 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”. That is to say that the falsity of
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