Human Rights Committee
Communication No. 1782/2008
Views adopted by the Committee at its 104th session,
12 t o 30 March 2012
Submitted by : Tahar Mohamed Aboufaied (represented by Al –
Karama for Human Rights and Track Impunity
Always ( TRIAL) )
Alleged victims: Idriss Aboufaied and Juma Aboufaied (the
author‟s brothers), and the author
State party: Libya
Date of comm unication: 5 April 2008 (initial submission)
Document references: Special Rapporteur‟s rule 97 decision,
transmitted to the State party on 16 April 2008
(not issued in document form)
Date of adoption of Views : 21 March 201 2
Subject matter: Unlawful arres t, incommunicado detention,
secret detention, torture and ill -treatment, arrest
without a warrant, right to a fair trial, enforced
Procedural issues: State party‟s failure to cooperate
Substantive issues: Right to an effective remedy; right to life;
prohibition of torture and cruel and inhuman
treatment; right to liberty and security of the
person; arbitrary arrest and detention; respect for
the inherent dignity of persons deprived of their
liberty; right to liberty of movement and freedom
to choose one‟s residence; right to a fair trial;
recognition as a person before the law; right to
freedom of expression ; and right to peaceful
United Nations CCPR /C/ 10 4/D/ 1782/2008
International Covenant on
Civil and Political R ights
19 June 20 12
Articles of the Covenant: 2, paragraph 3; 6, paragraph 1; 7; 9, paragraphs 1
to 4; 10, paragraph 1; 12 , paragraph 2; 14; 16; 19
Articles of the Optional Protocol: 5, paragraph 2 (b)
Views of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights ( 10 4th session)
Communication No. 1782 /200 8*
Submitted by: Tahar Mohamed Aboufaied (represented by Al –
Karama for Human Rights and Track Impunity
Always ( TRIAL) )
Alleged victims: Idriss Aboufaied and Juma Aboufaied (the
author‟s brothers), and the aut hor
State party: Libya
Date of communication: 5 April 2008 (initial submission)
The Human Rights Committee , established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 21 March 2012 ,
Having concluded its consider ation of communication No. 1782/2008, submitted to
the Human Rights Committee by Tahar Mohamed Aboufaied under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account all written information made availa ble to it by the author
of the communication and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1 The author of the communication, dated 5 April 2008, is Tahar Mohamed
Aboufaied, a Libyan citizen bo rn in 1974 and residing in Gheriane, Libya. He is acting on
behalf of his two brothers, Idriss Aboufaied, born in 1957, and Juma Aboufaied , age
unknown , as well as on his own behalf. He is represented by Al -Karama for Human Rights
and Track Impunity Always (TRIAL ). The Covenant and its Optional Protocol entered into
force for Libya on 23 March 1976 and 16 August 1989, respectively.
* The following membe rs of the Committee participated in the examination of the present
communication: Mr. Lazhari Bouzid, Ms. Christine Chanet, Mr. Ahmad Amin Fathalla, Mr. Cornelis
Flinterman, Mr. Yuji Iwasawa, Mr. Walter Kaelin, Ms. Zonke Zanele Majodina, Mr. Gerald L.
Neum an, Mr. Michael O‟Flaherty, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Fabi án Omar
Salvioli, Mr. Marat Sarsembayev, Mr. Krister Thelin and Ms. Margo Waterval.
The texts of four individual opinions by Committee members Ms. Christine Chanet jointly wi th
Mr. Cornelis Flinterman, Sir Nigel Rodley, Mr. Walter Kaelin and Mr. Fabían Omar Salvioli are
appended to the text of the present Views.
1.2 The author claims that the circumstances of his brother Idriss Aboufaied‟s two
arrests, related to the peaceful expression of his political opinions, followed by prolonged
detention, including incommunicado detention and an unfair trial, together with lack of
effective remedies, constitute breaches by the State party of the latter‟s rights under article s
2, paragraph 3; 6, pa ragraph 1; 7; 9, paragraphs 1 to 4; 10, paragraph 1; 12, paragraph 2; 14,
paragraphs 1 and 3(a) and (d); 16; 19 and 21 of the Covenant.
1.3 The author further alleges that the unlawful arrest, and subsequent incommunicado
detention for over a year of his b rother Juma Aboufaied constitute breaches of article s 2,
paragraph 3; 6, paragraph 1; 7; 9, paragraphs 1 to 4; 10, paragraph 1; and 16 of the
Covenant. Finally, he submits that he , himself , suffered violation of article s 2, paragraph 3;
and 7 of the Covena nt.
The facts as presented by the author
2.1 The communication describes the situation of the authors‟ brothers as of April 2008
in the following terms. The author subsequently informed the Committee that both of his
brothers were later released, alive. 1
2.2 Idriss Aboufaied had practised as a civilian medical doctor in various Libyan towns
before enroll ing in a medical army unit and being sent to the front in 1987, during the
Chad -Libya armed conflict. He was c aptured by the Chadian fo rces and detained for two
years. Because of Colonel Gaddafi‟s refusal to recogni ze the existence of the armed conflict
and thus the prisoners -of-war status of detained Libyan personnel, Idriss Aboufaied joined
the National Front for the Salvation of Libya , an organized opposition group. In 1990, he
obtained political asylum in Switzerland, where he continued to denounce human rights
violations in his country. In 1998, together with other Libyan refugees, he founded the
National Union for Reform (NUR), one o f the most active Libyan opposition groups in
exile. As Secretary General of NUR, he participated in significant meetings of Libyan
dissidents, and openly advocated the promotion of the rule of law and respect for human
2.3 In summer 2006, Colonel Gaddafi invited opponents in exile to return to Libya,
assuring them that they would be permitted to express themselves freely, and that their civil
and political rights would be guaranteed. As a result, in August 2006, Idriss Aboufaied
announced his inten tion to return to Libya, where he would resume his political activities. 2
In September 2006, the Libyan Embassy in Bern issued him a passport, and renewed the
Government‟s assurances that he would not be persecuted in Libya. Idriss Aboufaied
arrived in Tri poli on 30 September 2006, where he was met by members of various Libyan
security agencies and subjected to interrogation. His passport was confiscated without
explanation and he was instructed to collect it at the Internal Security Office the following
we ek. Idriss Aboufaied then proceeded to his family home in Gheriane, about 100 km from
Tripoli, from where he wrote to two opposition websites, reaffirming his call for democracy
and respect for human rights in Libya. A few days later, he was informed by hi s family that
the Internal Security Agency (ISA) had sent agents to lo ok for him while he was out of the
house , and had ordered him to report to their office in the capital. However, around
midnight that same day, ISA agents presented themselves at the fam ily home, and ordered
Idriss Aboufaied to report the next morning to the ISA Office in Gheriane, which he did.
1 See paras. 5.1 – 5.4 below.
2 The author annexes a public statement in this regard, signed by Idriss Aboufaied (under the heading
“National Union for Reform”), dated 16 September 2006.
Following an interrogat ion , he was instruct ed to report to the ISA Office in Tripoli on 5
November 2006. In the meantime, Idriss Aboufaied contac ted several opposition websites,
informing them of the visits by ISA, and that he would be travelling to Tripoli pursuant to
orders received. 3
2.4 On 5 November 2006, Idriss Aboufaied reported to the ISA Office in Tripoli and
was arrested. Thereafter, the family was without news from him. On 21 November 2006,
his case was transmitted to several mechanisms of the Human Rights Council. 4 By 22
November 2006, his health condition had severely deteriorated. A medical doctor was
called to examine him in the deten tion centre, 5 and diagnosed symptoms of poisoning and
intense fatigue. It was also confirmed that he had been tortured during his detention and
deprived of sleep for several days. Idriss Aboufaied was then sent to the Gargarech
psychiatric hospital in Trip oli.
2.5 On 29 December 2006, after 54 days in secret custody, Idriss Aboufaied was
released. During his captivity, he was never brought before a judge, his family was not
informed of his whereabouts, nor of the reasons for his arrest, as the authorities had refused
to provide them with such information.
2.6 On 17 January 2007, despite his efforts to have his passport returned, so as to return
to Switzerland, where he legally resided, Idriss Aboufaied was verbally notified that his
request had been denied . He sought a lawyer to undertake legal proceedings, but as none
agreed to represent him, out of fear of reprisals, he manda ted the Geneva -based non –
governmental organi zation Al -Karama 6 to represent him before the Human Rights
Committee. On 22 January 2007 , this organi zation wrote to the Libyan Permanent Mission
in Geneva on his behalf, seeking the restitution of his passport.
2.7 On 1 February 2007, Idriss Aboufaied published a statement on foreign -based news
websites, announcing his intention to organi ze a peaceful public protest in Tripoli on 17
February 2007. 7 He also notified the U nited States Embassy in Tripoli of this plan.
2.8 On 16 February 2007, that is the day before the planned protest, Idriss Aboufaied
was arrested by a group of armed men, who had violently broke n into his house. The officer
in charge was identified as the local Head of ISA. Eleven other men were arrested in
connection with the planned demonstration.
2.9 Idriss Aboufaied was held for two months in secret detention, reportedly a t an ISA
detention centre in Tripoli. After 20 April 2007, he was transferred to Ain Zara prison in
Tripoli, together with four co -accused, where he was kept in a basement without light for
several months , and not allowed to receive family visits. All the detainees reported acts of
torture during the first five months of their captivity, including punches and beatings with
wooden objects, beatings on the soles of the feet ( falaqa ), and being placed in a coffin
during interrogation as a form of intimidation.
2.10 On 20 April 2007, while he was gravely ill, Idriss Aboufaied was brought before a
special tribunal in the District of Tajoura, Tripoli, along with 11 co -accused , to fac e several
3 Two public statements in this regard are annexed.
4 Namely, the Working Group on Arbitrary Detention; the Special Rapporteur on the question of
torture; the Special Rapporteu r on the right to f reedom of opinion and expression ; and the Special
Rapporteur on the situation of human rights defenders.
5 The author does not indicate the place of detention where the victim was then held captive.
6 Co -counsel for the author in the present communication.
7 To commemorate the anniversary of the death of 12 demonstrators in Benghazi, and to demand
respect for human rights and the rule of law .
criminal charges .8 The c harges were vague and ambiguous, such as planni ng to overthrow
the Government, possession of arms, and meeting with an official from a foreign
Government. Idriss Aboufaied denied the first two charges, while admitting that he had
contacted the U nited States Embassy ahead of the planned demonstration in February 2007 .
The case was transferred to the Revolutionary Security Court, where the charges brought
against Idriss Aboufaied included violation of article 206 of the Libyan Penal Code. 9 A
lawyer was assigned to him by the authorities, but he was not a ble to meet with him outside
2.11 The trial began on 24 June 2007, with three open court sessions in July 2007.
Another hearing was to take place before the Revolutionary Security Court on 20
November 2007 , which was postponed to 4 December 2007. The hearing was again
postponed to 8 January 2008 for unclear reasons ; it finally took place on 11 March 2008.
The accused were not present at most of the hearings. 10
2.12 Immediately after Idriss Aboufaied’s second arrest o n 16 Febr uary 2007, 11 his
brother Juma, who resided at the family home in Gheriane, alerted a representative of Al –
Karama. He also contacted a Libyan opposition news website by phone, indicating that he
did not know his brother’s whereabouts, and was afraid that he would be arrested as a
reprisal for his communicating this information. On the same day, at 4:00 a .m., Juma
Aboufaied was arrested at his home by State agents. He was last seen two days later, when
he was brought back to the family home to collect his mobi le phone and computer, which
were confiscated. Since then, and up to the date of their communication to the Committee,
the author had not receive d any information on Juma Aboufaied’s whereabouts. 12 As he was
not among the demonstration organi zers, the autho r asserts that there is every reason to
believe that the arrest and detention of Juma Aboufaied was related to his relationship with
his brother Idriss, and the information he shared on the latter’s arrest. This is confirmed by
the fact that at the moment of his arrest, State agents made allusions to his phone
conversations, and two days later confiscated his cell phone.
3.1 The author claims that Idriss and Juma Aboufaied were both subjected to enforced
disappearance by the Libyan authoriti es, albeit during different periods . Between 5
November and 29 December 2006, Idriss Aboufaied was illegally detained by State agents,
kept in isolation and prevented, in particular, from any contact with family or legal counsel.
He was subjected to the sa me conditions during the first two months and four days of his
second detention, 13 until he was brought before the court of Tajoura on 20 April 2007.
Consequently, Idriss Aboufaied was subjected to enforced disappearance for 54 days in
8 All the co -accused were identified by n ame by the author.
9 The author explains that article 206 provides for the imposition of the death penalty on persons
calling for “the establishment of a grouping, organization or association proscribed by law,” as well
as for those belonging to or supporting such organizations or associations.
10 The author adds that in an interview given to the BBC on 2 August 2007, the son of Colonel Gaddafi,
Saif al -Islam al -Gaddafi (then Executive Director of the influential Gaddafi International Charity and
Development Foundation) declared that the accused ha d possessed arms and ammunition, and that
“Idriss Aboufaied and his people [were] terrorists”.
11 See para . 2.8 above .
12 New facts however emerged, as detailed in the author‟s subsequent submission to the Committee ; see
para. 5.1 -5.4 below.
13 That is, between 16 February and 20 April 2007.
2006 , and for over tw o months in 2007. The author further contends that Juma Aboufaied,
who was subjected to similar conditions of detention as his brother Idriss, has been forcibly
disappeared since his arrest in February 2007.
3.2 The author alleges that Idriss and Juma Abo ufaied are victims of a violation of
article 6 of the Covenant, as the State party has not recognized their incommunicado
detention, leaving the victims at the mercy of those holding them, with a major threat to
their life. Consequently, and even if such c ircumstances did not lead to the actual death of
the victims, the author contends that the State party failed to fulfil its obligation to protect
their right to life, and breach ed its duty under article 6 of the Covenant.
3.3 The author further contends t hat by the very fact of their being subjected to enforced
disappearance, Idriss and Juma Aboufaied, who were deprived of any contact with relatives
and the outside world, were subjected to treatment contrary to article 7 of the Covenant. 14
Idriss Aboufaied was also exposed to actual acts of torture during his first detention, which
led to serious deterioration of his health, and prompted his medical internment. He was
seriously ill when he was first presented before a court on 20 April 2007. On the same day,
he was transferred to Ain Zara prison, where he was kept in a basement without light for
several months. Although no information was then available to the a uthor regarding the
treatment in flicted on Juma Aboufaied, nor regarding his state of health, the a uthor refers to
persisting reports o f widespread use of torture and appalling living conditions in Libyan
places of detention, and to the ill -treatment inflicted on Idriss Aboufaied. He also stresses
that despite complaints of torture made by Idriss Aboufa ied and his 11 co -defendants, the
State party has not undertaken any investigation, let alone provided victims with effective
remedies. The author therefore reiterates that the State party breached article 7 with respect
to Idriss and Juma Aboufaied in sev eral respects.
3.4 The author contends that he himself is a victim of a violation of article 7 of the
Covenant, 15 in the light of the continuous and severe emotional distress he experienced as a
result of the successive disappearances of his brothers, kno wing that both of them were
exposed to life -threatening conditions and torture.
3.5 The author alleges that the arrest s of Idriss and Juma Aboufaied by ISA agents were
undertaken in the absence of an enabling warrant, and their prolonged detention without
judicial review exceeded maximum periods prescribed by law, in breach of Libyan law 16
and of article 9, paragraph 1 , of the Covenant. 17 Neither Idriss nor Juma Aboufaied was
14 The author refers to communication s No. 449/1991, Mojica v. the Dominican Republic , Views
adopted on 15 July 1994; No. 540/1993, Celis Laureano v. Peru , Views adopted on 25 March 1996;
No. 542/1993 , Tshishimbi v. Zaire , Views adopted on 25 March 1996; No. 440/1990, El-Megreisi v.
Libya n Arab Jamahiriya , Views adopted on 24 March 1994, para. 5.4 ; No. 992/2001, Bousroual v.
Algeria, Views adopted on 30 March 2006, para. 9.8 ; and No. 950/2000, Sarma v. Sri Lanka, Vie ws
adopted on 17 July 2003, para. 9.5.
15 The author refers to communications No. 107/1981, Quinteros v. Uruguay, Views adopted on 21 July
1983; No. 992/2001, Bousroual v. Algeria (note 14 above); No . 950/2000, Sarma v. Sri Lanka (note
14 above); No. 886/ 1999, Schedko v. Belarus , Views adopted on 28 April 2003, para. 10.2; No.
1044/2002, Shukurova v. Tajikistan, Views adopted on 17 March 2006, para. 8.7; No. 959/2000,
Bazarov v. Uzbekistan, Views adopted on 14 July 2006, para. 8.5; and No. 1159/2003, Sanka ra v.
Burkina Faso, Views adopted on 28 March 2006, para. 12.2.
16 The author refers to art . 14 of the Libyan Promotion of Freedom Act ; art. 30 of the Code of Criminal
Procedure , as well as arts . 122 and 123 , which provide for a maximum period of 15 days in custody,
which may be extended to 45 days only if a Magistrate deems it necessary.
17 The author refers to communication s No. 1297/2004, Medjnoune v. Algeria , Views ad opted on 14
July 2006, para. 8.5; No. 1422/2005, El Hassy v. Libyan Arab Jamahiriya , Views adopted on 24
October 2007, para. 6.5; and No. 1196/2003 , Boucherf v. Algeria , Views adopted on 30 March 2006,
promptly informed of the reasons for his detention. The former only learned of the charges
against him more than two months after his second arrest. According to the author, both
were therefore victims of violations of article 9, paragraph 2 of the Covenant . Furthermore,
at no point during his first detention was Idriss Aboufaied brought before a judicial
authority. Following his second arrest, he was brought before a special tribunal in the
Tajoura District on 20 April 2007, but the two -month delay between his arrest and court
appearance exceeds the standard of a “few days” as interprete d by the Committee under
article 9, paragraph 3. 18 Juma Aboufaied was never brought before a judicial authority, and
no criminal prosecution was initiated against him. The author therefore contends that both
Idriss and Juma Aboufaied were victims of a viola tion of article 9, paragraph 3. Although
Idriss Aboufaied was briefly brought three times before a Court, and a lawyer was formally
assigned for his defence, the court‟s lack of impartiality, and the inherently flawed nature of
the proceedings resulted in the de facto impossibility for him to challenge the legality of his
arrest and detention. Juma Aboufaied had no access to legal counsel or family members
during his detention. The author concludes that the rights of Idriss and Juma Aboufaied
under article 9, paragraph 4 , of the Covenant were violated.
3.6 The author also asserts that, because Idriss and Juma Aboufaied were subjected to
treatment amounting to a violation of article 7 of the Covenant during their detention, the
abuses perpetrated against them also naturally result in a consequential violation of their
rights under article 10, paragraph 1, of the Covenant. 19
3.7 According to the author, by confiscating Idriss Aboufaied‟s passport without
justification upon his arrival in Libya, and explicitly re fusing to return it to him, the State
party‟s authorities precluded hi s exercis e of his right to freedom of movement, in breach of
article 12, paragraphs 2 of the Covenant. No justification has been offered for the
confiscation and retention of the passpor t, and it is maintained that no circumstances
existed which rendered these actions permissible in terms of article 12, paragraph 3 , of the
3.8 Under article 14, the author refers to the general lack of independence of the
judiciary from the Exec utive in the State party, particularly with regard to special courts ,
such as the Revolutionary Security Court, and trials against political opponents. Idriss
Aboufaied was prevented from attending most of the court hearings, which were held in
closed sess ions. Charges against him were not clearly enunciated and were only notified to
him more than two months after his arrest. 21 He was never provided with adequate facilities
to prepare and present his defence, as he was never provided with the case file, nor was he
able to meet with his lawyer outside the courtroom. Also, he could not request a change of
18 The author refers to the Committee‟s general comment No. 8 (1982) on the right to liberty and
security of persons , Officia l Records of the General Assembly, Thirty -seventh Session, Supplement
No. 40 (A/37/40), annex V; also communications No. 1128/2002, Marques de Morais v. Angola,
Views adopted on 29 March 2005, para. 6.3; No. 992/2001, Bousroual v. Algeria (note 1 4 above), ,
para. 9.6; No. 1196/2003, Boucherf v. Algeria (note 17 above) , para. 7.6; and No. 277/1988, Terán
Jijón v. Ecuador, Views adopted on 26 March 1992, para. 5.3.
19 The author refers to the Committee‟s general comment No. 21 (1992) on humane treatment of pe rsons
deprived of their liberty , Official Records of the General Assembly, Forty -seventh Session,
Supplement No. 40 (A/47/40), annex VI, sect. B , para 3.
20 The author refers to the Committee‟s general comment No. 27 (1999) on freedom of movement ,
Officia l Records of the General Assembly, Fifty -fifth Session, Supplement No. 40 , vol. I (A/55/40
(Vol. I)), annex VI, sect. A , para 9; also communication s No. 1107/2002, El Ghar v. Libyan Arab
Jamahiriya, Views adopted on 29 March 2004, para 7.3; and No. 1143/20 02, El Dernawi v. Libyan
Arab Jamahiriya, Views adopted on 20 July 2007, para 6.2.
21 See para . 2.10 above .
counsel. For these reasons, the author contends that Idriss Aboufaied‟s rights under article
14, paragraphs 1, 3(a) and (d) were violated. 22
3.9 The author fur ther points out that, as victims of enforced disappearance, Idriss and
Juma Aboufaied were denied the right to be recognized as persons before the law, in
violation of article 16 of the Covenant. 23
3.10 The author asserts that Idriss Aboufaied was imprison ed, and face d the possibility of
being severely punished 24 for his attempt to peacefully meet with others and express their
opposition to the regime in place. Such interference with the right to freedom of assembly
and freedom of expression cannot, in the c ircumstances, be considered to be a justified
restriction, as the State party never claimed to be protecting one of the legitimate purposes
set out in article 19, paragraph 3 , of the Covenant. Consequen tly , the author claims that
Idriss Aboufaied is a vict im of a violation by the State party of article s 19 and 21 of the
3.11 Concerning article 2, paragraph 3, the author refers to the Committee‟s
jurisprudence, 25 and stresses that by failing to take necessary measures to protect the
victims‟ rights and offer them effective remedies for violation of article s 6, 7, 9, 10, 12, 14,
6, 9 and 21 read alone, the State party further breached the provisions of those articles read
in conjunction with article 2, paragraph 3 , of the Covenant.
3.12 As to the qu estion of exhaustion of domestic remedies, the author claims that no
remedies are available, in practice, for victims of human rights violations in Libya.
Referring to human rights violations committed by the State party, 26 the author asserts that
the fear of reprisals prevented him from initiating judicial action or seeking resort to other
domestic remedies on behalf of his brothers. Idriss Aboufaied unsuccessfully tried to seek
professional legal assistance prior to his second arrest, and the virtual impos sibility of
finding legal representation, as lawyers fear reprisals, constitutes a serious impediment to
access to justice. 27 In addition, the author submits that even if he had had access to
domestic remedies, had they been available, they would have been totally ineffective
because of the deeply flawed judicial system within the State party. 28 The author therefore
22 The author refers to the Committee‟s general comment No. 32 (2007) on the right to equality before
courts and tribunals and to a fair trial , Official Records of the General Assembly, Sixty -second
Session, Supplement No. 40 , vol. I (A/62/40 (Vol. I)), annex VI ; communications No. 80/1980,
Vasilskis v. Uruguay, Views adopted on 31 March 1983, para 11; No. 52/1979, Lopez Burgos v.
Uruguay, Views ad opted on 29 July 1981, para 13; and No. 662/1995, Lumley v. Jamaica, Views
adopted on 30 April 1999, para 7.4.
23 The author refers here to communication s No. 132 8/2004, Kimouche. v. Algeria , Views adopted on
10 July 2007 , para 7.9; and communication No . 1327/2004, Grioua v. Algeria, Views adopted on 1 0
July 2007, para. 7.9.
24 At the time of the author‟s initial communication, judicial proceedings against Idriss Aboufaied were
25 The author refers to communication No. 612/1995, Vicente et al. v. Colombia, Views adopted on 12
August 1995, para 10; and the Committee‟s general comment 31 (2004) on the nature of the general
legal obligation imposed on States parties to the Covenant , Official Records of the General Assembly,
Fifty -ninth Sessi on, Supplement No. 40 , vol. I (A/59/40 (Vol. I)), annex III , para. 8.
26 Such as arbitrary arrests and detentions, extrajudicial killings, collective punishments and the
relentless harassment against dissidents and their families.
27 The author refers to communication s No. 798/1998, Howell v. Jamaica, Views adopted on 7
November 2003, para 5.3; and No. 146/1983 and 148 -154/1983, Baboeram -Adhin et al. v. Suriname,
Views adopted on 4 April 1985, para 9.2.
28 The author refers to the lack of independence o f the judiciary , in practice, and to the long -standing
and consistent pattern of political trials, characterized by unfair and summary proceedings before the
requests the Committee to consider, in the circumstances, that the requirement of
exhaustion of domestic remedies has been satisfied .
State par ty’s failure to cooperate
4. On 28 January 2009, 22 April 2009 and 14 July 2009, the State party was requested
to submit information concerning the admissibility and merits of the communication. The
Committee notes that this information has not been receiv ed. It regrets the State party‟s
failure to provide any information with regard to the admissibility and/or substance of the
author‟s claims. It recalls that, under the Optional Protocol, the State party concerned is
required to submit to the Committee wri tten explanations or statements clarifying the
matter and the remedy, if any, that may have been taken by the State. In the absence of a
reply from the State party, due weight must be given to those of the author‟s allegations that
have been properly subst antiated. 29
Additional submission by the author
5.1 On 4 July 2008, the author informed the Committee that at the beginning of April
2008, Idriss Aboufaied, who had been detained at Abu Salim prison, was transferred to
Sabrata Hospital, 30 and was only allo wed to leave the hospital to attend hearings in his trial.
According to his family, his medical condition is serious and rapidly deteriorating.
5.2 On 15 April 2008, a hearing took place close to Abu Salim prison, in the presence of
the accused and one of his family members. A nother hearing took place on 13 May 2008, in
the presence of the accused and two family members. Further to Idriss Aboufaied‟s request
for release on medical grounds, the Court requested a medical report, and adjourned the
hearing. On 10 June 2008, the last hearing took place, attended by the 12 accused. The
author was also present. On that date, Idriss Aboufaied was sentenc ed to 25 years‟
imprisonment. The tribunal did not address his request for release on medical grounds. The
author contends that inasmuch as the conviction of Idriss Aboufaied was the outcome of a
grossly unfair trial, 31 his detention pursuant to this decision should be deemed by the
Committee to be contrary to his right to liberty and security of the person, and there fore in
breach of article 9, paragraph 1 , of the Covenant.
5.3 In the same submission, the author further informed the Committee that Juma
Aboufaied had been released on 27 May 2008, after having spent over 15 months in secret
detention. At no point durin g his detention was he presented before a judicial authority, nor
was he charged with an offence. Subsequent to his release, the State party authorities have
taken no step with a view to granting Juma Aboufaied reparation for the arbitrary arrest and
prolo nged secret detention, nor have they undertaken any investigation to clarify the facts
and prosecute perpetrators. The author requested the Committee to take these developments
into account when consider ing his communication.
5.4 On 22 October 2008, the au thor informed the Committee that Idriss Aboufaied had
been released on the night of 8 -9 October 2008. Prior to his release, he was held at Sabrata
hospital, since his transfer from Abu Salim prison in early April 2008. The author added
“special revolutionary courts” (replaced in 2005 by the “State security court”), as well as secret trials,
and trials in absentia, aimed at intimidating political opponents, and suppressing political dissent.
29 See, inter alia, communication s No. 1422/2005, El Hassy v. Libyan Arab Jamahiriya (note 17 above) ,
para. 4; No. 1295/2004, El Alwani v. Liby an Arab Jamahiriya , Views adopted on 11 July 2007, para.
4; No. 1208/2003, Kurbonov v. Tajikistan , Views adopted on 16 March 2006, para. 4; and No.
760/1997, Diergaardt et al. v. Namibia , Views adopted on 25 July 2000, para. 10.2.
30 He remained interned at that hospital at the time of the author‟s additional submission.
31 The author recalls his observations as outlined in para s. 3.5 and 3.8 above .
that Idriss Aboufaie d had requested authori zation to leave the country in order to receive
adequate medical treatment abroad, but that he remained , in the meantime , under close
surveillance at his family home. Finally, the author requested the Committee to take these
developm ents into account when consider ing his communication.
Issues and proceedings before the Committee
Consideration of admissibility
6.1 Before considering any claim contained in a communication, the Human Rights
Committee must, in accordance with article 93 of its rules of procedure, decide whether or
not the communication is admissible under the Optional Protocol to the Covenant.
6.2 Further to article 5, paragraph 2 (a), of the Optional Protocol, the Committee must
ascertain that the same matter is not b eing examined under another procedure of
international investigation or settlement. The Committee notes that the case of Idriss
Aboufaied was submitted in 2006 to the following: the United Nations Working Group on
Arbitrary Detention, the Special Rapporteu r on torture and other cruel, inhuman or
degrading treatment or punishment, the Special Rapporteur on freedom of opinion and
expression, and to the Special Rapporteur on the situation of human rights defenders.
However, it observes that extra -conventional procedures or mechanisms established by the
former Commission on Human Rights, the Economic and Social Council or the Human
Rights Council, whose mandates are to examine and publicly report on human rights
situations in specific countries or territories or on major phenomena of human rights
violations worldwide, do not constitute procedures of international investigation or
settlement within the meaning of article 5, paragraph 2 (a), of the Optional Protocol. 32
Furthermore, the communication concerning Idri ss Aboufaied, who is no longer detained,
has been filed without opinion by the Working Group on Arbitrary Detention. 33
Accordingly, the Committee is of the view that the matter concerning the rights of Idriss
Aboufaied is not being examined under another pr ocedure of international investigation or
settlement within the meaning of article 5, paragraph 2 (a) , of the Optional Protocol.
6.3 With respect to the question of exhaustion of domestic remedies, the Committee
reiterates its concern that, in spite of th ree reminders addressed to the State party, no
information or observations on the admissibility or merits of the communication have been
received from the State party. Given these circumstances, the Committee finds that it is not
precluded from considering the communication under article 5, paragraph 2 (b), of the
6.4 As to the alleged violations of articles 19 and 21, read alone and in conjunction with
article 2, paragraph 3, the Committee considers that, in view of the limited informat ion
provided, the author‟s allegations have been insufficiently substantiated for purposes of
admissibility. The Committee considers that the other allegations of violation have been
sufficiently substantiated, and therefore finds no reason to consider the rest of the
communication inadmissible. The Committee th erefore proceeds to its consideration o f the
merits based on the claims made with respect to (a) Idriss Aboufaied , under article s 2,
paragraph 3; 6, paragraph 1; 7; 9, paragraphs 1 to 4; 10, paragrap h 1; 12, paragraph 2; 14,
paragraphs 1, 3 (a) and (d); and 16 of the Covenant; (b) Juma Aboufaied , under article s 2,
32 See communications No. 540/1993, Celis Laureano v. Peru (note 14 above), para. 7.1 ; No.
1776/2008, Bas hasha v. Libyan Arab Jamahiriya , Views adopted on 20 October 2010, para. 6.2; No.
1559/2007, Hernandez v. Philippines , Views adopted on 26 July 2010 .
33 See communications No. 688/1996, Arredondo v. Peru , Views adopted on 27 July 2000, para. 10.2;
No. 11 72/2003, Madani v. Algeria , Views adopted on 28 March 2007, paras. 2.7 and 7.2.
paragraph 3; 6, paragraph 1; 7; 9, paragraphs 1 to 4; 10, paragraph 1; and 16 of the
Covenant; and (c) the author himself , under article s 2, paragraph 3; and 7 of the Covenant.
Consideration of the merits
7.1 The Human Rights Committee has considered the present communication in the
light of all the information made available to it, as provided for under article 5, paragraph 1,
of the Optio nal Protocol.
7.2 Regarding the alleged secret and incommunicado detention of Idriss and Juma
Aboufaied, the Committee recognizes the degree of suffering involved in being held
indefinitely without contact with the outside world. It recalls its general com ment No. 20
(1992) on the prohibition of torture or cruel, inhuman or degrading treatment or
punishment, in which it recommends that States parties make provision against
incommunicado detention. It notes that Idriss Aboufaied was kept in incommunicado
det ention in an undisclosed location during two distinct periods: between 5 November and
29 December 2006, and from his second arrest on 16 February 2007, until he was brought
before the court of Tajoura on 20 April 2007. During these periods, he was kept in
isolation, and prevented from any contact with his family or legal counsel. He remained in
detention until 8 October 2008. In total, he was detained for a period of close to 22
months, 34 of which almost four months were in secret detention. Juma Aboufaied remained
in secret detention for 15 months, from his arrest in February 2007, until he was released on
27 May 2008.
7.3 The Committee notes that the author alleges that his two brothers, Idriss and Juma
Aboufaied, were subjected by the Libyan authorities t o enforced disappearance. The
Committee recalls that it considers that a cts leading to such a disappearance constitute a
violation of many of the rights enshrined in the Covenant, including the right to recognition
everywhere as a person before the law (ar t. 16), the right to liberty and security of person
(art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment
or punishment (art. 7), and the right of all persons deprived of their liberty to be treated
with humanity an d with respect for the inherent dignity of the human person (art. 10). They
may also constitute a violation or a grave threat to the right to life (art. 6). 35
7.4 The Committee notes that the State party has provided no response to the author‟s
allegation s regarding the enforced disappearance of his two brothers, nor to his allegation
that Idriss Aboufaied was subject to acts of torture in detention. The Committee also notes
the author‟s claim that on 20 April 2007, the latter was transferred to Ain Zara p rison,
where he was kept in a basement without light for several months, despite his critical health
condition, which was known to the State party. The Committee reaffirms that the burden of
proof cannot rest on the author of the communication alone, espec ially since the author and
the State party do not always have equal access to the evidence and it is frequently the case
that the State party alone has the relevant information. 36 It is implicit in article 4, paragraph
2, of the Optional Protocol that the S tate party has the duty to investigate in good faith all
allegations of violations of the Covenant made against it and its representatives and provide
34 From 5 November to 29 December 2006 and from 16 February 2007 to 8 October 2008 (date of his
final release) .
35 See c ommunication s No. 1328/2004, Kimouche v. Algeria (note 23 above) , para. 7.2; No. 1295/2004,
El Awani v. Libyan Arab Jamahiriya (note 29 above) , para. 6.2; No. 992/2001, Bousroual v. Algeria
(note 14 above) , para. 9.2; and No. 950/2000, Sarma v. Sri Lanka (note 14 above) , para. 9.3 ; also
Declaration on the Pro tection of All Persons from Enf orced Disappearance (adopted by General
Assembly resolution 47/133 of 18 December 1992) , art . 1, para. 2.
36 See communications No. 1422/2005, El Hassy v. Libyan Arab Jamahiriya (note 17 above), para. 6.7;
and No. 1297/2004, Medjnoune v. Algeria (note 17 above) , para. 8.3.
the Committee with information available to it. In cases where the allegations are
corroborated by credib le evidence submitted by the author and where further clarification
depends on information that is solely in the hands of the State party, the Committee may
consider an author‟s allegations substantiated in the absence of satisfactory evidence or
explanati ons to the contrary presented by the State party. In the absence of any explanation
from the State party in this respect, due weight must be given to the author‟s allegations.
On the basis of the information at its disposal, the Committee concludes that to have kept
Idriss and Juma Aboufaied in captivity for a prolonged period, to have prevented them from
communicating with their family and the outside world, and to have subjected Idriss
Aboufaied to acts of torture, constitute a violation of article 7 of t he Covenant with regard
to each of them. 37
7.5 With regard to the author, the Committee notes the anguish and distress caused by
the successive disappearance of his two brothers Idriss and Juma Aboufaied . Recalling its
jurisprudence, the Committee conclude s that the facts before it reveal a violation of article 7
of the Covenant with regard to the author. 38
7.6 Regarding article 9, the information before the Committee shows that Idriss
Aboufaied was twice arrested without a warrant by agents of the State pa rty, and that he
was held in secret detention for approximately two months on each occasion, without
access to defence counsel, without being informed of the grounds for his arrest, and without
being brought before a judicial authority. He was first inform ed of the charges against him
in April 2007, when he was brought before a special tribunal in Tajoura District . Juma
Aboufaied was kept in secret detention for fifteen months, without access to a lawyer, and
without ever being informed of the grounds for h is arrest. During these periods, Idriss and
Juma Aboufaied were unable to challenge the legality of their detention or its arbitrary
character. In the absence of any explanation from the State party, the Committee finds
violations of article 9 of the Coven ant with regard to both periods of detention of Idriss
Aboufaied , and with regard to the entire period of detention of Juma Aboufaied. 39
7.7 The Committee has taken note of the author‟s allegation under article 10, paragraph
1, that Idriss Aboufaied was su bjected to acts of torture during his detention, and that he
was kept in inappropriate detention facilities, given his medical condition. Juma Aboufaied
was held incommunicado for the totality of his detention. The Committee reiterates that
persons deprive d of their liberty may not be subjected to any hardship or constraint other
than that resulting from the deprivation of liberty, and that they must be treated with
humanity and respect for their dignity. In the absence of information from the State party
concerning the treatment of the author‟s brothers in detention, the Committee concludes
that the rights of Idriss and Juma Aboufaied under article 10, paragraph 1, were violated. 40
37 See communications No. 1295/2004, El Awani v. Libyan Arab Jamahiriya (note 29 above), para. 6.5;
No. 1422/2005, El Hassy v. Libyan Arab Jamahiriya , (note 17 above) , para. 6.2; No. 540/1993, Celis
Laurea no v. Peru , (note 14 above), para. 8.5; No. 458/1991, Mukong v. Cameroon , Views adopted on
21 July 1994, para. 9.4 ; and No. 440/1990, El-Megreisi v. Libyan Arab Jamahiriya (note 14 above),
38 See communication s No. 1640/2007, El Abani v. Libya n Arab Jamahiriya , Views adopted on 26 July
2010, para. 7.5; No. 1422/2005, El Hassy v. Libyan Arab Jamahiriya (note 17 above) , para. 6.11; No.
107/1981, Quinteros v. Uruguay (note 15 above) , para. 14; and No. 950/2000, Sarma v. Sri Lanka
(note 14 above), para. 9.5.
39 Communication No. 1297/2004 , Medjnoune v. Algeria (note 17 above) , para. 8.5.
40 See the Committee‟s general comment No. 21 (1992) on humane treatment o f persons deprived of
their liberty , Official Records of the General Assembly, Forty -seven th Session, Supplement No. 40
(A/47/40), annex VI, sect. B , para. 3; communication s No. 1134/2002, Gorji -Dinka v. Cameroon ,
Views adopted on 17 March 2005, para. 5.2; No. 1640/2007, El Abani v. Libya , (note 38 above), para.
7.8 As to the author‟s allegations under article 12, paragraph 2 , of the Cov enant, the
Committee observes the uncontested information before it, according to which State party
agents confiscated Idriss Aboufaied‟s passport without justification upon his arrival in
Libya on 30 September 2006, and explicitly refused to return it to him, thereby precluding
him from leaving the country and returning to his place of legal residence, in Switzerland.
The Committee recalls that a passport provides a national with the means “to leave any
country, including his own, ” as stipulated in article 12, paragraph 2, of the Covenant, and
that such right may, by virtue of paragraph 3 of that article, be subject to restrictions “which
are provided by law [and] are necessary to protect national security, public order ( ordre
public ), public health or mora ls or the rights and freedoms of others, and are consistent with
the other rights recognized in the present Covenant ”. In the present case, the State party has
not put forward any argument to that effect . Consequently, the Committee finds that the
confisca tion of the author‟s passport, and failure to restore the document to him, must be
deemed an unjustified interference with his right to freedom of movement, in violation of
article 12, paragraph 2 , of the Covenant. 41
7.9 With respect to the author‟s complai nt under article 14, the Committee notes from
the information before it that on 20 April 2007 – two months after his second arrest –, Idriss
Aboufaied was brought before a special tribunal in Tajoura District , Tripoli, to fac e several
criminal charges, of which he had not been previously informed. The case was then
transferred to a Revolutionary Security Court which held some of its hearings in closed
session, for reasons that have not been identified. Although a lawyer was assigned to him
by the authoritie s, he was not able to meet with him outside the courtroom, nor was he able
to examine the case file, and he was not permitted to attend some of the court hearings. On
10 June 2008, he was sentenced to 25 years‟ imprisonment and was maintained in detention
until his release on 8 October 2008, despite his request for release on medical reasons,
which was not considered by the Court. Based on the material before it, and in the absence
of rebuttal information from the State party, the Committee concludes that the trial and
sentencing of Idriss Aboufaied in the circumstances described disclose a violation of article
14, paragraphs 1, 3 (a) and (d) , of the Covenant. Having so concluded, the Committee will
not examine separately the claims of violation of article 2, paragraph 3, in conjunction with
7.10 In respect of article 16, the Committee reiterates its established case law, according
to which intentionally removing a person from the protection of the law for a prolonged
period of time may constitu te a refusal of recognition as a person before the law if the
victim was in the hands of the State authorities when last seen and, at the same time, if the
efforts of his or her relatives to obtain access to potentially effective remedies, including
judici al remedies ( see art. 2, para. 3, of the Covenant) have been systematically impeded. 42
In the present case, the State party authorities subjected Idriss and Juma Aboufaied to
incommunicado detention and refused to provide the family with any information
con cerning their whereabouts or condition, and further intimidated the family from seeking
redress or assistance for them. The Committee, therefore, finds that the enforced
disappearance of Idriss and Juma Aboufaied deprived them of the protection of the law
during that period, in violation of article 16 of the Covenant.
7.7; and No. 1422/2005, El Hassy v. Libyan Arab Jamahiriya (note 17 above) , para. 6.4.
41 See communication s No. 1143/2002, El Dernawi v. Libyan Arab Jamahiriya (note 2 0 above) , para
6.2; and No. 1107/2002, El Ghar v. Libyan Arab Jamahiriya (note 20 above), para 7.3.
42 See communicatio ns No. 1640/2007, El Abani v. Libyan Arab Jamahiriya (note 38 above), para 7.9;
No. 1327/2004, Grioua v. Algeria (note 2 3 above) , para. 7.8 ; and No. 1495/2006, Madoui v. Algeria ,
Views adopted on 28 October 2008, para. 7.7.
7.11 The author invokes article 2, paragraph 3, of the Covenant, which requires States
parties to ensure that individuals have accessible, effective and enforceable remedies for
asserting the rights recognized in the Covenant. The Committee reiterates the importance it
attaches to States parties establish ing appropriate judicial and administrative mechanisms
for addressing alleged violations of rights under domestic law. It refers to its genera l
comment No. 31 (2004) on the nature of the general legal obligation imposed on States
parties to the Covenant, in which it states that failure by a State party to investigate
allegations of violations could in and of itself give rise to a separate breach of the Covenant.
In the present case, the information before the Committee indicates that Idriss and Juma
Aboufaied did not have access to an effective remedy, leading the Committee to find a
violation of article 2, paragraph 3, read in conjunction with a rticle 6, paragraph 1; 7; 9; 10,
paragraph 1; and 16 with regard to Idriss and Juma Aboufaied , and read in conjunction with
article 12, paragraph 2 , with regard to Idriss Aboufaied .43 The Committee also finds there
has been a violation of article 2, paragra ph 3, read in conjunction with article 7, with regard
to the author. 44
7.12 Having reached the foregoing conclusions, together with the fact that both brothers
were released alive, the Committee will not examine separately the claims of violation of
articl e 6 read alone.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, finds that the facts
before it reveal violations by the State party of article s 7; 9; 10, paragraph 1; and 16 with
regard to Idriss and Juma Aboufaied . It also finds that there was a violation of article s 12,
paragraph 2; and 14, paragraphs 1, 3 (a) and (d) with regard to Idriss Aboufaied . The
Committee further finds that the State party ac ted in violation of article 2, paragraph 3, read
in conjunction with article s 6, paragraph 1; 7; 9; 10, paragraph 1; and 16 with regard to
Idriss and Juma Aboufaied , and read in conjunction with article 12, paragraph 2 , with
regard to Idriss Aboufaied . La stly, the Committee finds a violation of article 7, read alone
and in conjunction with article 2, paragraph 3, of the Covenant with regard to the author.
9. In accordance with article 2, paragraph 3, of the Covena nt, the State party is under
an obligation to provide the author and his brothers with an effective remedy, including (i)
a thorough and effective investigation into the disappearance of Idriss and Juma Aboufaied
and any ill -treatment that they suffered in detention; (ii) providing the author and his
brothers with detailed information on the results of its investigations; (iii) prosecuting,
trying, and punishing those responsible for the disappearance or other ill -treatment; and (iv)
appropriate compensation to the author and his brothers for the v iolations suffered. The
State party is also under an obligation to take measures to prevent similar violations in the
10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Commi ttee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory or subject to its
jurisdiction the rights recogniz ed in the Covenant and to provide an effective and
enforceable remedy in the event that a violation is established, the Committee wishes to
receive from the State party, within 180 days, information about the measures taken to give
43 See communications No. 1422/ 2005, El Hassy v. the Libyan Arab Jamahiriya (note 17 above) , para.
6.9 ; and No. 1196/2003, Boucherf v. Algeria (note 17 above) , para. 9.9.
44 See communication No. 1811/2008, Chihoub v. Algeria, Views adopted on 31 October 2011, para
effect to the Committee‟ s Views. The State party is also requested to publish the present
Views and to have them widely disseminated in the official language of the State party.
[Adopted in English, French and Spanish, the English text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee‟s
annual report to the General Assembly.]
I. Individual Opinion of Committee member Sir Nigel Rodley
While concurring with some hesitation with the substantive findings of the
Committee, I have misgivings about the Committee‟s unexplained treatment of these cases
– or at least the case of Idriss Aboufaied – explicitly as “enforced disappearances ”. There is
no doubt that both brothers were victims of secret detent ion. The question is whether they
were also placed outside the protection of the law, thus justifying both the categorization of
the detentions as enforced disappearances and as violations of article 16.
Those who are experienced in working with the grot esque and unconscionable
practice of enforced disappearance are familiar with the need to distinguish an
unacknowledged detention , that perhaps exceeds national or international time limits and
thus constitutes at least arbitrary detention, from the horrib le reality of enforced
disappearance. This distinction would appear to imply a temporal element in the notion of
enforced disappearance. Indeed, there is a risk of trivializing the notion, if it is held to cover
any secret detention (by which I understand neither the detention to be acknowledged nor
the whereabouts disclosed) for however short a period.
On the other hand, only one of the international definitions of enforced
disappearance, notably that in article 7 , paragraph 2 (i) of the Rome Statute of t he
International Criminal Court addresses this temporal dimension. 1 It requires that there be an
intent to deprive the per son of the protection of the law “for a prolonged period of time ”.
Effectively, the implication may be that the temporal element is e vidence of the placing of
the person outside the protection of the law. Indeed, the Committee‟s standard language in
paragraph 7.10 with regard to article 16 specifically refers to “a prolonged period of time ”.
Normally, I think the Committee should requi re more than the mere assertion –
albeit, as in this case, uncontested by the State party – that a person falls into that category
without a significant temporal element. Not every secret detention, even for as much as two
months, as was inflicted on Idris s Aboufaied, would necessarily fall to be treated as an
enforced disappearance, as there would not on that basis alone be sufficient evidence of
deprivation of protection of the law.
However, in the present case, there is less doubt regarding the treatme nt of Juma
Aboufaied who was secretly detained for 15 months; and the case of his brother, who had
twice been subject to two months‟ secret detention, is on the facts inseparable from his.
Moreover, the existence of the practice of enforced disappearance i n Libya is already
familiar to the Committee. 2 Under these circumstances, it is probable that both brothers
were indeed denied protection of the law, thus rendering permissible their categorization as
enforced disappearances and the finding of a violation of article 16.
1 Other def initions are found in the International Convention for the Protection of All Persons from
Enforced Disappearance (2006), art. 2; and the Inter -American Convention on Forced Disappearance
of Persons (1994), art. II.
2 See communications No. 440/1990 , El-Megreisi v. Libya n Arab Jamahiriya (note that the term was
not invoke d in this case); No. 1295/2004 , El Alwani v. Libya n Arab Jamahiriya ; No. 1422/2005 , El
Hassy v. Libya n Arab Jamahiriya ; No. 1640/2007 , El Abani v. Libya n Arab Jamahiriya ; No.
1751/2008 , Aboussedra v. Libya n Arab Jamahiriya ; No. 1776/2008 , Bashasha v. Libya n Arab
The misgivings remain , however; most enforced disappearances are really
camouflages for clandestine murder. Very occasionally the victims reappear. We should be
cautious about relatively brief secret detentions – arbitrary and torturous t hough they be –
being treated as authentic enforced disappearances.
[Done in English (original version). Subsequently to be issued also in Arabic, Chinese,
French, Russian and Spanish , as part of the Committee’s annual report to the General
II. Individual Opinion of Committee member Mr. Walter Kälin (partly
While I agree with the finding of the majority that article 16 of the Covenant was
violated in the case of Juma Aboufaied, I am not in a position to share this conclusion with
regard to his brother , Idriss , who was secretly detained on two occasions for periods of
approximately two months each. Both brothers were victims of secret detention, and thus of
violations of Article 9 of the Covenant, but it is more than doubtful that, as the majority
seems to suggest, secret detention always and regardless of its duration amounts to a
violation of the right to recognition as a person before the law.
Article 16 of the Covenant protects the absolute and non -derogable right to be
recogni zed as someone having the capacity to be a bearer of rights and duties, and thus is
the most fundamental of all rights insofar as “recognition of legal personality is […] a
necessary prerequisite to all other rights of the individual.” 1
It is probably for this reason that, for a long time, the Committee was hesitant to
apply article 16 to cases of enforced disappearance. Only as late as 2007 did the Committee
started to examine whether and under what circumstances a forced disappearance may
amount to a vio lation of article 16. It held “that intentionally removing a person from the
protection of the law for a prolonged period of time may constitute a refusal to recognize
that person before the law if the victim was in the hands of the State authorities when last
seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially
effective remedies, including judicial remedies (Covenant, art. 2, para. 3) have been
systematically impeded” . It explained that in such cases , victims “are in practice deprived
of their capacity to exercise entitlements under the law, including all their other rights under
the Covenant, and of access to any possible remedy , as a direct consequence of the actions
of the State.” 2
This reasoning makes cle ar that not every case of a denial of justice or access to a
remedy in case of a violation of a right violates article 16 of the Covenant . Rather, as the
Committee since 2007 has consistently recognized, 3 this non -derogable guarantee is
violated where vict ims are systematically and for a prolonged period of time deprived of
any possibility to exercise their rights and denied access to a remedy against such
violations. It is o nly under these circumstances that a de facto denial of the right to be
treated as a bearer of rights is taking place. On the basis of the information available to the
Committee, 4 I am unable to conclude that these conditions were fulfilled in the case of
This conclusion should not be interpreted as disregarding the m ost serious anguish
and suffering imposed on Idriss Aboufaied and his relatives. I am also fully aware that
contemporary human rights definitions of enforced disappearance do not contain a temporal
element. 5 However, while I am deeply convinced that forced disappearance is one of the
1 Manfred Nowak, U.N. Covenant on Civil and Political Rights : CCPR Commentary , 2nd edition,
(Kehl am Rhein, Engel, 2005 ), p. 369.
2 Communication s No. 1327/2004 , Grioua v. Algeria , para. 7.8, and No. 1328/2004 Kimouche v.
Algeria , para. 7.8.
3 See, inter alia , communication No. 1751/2008 , Aboussedra v. Libyan Arab Jamahir iya, Views
adopted by the Committee on 25 October 2010, para. 7.9.
4 See paras . 2.4, 2.5 and 2.9 of the Views in this case.
5 See International Convention for the Protection of All Persons from Enforced Disappearance (2006),
art. 2; Inter -American Convention on Forced Disappearance of Persons (1994), art. II. In contrast, art.
most heinous human rights violations, I maintain that the role of Committee is to apply
article 16 rather than interpret a notion that is not enshrined in the Covenant. In this regard,
I fear that by giving up the elements of the duration and systematic character of the
deprivation of a person of the protection of the law when examining cases under article 16 ,
the majority risks to trivialize this fundamental human rights guarantee.
[Done in English (original version). Subsequen tly to be issued also in Arabic, Chinese,
French, Russian and Spanish , as part of the Committee’s annual report to the General
7, para. 2 (i) of the Rome Statute of the International Criminal Court requires that there be an intent to
deprive the person of the protection of the law „for a prolonged period of time‟.
III. Individual Opinion of Committee member Ms. Christine Chanet join tly
with Committee member Mr. Cornelis Flinterm an (concurring)
I express reservations over the use, in the statement of grounds for the Committee‟s
decision not to address the issue of article 6 of the Covenant, of the expression “and in light
of the fact that both brothers were released alive” (para. 7.12) .
This wording might be interpreted as necessarily meaning that proof of death must
be established with certainty for a finding of violation of article 6 to be made in respect of
In my view, this interpretation would wrongl y give pride of place to the last sentence
of article 6, paragraph 1, which states that “No one shall be arbitrarily deprived of his life”,
to the detriment of the second sentence of that paragraph, which states that the right to life
“should be protected by law ,” when the two sentences are of equal importance.
In the matter of enforced disappearance, whether the victim is alive or dead, the
mere fact of incommunicado detention which cuts the individual concerned off from the
human community by severing co ntact between them, even temporarily, entails a risk to life
for which the State is accountable.
This is the analysis made by the Human Rights Committee in the cases of Djebrouni
v. Algeria (communication No. 1781/2008) and Ouaghlossi v. Algeria (communic ation No.
1905/2009), and it should not be jeopardized by a different interpretation as might result
from the wording I criticize.
[Done in English, French and Spanish, the French text being the original version.
Subsequently to be issued also in Arabic, C hinese and Russian , as part of the Committee‟s
annual report to the General Assembly.]
IV. Individual Opinion of Committee member Mr. Fabían Omar Salvioli
1. In general, I agree with the Committee ‟s decision in the Aboufaied v. Libya case
(communication No. 1782/2008) , but I regret to have to dissent from the contents of
paragraph 7.12 of the Views and the conclusions drawn there from . In that paragraph, the
Committee decided that, having previously found a violation of article 2, parag raph 3, read
in conjunction with article 6, and in light of the fact that the Aboufaied brothers were
released alive, “the Committee will not examine separately the claims of violation of article
6 read alone .”
2. The Committee commonly places the “duty to guarantee ” in the context of article 2,
paragraph 3, of the Covenant; in my view, however, th e provision concerned refers to only
one aspect of th at duty, namely the duty to ensure a remedy in respect of the violations
committed. The duty to guarantee und er international human rights law is far broader than
the provision of an effective remedy; guaranteeing the exercise of a right is an obligation of
the State not only after a violation occurs but also , essentially, before.
3. In previous individual opinio ns concerning other individual cases dealt with by the
Committee, 1 I mentioned the right of guarantee in its three dimensions under the
International Covenant on Civil and Political Rights . Although I refer back to those
statements in order to avoid repeat ing identical arguments whenever an instance of
enforced disappearance , such as the present one , occurs, I consider that in the Aboufaied
case, bearing in mind the third dimension of the duty to guarantee, the Committee should
have found a violation of art icle 6 of the Covenant in respect of both victims.
4. Apart from involving a restricted focus on the right to life, the position that article 6
is violated only in the event of the victims ‟ death ignores the fact that the duty of guarantee
covers each of t he rights laid down in the Covenant (in this case, the right to life) , for which
the corresponding legal provision is made (in this instance , in article 6).
5. To limit the duty to guarantee rights to the existence of an effective judicial remedy,
in accor dance with the reasoning followed by the majority of the Committee in the present
case, is to water down the responsibilities and obligations that all States parties to the
International Covenant on Civil and Political Rights are required to discharge in g ood faith
in order, in this particular case, to guarantee the right to life. In my opinion, therefore, the
Committee should have concluded in its Views that a violation of article 6, paragraph 1,
was committed in respect of the brothers Idriss and Juma Abo ufaied.
Is there a minimum length of time required for detention to be regarded as
constituting enforced disappearance?
6. I would not like to end this opinion without mentioning a matter which, although
correctly resolved in the case of the present comm unication, may give rise to problems in
the future. I refer to the risk of weakening the concept of enforced disappearance by
introducing a time dimension as an additional element.
7. In the present case, the Committee correctly categorized the situations of both Idriss
and Juma Aboufaied as constituting “enforced disappearance .” Enforced disappearance is a
complex v iolation of human rights attributable to the State in which public officials or
individuals act with its support or acquiescence; it entails detention (lawful or unlawful),
1 Human Rights Committee, communication No. 1588/2007, Benaziza v. Algeria , Vi ews of 26 July
2010, Partly dissenting opinion of Committee member Mr. Fabián Salvioli, paras. 19 –21.
deprivation of liberty and a refusal to acknowledge detention or to provide information on
the fate or whereabouts of the person detained with the aim of placing the person concerned
outside the protection of the law . This is a continuing crime which ends only with the
appearance of the victim, alive or not (hence, the extrajudicial execution of the individual is
not a determinant of the crime of enforced disappearance ).
8. The United Nations codification of enforced disappeara nces began with the
Declaration on the Protection of All Persons from Enforced Disappearance. 2 In this
instrument, the element of detention is dissociated from the status of the perpetrator
(whether or not an agent of the State), and the nature of th e dete ntion (lawful or unlawful) ;
although the Declaration does stipulate that there must be a refusal to acknowledge the
disappearance or to disclose the fate or whereabouts of the person concerned. 3 The time
factor (requirement of a minimum length of time to d etermine whether or not an enforced
disappearance has been committed) is not even mentioned.
9. The emphasis on refusal to disclose the person‟s whereabouts indicat es a realization
of the risk that victims may be subjected to certain practices constituting grave violations of
human rights, especially torture or cruel, inhuman or degrading treatment. Not surprisingly,
therefore, the Declaration states that “any person deprived of liberty shall be held in an
officially recognized place of detention and, in co nformity with national law, be brought
before a judicial authority promptly after detention ”, and also requires that “accurate
information on the detention of such persons and their place or places of detention,
including transfers, shall be made promptly available to their family members, their counsel
or any other persons having a legitimate interest in the information, unless a wish to the
contrary has been manifested by the persons [deprived of liberty ].”4
10. The two specific treaties on the subject (t he International Convention for the
Protection of All Persons from Enforced Disappearance 5 and the pioneering Inter -American
Convention on Forced Disappearance of Persons 6) uphold the same criteria. The
International Convention states the following: “For t he purposes of this Convention,
„enforced disappearance‟ is considered to be the arrest, detention, abduction or any other
form of deprivation of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or ac quiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law”. 7 The
Inter -American Convention qu alifies forced disappearance in virtually identical terms: “For
the purposes of this Convention, forced disappearance is considered to be the act of
depriving a person or persons of his or their freedom, in whatever way, perpetrated by
agents of the state or by persons or groups of persons acting with the authorization, support ,
or acquiescence of the state, followed by an absence of information or a refusal to
acknowledge that deprivation of freedom or to give information on the whereabouts of that
person, thereby impeding his or her recourse to the applicable legal remedies and
procedural guarantees”. 8
2 Declaration on the Protection of All Persons from Enforced Disappearance , adopted on 18 December
1992 by General Assembly resolution 47/133.
3 Ibid., third preambular paragraph.
4 Ibid., art. 10, paras. 1 and 2.
5 International Convention for the Protection of All Persons from Enforced Disappearance , adopted by
the United Nations General Assembly on 20 December 2006.
6 Inter -American Convention on F orced Disappearance of Persons , adopted by the General Assembly
of the Organization of American States on 9 June 1994.
7 International Convention for the Protection of All Persons from Enforced Disappearance , art. 2.
8 Inter -American Convention on Forced Disappearance of Persons , art. II.
11. The clarity of the rules laid down in these two instruments saves me from further
argument, but in order to dispel any possible doubt, and in view of th e possibility that the
duration of detention may be analysed to determine whether or not it constitutes “enforced
disappearance” or “secret detention”, in any case the International Convention for the
Protection of All Persons from Enforced Disappearance s tates emphatically that “ No one
shall be held in secret detention”. 9
12. The Rome Statute 10 (which is not a human rights treaty but an international criminal
law treaty) has been heavily criticized for not following the definitions laid down in the
internat ional human rights instruments for various types of crimes ; in the case of enforced
disappearance, it incorporates the time dimension as an element of intent on the part of the
perpetrator (the perpetrator must have intended to remove a person from the pro tection of
the law for a prolonged period of time). However, it should be noted that there is no
reference to the duration of detention: it merely has to be proved that the perpetrator
intended to remove the person from the protection of the law for a cert ain length of time .11
Thus, for example, if a person is detained or abducted by or with the acquiescence of agents
of the State , no information is provided on the place of detention and a few days later the
person concerned is found dead, or even if he succ eeds in escaping from captivity and is
reunited with his family, it is difficult to maintain that he was not the victim of enforced
disappearance, as has happened in numerous cases in many countries of the world,
particularly in South America during the mi litary dictatorships.
13. Incorporating the time dimension into the topic under discussion could have still
more serious consequences: how much time should be allowed before implement ing the
urgent action mechanisms provided for by the conventions protecti ng persons against
enforced disappearance, 12 or United Nations non -treaty mechanisms? 13 International human
rights law was very wise never to have introduced a minimum duration of detention to
establish an artificial and fragmented standard for the crime of enforced disappearance.
14. The time dimension, in the sense of requiring a minimum duration of detention, has
no place in the categorization of enforced disappearance. As regards the parameters to
apply in dealing with acts of enforced disappearance, the Human Rights Committee would
be ill -advised to use the Rome Statute as a reference, instead of continuing to be guided by
its own rich jurisprudence (which has never referred to a period of time) or by the clear
provisions of the United Nations Convention on the subject.
[Done in English, French and Spanish, the Spanish text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian , as part of the Committee‟s
annual report to the General Assembly. ]
9 International Convention for the Protection of All Persons from Enforced Disappearance , art. 17.
10 The Rome Statute establishing the International Criminal Court was adopted on 17 July 1998.
11 See “International Cri minal Court, Elements of Crimes” United Nations document
PCNICC/2000/1/Add.2 (2000), art. 7 (l) (i), para. 6.
12 See International Convention for the Protection of All Persons from Enforced Disappearance , art. 30;
and Inter -American Convention on Forced Di sappearance of Persons, art. XIV.
13 For example, the Working Group on Enforced or Involuntary Disappearances.