Rights of Families of Disappeared Persons: How International Bodies Address the Needs of Families of Disappeared Persons in Europe (26) (Series on Transitional Justice)

240 Pages·2021·1.917 MB·English

by  Grazyna Baranowska

RIGHTS OF FAMILIES OF DISAPPEARED PERSONS
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11. Ilse Derluyn, Cindy Mels, Stephan Parmentier and Wouter Vandenhole (eds.), Re-Member.
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97894-000-0027-4
1 2. A nne-Marie de Brouwer, Charlotte Ku, Renée Römkens and Larissa van den Herik (eds.), Sexual
Violence as an International Crime: Interdisciplinary Approaches (2012), 978-1-78068-002-6
13. Estelle Zinsstag and Martha Albertson Fineman (eds.), Feminist Perspectives on
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978-1-78068-142-9
14. Josep M. Tamarit Sumalla, Historical Memory and Criminal Justice in Spain. A Case of Late
Transitional Justice (2013), 978-1-78068-143-6
1 5. C atherine Jenkins (ed.), Max du Plessis (ed.), Law, Nation building and Transformation
Th e South African experience in perspective (2014), 978-1-78068-184-9
16. Susanne Buckley-Zistel and Stefanie Schäfer (eds.), M emorials in Times of Transition (2014),
978-1-78068-211-2
17. Nico Wouters (ed.), Transitional Justice and Memory in Europe (1945–2013) , 978-1-78068-214-3
18. Agata Fijalkowski and Raluca Grosescu (eds.), Transitional Criminal Justice in Post-Dictatorial
and Post-Confl ict Societies , 978-1-78068-260-0
1 9. S . Elizabeth Bird and Fraser M. Ottanelli (eds.), Th e Performance of Memory as Transitional
Justice 978-1-78068-262-4
20. Bo Viktor Nylund, C hild Soldiers and Transitional Justice , 978-1-78068-394-2
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22. Francesca Capone, Reparations for Child Victims of Armed Confl ict: State of the Field and
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24. Jeremy Sarkin (ed.), Th e Global Impact and Legacy of Truth Commissions , 978-1-78068-794-0
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Series on Transitional Justice , Volume 26
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RIGHTS OF FAMILIES
OF DISAPPEARED PERSONS
How International Bodies Address

the Needs of Families of Disappeared
Persons in Europe
Gra ż yna B aranowska
Cambridge – Antwerp – Chicago

Published online by Cambridge University Press
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Rights of Families of Disappeared Persons. How International Bodies Address
the Needs of Families of Disappeared Persons in Europe
© Grażyna Baranowska 2021
Th e author has asserted the right under the Copyright, Designs and Patents Act 1988, to be identifi ed
as author of this work.
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Artwork on cover: Author Jan Jordaan, title ‘Hurt’, medium Linocut, 1999. From the Universal
Declaration of Human Rights – International Print Portfolio, Article 5, published by Art for
Humanity, South Africa, 1999.
ISBN 978-1-83970-137-5
D/2021/7849/46
NUR 828
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the British Library.
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ACKNOWLEDGEMENTS *
Th is book would not have been possible without the support that I was very
fortunate to receive. It refl ects many years of academic interest in enforced
disappearances, including during the work on my doctoral thesis. I had the
incredible privilege to begin my journey by talking with and interviewing
persons aff ected by enforced disappearances in Turkey (Istanbul and Diyarbakir)
and Cyprus in 2012. I continue to be inspired by their stories, experience, and
hospitality, as well as remain in admiration of the brave and wise lawyers, who
brought their cases to domestic and international courts.
I want to begin by expressing my gratitude to the supervisor of my doctoral
research, Prof. Roman Wieruszewski, who always encouraged me to explore
and develop my ideas. Moreover, I am indebted to my thesis co-supervisor,
Dr Katarzyna S ę kowska-Koz ł owska, for her helpful comments and feedback.
I am also very grateful for the eff orts of the reviewers, Prof. Micha ł Balcerzak
and Prof. Barbara Miko ł ajczyk.
I received the necessary fi nancial support for the research conducted through
projects from the Institute of Law Studies of the Polish Academy of Sciences,1
the National Science Centre in Poland, 2 and also from the ‘ Memory Laws in
European and Comparative Perspective ’ project.3 Moreover, I am most indebted
to the Foundation for Polish Science and the Polish Ministry of Science and
Higher Education for including me in their grant programs for young scholars.
I was fortunate to receive feedback from many individuals, whose input,
criticism, and support proved invaluable. I would like to especially thank
Prof. Ireneusz Kami ń ski, who was instrumental in my development of the
chapter on the European Court of Human Rights. I greatly benefi ted from his
insights as the lawyer in the J anowiec vs Russia case in Strasbourg (2013), and in
* Th is book is based on: Wymuszone Zaginięcia w Europe. Kształtowanie się międzynarodowych
standardów zapobiegania i egzekwowania odpowiedzialności państw, C.H. Beck, Warsaw,
2017; translation: James Hartzell.
1 Enforced disappearances in Europe is a research project awarded by Institute of Law Studies of
the Polish Academy of Sciences, 2016–2018.
2 NCN, Preludium, 2013/11/N/HS5/04044, Enforced disappearance in Europe: Development of
legal standards 2014-2016; NCN, Sonata, 2019/35/D/HS5/03700 State obligations with regard
to missing and disappeared persons under international law , 2020–2023.
3 ‘ Memory Laws in European and Comparative Perspective, ’ or MELA for short
( www.melaproject.org ), is a research consortium supported with HERA (Humanities in
European Research Area) grant no. 15.094
Intersentia v
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Acknowledgements
the subsequent communication brought to the UN Human Rights Committee.
Moreover, I am indebted to Prof. Manfred Nowak, who shared his experience of
dealing with enforced disappearances in Europe, in particular as the UN Expert
in charge of the Special Process on Missing Persons or Enforced Disappearances
and judge at the Human Rights Chamber for Bosnia and Herzegovina. Th anks
to Prof. Ariel Dulitzky, I could observe the meetings of the UN Working Group
on Enforced Disappearances in 2014, during his time as Chair-Rapporteur.
His knowledge about enforced disappearances in the Inter-American system
continues to be invaluable, much like his support. Prof. Jeremy Sarkin has been
extremely helpful both as an academic advisor and through sharing insights
from his experiences. His support and belief in this book project were among
the key factors that made it possible. I would also like to thank Prof. Gabriella
Citroni, whose work keeps inspiring me, for her excellent comments that
oft en challenge my assumptions. She remains a role model for her outstanding
academic work and involvement in the various issues regarding victims of
enforced disappearances.
Furthermore, the ideas and research on enforced disappearances and
missing persons of numerous colleagues inspired my work. In particular,
I would like to mention Prof. Olivier de Frouville (University of Paris 2,
Panthé o n-Assas), Prof. Bernard Duhaime (University of Quebec in Montreal),
Prof. Gloria Gaggioli (Geneva Academy of International Humanitarian Law and
Human Rights), Prof. S é vane Garibian (University of Geneva), Lene Guercke
(KU Lueven), Dr Nasia Hadjigeorgiou (UCLan Cyprus), Dr Rainer Huhle
(N ü rnberger Menschenrechtszentrum), Mariat Imaeva (Dublin City University),
Dr Iosif Kovras (University of Cyprus), Dr Alessandra La Vaccara (International
Commission on Missing Persons), and thank them for taking interest in my work.
Moreover, my research benefi tted from feedback during the annual
conferences of the European Union Studies Association Biennial Conference
(Miami 2017), the Association of Human Rights Institutes (Brussel 2017, Potsdam
2019), the Memory Studies Association (Madrid 2019), the International Society
of Public Law (Santiago 2019), but also conferences and workshops organised at
the Geneva Academy of International Humanitarian Law and Human Rights,
the NIOD Institute for War, Holocaust and Genocide Studies, the University of
California, Berkeley. Some fi ndings presented in this book were published earlier
in several articles, including ‘ Advances and progress in the obligation to return
the remains of missing and forcibly disappeared persons ’ (2018) 99 I nternational
Review of the Red Cross , ‘ Families of disappeared persons in the jurisprudence
of the European Court of Human Rights’ (2018) 5 European Human Rights Law
Review , and ‘ Why Enforced Disappearances are Perpetrated against Groups
as State Policy: Overlaps and Interconnections between Disappearances and
Genocide ’ (2018) 3 Catolica Law Review (with Jeremy Sarkin).
I greatly benefi ted from an encouraging and intellectually stimulating
environment while working as a Postdoctoral Researcher in an international
vi Intersentia
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Acknowledgements
research consortium ‘ Memory Laws in European and Comparative Perspective
MELA ’ , established with the Humanities in European Research Area HERA grant
no. 15.094, involving the Queen Mary University of London, the University of
Bologna, T.M.C. Asser Institute at the University of Amsterdam, and the Polish
Academy of Sciences. Th e scholarship and insight of Prof. Eric Heinze and
Prof. Emmanuela Fronza inspired me to take new paths and explore how states
deal with the past. It was a privilege to work with Dr Uladzislau Belavusau, whose
experienced guidance helped me throughout the project and ever since. I would
also like to thank fellow MELA colleagues: Anna W ó jcik, Dr Le ó n Castellanos-
Jankiewicz, Dr Paolo Caroli, Dr Nanor Kebranian, and Dr Marina B á n, with
whom I have had many fascinating discussions. I cannot thank Dr Aleksandra
Gliszczy ń ska-Grabias enough, under whose supervision I had the honour and
pleasure to work, who has been a mentor for many years, and who has off ered
me her unconditional support at all steps throughout my career.
During the last phase of work on this book project, I was fortunate to work
as a policy advisor for Barbara Lochbihler in her role as member of the UN
Committee for Enforced Disappearances, which gave me further insight into
the work of this treaty body. I enjoyed the supportive atmosphere at the German
Institute for Human Rights and wish to thank Dr Silke Vo ß -Kyeck for the great
cooperation.
My research greatly benefi ted from fruitful discussions during seminars at
the Pozna ń Human Rights Centre of the Institute of Law Studies of the Polish
Academy of Sciences, which has been my academic home for the last ten years.
Working with Prof. Roman Wieruszewski, Dr Lena Kondratiewa-Bryzik,
Dr Katarzyna S ę kowska-Koz ł owska, Dr Aleksandra Gliszczy ń ska-Grabias,
Dr Anna Hernandez-Po ł czy ń ska, Dr Ł ukasz Szoszkiewicz, and Joanna Grygiel
has been a great pleasure. I am now looking forward to continuing my academic
work on disappeared and missing persons at the Centre for Fundamental Rights
of the Hertie School, where I am starting a Marie Skł o dowska-Curie Action
project on missing migrants, under the supervision of Prof. Cathryn Costello.
Furthermore, I am grateful to the editorial board of the Intersentia
Transitional Justice series, Prof. Stephan Parmentier, Prof. Jeremy Sarkin, and
Dr Mina Rauschenbach for their support, but also the two anonymous reviewers
for their comments. Th e editorial team has been amazing, and I would like to
thank Ahmed Hegazi for the great cooperation and his understanding for my
work on the book during the pandemic, which narrowed childcare possibilities.
Finally, I would like to acknowledge my family and friends, who supported
me when it mattered the most. Special thanks to Tomek, Kostek, and Maks,
who keep bringing joy into my life, and my parents, who always encourage my
passions and believe in me.
Intersentia vii
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CONTENTS
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
List of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Chapter 1. Introduction to the Rights and Needs of Families
of Disappeared Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Short Guide to Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Th e Needs of Families of Disappeared Persons . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Basic Principles and Guidelines on the Right to a Remedy
and Reparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. Enforced Disappearances as a Pan-European Phenomenon . . . . . . . . . . . . . 15
5. Legal Developments Concerning the Obligations of States in the
Context of Enforced Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.1. Defi nitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.2. State Obligations in a Comparative Perspective . . . . . . . . . . . . . . . . . . 33
Chapter 2. Th e European Court of Human Rights and Disappeared
Persons: Broadening in Substantiating Claims and Narrowing Down
Th rough Application of Temporal Competences . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. Preliminary Remarks Concerning the Analysis of ECtHR Judgments . . . . . 37
1.1. Th e Conceptual Framework of the Analysis . . . . . . . . . . . . . . . . . . . . . 37
1.2. Th e ECtHR’s Use of the Term ‘Enforced Disappearance’ . . . . . . . . . . . 39
1.3. Admissibility of Individual Applications Concerning Enforced
Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2. Challenges to Admissibility Due to Temporal Issues . . . . . . . . . . . . . . . . . . . . 42
2.1. Enforced Disappearances as a ‘Continuing Violation’:
Development of the ECtHR’s Jurisprudence . . . . . . . . . . . . . . . . . . . . . 42
2.2. Application of the Šilih v. Slovenia Criteria to Applications
Concerning Enforced Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2.3. Application of the Temporal Admissibility Criteria in
Janowiec and Others v. Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
3. Challenges in Substantiating Claims that an Enforced Disappearance
Occurred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
3.1. Th e Relevance of the Concept of Positive Obligations
in the Context of Article 2 of the ECHR for Enforced
Disappearance Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Contents
3.1.1. Th e Evolution of Procedural Obligations with Regard
to Enforced Disappearance Cases . . . . . . . . . . . . . . . . . . . . . . . 56
3.1.2. Th e Obligation to Protect Life in Enforced Disappearance
Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3.1.3. States’ Obligations Arising from Finding the Remains
of a Disappeared Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3.1.4. Exceptional Circumstances and Post-Confl ict
Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
3.1.5. State’s Obligations with Regard to Disappearances
for which the State Authorities were not Found
to be Responsible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
3.2. Evidentiary Proceedings before the ECtHR in Cases of Enforced
Disappearances in the Context of the Right to Life . . . . . . . . . . . . . . . . 67
3.2.1. Establishment of the Facts in Cases of Enforced
Disappearances in the Context of the Right to Life . . . . . . . . . 67
3.2.2. Th e Standard of Proof ‘Beyond Reasonable Doubt’
and Circumstantial Evidence in Cases of Enforced
Disappearances in the Context of the Right to Life . . . . . . . . . 69
3.2.3. Reversal of the Burden of Proof in Cases of Enforced
Disappearances in the Context of the Right to Life . . . . . . . . . 73
3.2.4. Th e Relevance of Establishing a ‘Practice of Disappearances’
for Proving an Enforced Disappearance . . . . . . . . . . . . . . . . . . 76
3.3. Violation of the Obligations Contained in Article 38 ECHR
in Cases Concerning Enforced Disappearances . . . . . . . . . . . . . . . . . . 78
4. Recognising Families of Disappeared Persons as Victims of a Human
Rights Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.1. Families of Victims of Serious Human Rights Violations
as Victims under Article 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.2. Th e ECtHR Criteria Recognising Family Members of
Disappeared Persons as Victims of an Article 3 Violation
(Th e Çakıcı v. Turkey Criteria) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
4.2.1. Proximity of the Family Tie: Th e Parent–Child Bond . . . . . . 84
4.2.2. Th e Involvement of Applicants in the Attempts to
Obtain Information about the Disappeared Person . . . . . . . . 86
4.2.3. Th e Attitude and Reaction of State Authorities . . . . . . . . . . . . 89
4.3. Duration of the Disappearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
4.4. Recognition of the Family Members as Victims of a Violation
of Article 3 and the Attribution of the Disappearance to the State . . . . . 93
4.5. Th e Right to Truth and the Procedural Violation of Article 3
in Cases Concerning Enforced Disappearances . . . . . . . . . . . . . . . . . . 96
4.6. Violations of Article 8 ECHR with Respect to the Family
Members of Disappeared Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
x Intersentia
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