05 Jul A Lost Opportunity: The Human Rights Committee Decision on an Enforced Disappearance Case During the Civil War in Spain
[Carlos Rafael Urquilla Bonilla is a Senior Attorney at Inter-American Institute of Social Responsibility and Human Rights (IIRESODH)]
In August 1936, husband and wife Antonio Alomar Mas and Margalida Jaume Vandrel were forcibly disappeared in Manacor (Mallorca) leaving two daughters behind at ages 8 and 11 amidst the Civil War. Their case is a paradigmatic example of the multiple gross human rights violations committed during the Spanish Civil War and the Francoist dictatorship.
As of 2006, both Francisca Alomar Jaume and her niece Bartolomea Maria Riera (daughter of Antonia Alomar Jaume, deceased) filed legal actions on the disappearances of their parents and grandparents, respectively, but all these actions —lodged with the Constitutional Court, Supreme Court, National Court, and local justice of the Balearic Islands— were systematically dismissed. Even the Spanish authorities persistently blocked the exercise of universal jurisdiction by Argentinian authorities. In 2016, after exhumations in a mass grave near Manacor, Francisca and her niece filed a new petition to the local courts, which was likewise dismissed. On 14 January 2019, after this exhaustive domestic judicial back and forth, they submitted a communication to the Human Rights Committee (hereinafter “HRC”).
After years of impunity and lack of compliance with international standards with regards to truth, justice, and reparation, recognized repeatedly by international bodies, including the HRC, last October 2020 their case was declared inadmissible. This decision means, once again, denying access to justice to their relatives who have actively sought an investigation of what happened to their beloved ones for more than 15 years. It also shows a regressive understanding of the continuous nature of the obligation to investigate cases of enforced disappearance which collides with previous case-law from the Committee itself (Anderson v. Australia, Avadanov v. Azerbaijan and Kusherbaev v. Kazakhstan, among others) and other international bodies and courts.
The HRC declared the case inadmissible on the grounds that it is not competent ratione temporis. The Committee considers itself not competent because the International Covenant on Civil and Political Rights and its Optional Protocol entered into force —for Spain— on 27 July 1977 and 25 April 1985, respectively. The Committee recognizes that, even if the events occurred before the entry into force of the Covenant and the Optional Protocol, there may be an obligation under these instruments to investigate cases of enforced disappearance because their continuing effects continue to the present. However, it says that this is exceptional, and considers that it has no jurisdiction in this case because the events occurred “so long ago” that “it would not be reasonable to consider that the Covenant’s ratification implies for Spain an active duty to investigate enforced disappearances that occurred in the very distant past” (par. 7.6., unofficial translation). The Committee rests on K.K. and others v. Russia —where it admitted the ratione temporis objections argued by Russia regarding executions of Polish prisoners of war in Katyn and other places, ordered by Stalin and the Politburo in 1940— to raise an argument supposedly based on precedent.
Nevertheless, here is a logical error; more precisely, a fallacy. There are no analogies between both cases, but a false equivalence. For clarity, it is necessary to distinguish between a continuous offense and an instant offense. A continuous offense has a starting point well defined in time but does not yet have an endpoint. An instant offense has both a starting point and an ending point well defined in time. The K.K. and other cases involved extrajudicial executions, thus an instant offence. The enforced disappearance of persons is a continuous offense that will only cease until the disappeared person reappears or his/her remains identified.
Approximately 34 years ago, the Inter-American Court of Human Rights forwarded the first case on enforced disappearance of persons, when international law just began addressing this offense. In that first judgment, the Inter-American Court sustained that enforced disappearance of human beings constitutes a multiple and continuous violation of numerous rights (Velásquez Rodríguez, Series C No. 4, par. 155). From then on, it has not averted its own legal position. Among others issued until 28 October 2020: Godínez Cruz, Serie C No. 5, par. 163; Blake, Serie C No. 36, par. 65; Goiburú y otros, Serie C No. 153, par. 83; Heliodoro Portugal, Serie C No. 186, par. 34; Radilla Pacheco, Serie C No. 209, par. 24; Ibsen Cárdenas e Ibsen Peña, Serie C No. 217, par. 82; Gomez Lund and others (“Guerrilha do Araguaia”), Serie C No. 219, par. 17; González Medina and family, Serie C No. 240, par. 51; Rodríguez Vera and others (“The Disappeared from the Palace of Justice”), Serie C No. 287, par. 228; Peasant Community of Santa Bárbara, Serie C No. 299, par. 165; Tenorio Roca and others, Serie C No. 314, par. 143;Residents of the Village of Chichupac and Neighboring Communities, Municipality of Rabinal, Serie C No. 328, par. 141; Terrones Silva and others, Serie C No. 360, par. 169; Isaza Uribe and others, Serie C No 363, par. 81; and Alvarado Espinoza and others, Serie C No. 370, par. 165.
Thus, the Inter-American Court has repeatedly anticipated the differential procedural effect between a continuous offense and an instant offense. To the former, there is no ratione temporis limitation in the control organs’ competence. Here the Serrano Cruz Sisters case should be cited as a differential case in the jurisprudence of the Inter-American Court. In this case —two little girls who disappeared in 1982, in the context of the internal armed conflict in El Salvador— the State recognized the contentious jurisdiction of the Inter-American Court but limited it for events whose first act of execution is after 6 June 1995. This time-limit clause enabled the Inter-American Court to conclude its lack of competence to hear the merits of the girls’ disappearance (Series C No. 118, par. 79) but on the contrary, it heard the merits of alleged violations to the rights to judicial protection and a fair trial because the first act of such violations occurred after 6 June 1995 (Id., pars. 84-85). Similar clauses formulated by Chile, France, or Sri Lanka are still time-limiting the HRC’s competence. Spain did not make any similar limitation.
In the same way, on 10 May 2001, the European Court, in the interstate case Cyprus v. Turkey, addressing the enforced disappearances that occurred in the context of Turkey’s military operations in Cyprus, carried out between July and August 1974, characterized them as continuous violations because the whereabouts or victims’ fate of such disappearances remained unknown (par. 136). Subsequently, on 18 September 2019, the same court, in Varnava et al., based on the above factual context, rejected the ratione temporis objection filed by Turkey after recognizing the continuous nature of enforced disappearances. Furthermore, it also added that the reasonable attitude of the victims’ next-of-kin should be valued, both concerning domestic remedies and access to subsidiary international mechanisms (pars. 159, 161, 166, and 172). In other words, the continuous nature of the enforced disappearances and the petitioners’ attitude towards justice must be considered to admit an extemporary communication submission. As the European Court did in Karabardak and others and Baybora and others, only in the event of manifest inactivity from the victim’s next-of-kin is it possible to reject the cases based on a long time elapsed.
In this vein, the HRC decision is also a missed opportunity to recognize the effect of enforced disappearances on the victims. In its paragraph 7.7 the HRC holds them accountable for not having reported the facts before, stating: “The Committee considers that even communications alleging enforced disappearances should not be submitted with undue or unexplained delay by the authors, once they realize, or should realize, that no investigation has been initiated or that an investigation has fallen into inaction or has become ineffective, and when, in any of these eventualities, there is no realistic likelihood for an effective investigation into the fate of the victims, the possible perpetrators and the whereabouts of the mortal remains, given that the events occurred 85 years ago.” (Unofficial translation). This statement shows a clear disregard to the States obligations regarding enforced disappearances but also to the physiological effects on victims of a crime of this nature, who, in the particular case of Spain are still suffering the effects of the impunity pact embodied in the Amnesty Law and the higher courts restrictive case law.
On a positive note, six members of the Committee spoke against the inadmissibility with respect to the relatives of the disappeared victims because they understand that the relatives do not have effective remedies in Spain to access justice and that, had it been admitted, the violation of their rights would have been recognized. Unlike the case against Russia mentioned above, in this occasion there were more dissents. This shows that the decision was controversial, and that the Committee’s position may be reevaluated in future cases.
In fact, in the recent case of the Roy Rivera Hidalgo v. Mexico the HRC calls on Mexico to investigate his disappearance, elaborating a profound explanation on the continuous nature of the consequences of enforced disappearances and the obligation to investigate, prosecute and punish those responsible and recognizing the obligation to repair the suffering of their relatives.
Instead of the discouraging effect that the case of the Alomar Jaume family might have had on the victims of the Spanish Civil War and the dictatorship, this decision will foster more petitioners from Spain to keep demanding before international bodies the recognition of the human rights violations that the State and Spanish courts have for far too long forbidden.