KURT JUDGMENT OF 25 MAY 1998
16
D. The impact of Decree no. 285
62. In previous cases against the respondent State in which they were
involved, the applicant’s representatives have pointed to certain legal
provisions which in themselves weaken the protection of the individual
which might otherwise have been afforded by the above general scheme.
Decree no. 285 modifies the application of Law no. 3713 (the Prevention of
Terrorism Act 1981), in those areas which are subject to the state of
emergency, with the effect that the decision to prosecute members of the
security forces is removed from the public prosecutor and conferred on local
administrative councils. These councils are made up of civil servants and
have been criticised for their lack of legal knowledge, as well as for being
easily influenced by the regional governor or provincial governors, who also
head the security forces.
III. RELEVANT INTERNATIONAL MATERIAL
63. The applicant as well as Amnesty International in their written
submissions to the Court have drawn attention to international material on
the issue of forced disappearances. The Commission made reference to the
following texts and decisions, which are analysed more fully in an appendix
to its report (Article 31).
A. United Nations material
64. The United Nations Declaration on the Protection of All Persons
from Enforced Disappearance (G.A. res. 47/133, 18 December 1992)
provides, inter alia:
“The systematic practice of disappearance is of the nature of a crime against
humanity and constitutes a violation of the right to recognition as a person before the
law, the right to liberty and security of the person, the right not to be subjected to
torture: it also violates or constitutes a grave threat to the right to life.”
B. Case-law of the United Nations Human Rights Committee (HRC)
65. The United Nations Human Rights Committee, acting within the
framework of the International Covenant on Civil and Political Rights
(“ICCPR”) has drawn up reports on a number of cases of forced
disappearances: Quinteros v. Uruguay (107/1981) Report of the Human
Rights Committee, GAOR, 38th Session, Supplement no. 40 (1983)
Annex XXII, § 14; Mojica v. Dominican Republic, decision of 15 July