General Assembly resolution 47/133 of 18
December 1992
The General Assembly,
Considering that, in accordance with the principles proclaimed in the Charter
of the United Nations and other international instruments, recognition of the
inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world,
Bearing in mind the obligation of States under the Charter, in particular
Article 55, to promote universal respect for, and observance of, human rights
and fundamental freedoms,
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or
abducted against their will or otherwise deprived of their liberty by officials
of different branches or levels of Government, or by organized groups or
private individuals acting on behalf of, or with the support, direct or
indirect, consent or acquiescence of the Government, followed by a refusal to
disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside
the protection of the law,
Considering that enforced disappearance undermines the deepest values of any
society committed to respect for the rule of law, human rights and fundamental
freedoms, and that the systematic practice of such acts is of the nature of a
crime against humanity,
Recalling its resolution 33/173 of 22 December 1978, in which it expressed
concern about the reports from various parts of the world relating to enforced
or involuntary disappearances, as well as about the anguish and sorrows caused
by those disappearances, and called upon Governments to hold law enforcement
and security forces legally responsible for excesses which might lead to
enforced or involuntary disappearances of persons,
Recalling also the protection afforded to victims of armed conflicts by the
Geneva Conventions of 12 August 1949 and the Additional Protocols thereto, of
1977,
Having regard in particular to the relevant articles of the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights, which protect the right to life, the right to liberty and
security of the person, the right not to be subjected to torture and the right
to recognition as a person before the law,
Having regard also to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, which provides that States parties shall
take effective measures to prevent and punish acts of torture,
Bearing in mind the Code of Conduct for Law Enforcement Officials, the Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials, the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power and the Standard Minimum Rules for the Treatment of Prisoners,
Affirming that, in order to prevent enforced disappearances, it is necessary to
ensure strict compliance with the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment contained in the annex to
its resolution 43/173 of 9 December 1988, and with the Principles on the
Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions, set forth in the annex to Economic and Social Council resolution
1989/65 of 24 May 1989 and endorsed by the General Assembly in its resolution
44/162 of 15 December 1989,
Bearing in mind that, while the acts which comprise enforced disappearance
constitute a violation of the prohibitions found in the aforementioned
international instruments, it is none the less important to devise an
instrument which characterizes all acts of enforce disappearance of persons as
very serious offences and sets forth standards designed to punish and prevent
their commission,
Proclaims the present Declaration on the
Protection of All Persons from Enforced Disappearance, as a body of principles
for all States;
Urges that all efforts be made so that the
Declaration becomes gener
ally known and respected;
Article 1
Any act of enforced disappearance is an offence
to human dignity. It is condemned as a denial of the purposes of the Charter of
the United Nations and as a grave and flagrant violation of the human rights
and fundamental freedoms proclaimed in the Universal Declaration of Human
Rights and reaffirmed and developed in international instruments in this field.
Any act of enforced disappearance places the persons subjected thereto outside
the protection of the law and inflicts severe suffering on them and their
families. It constitutes a violation of the rules of international law
guaranteeing, inter alia, the right to recognition as
a person before the law, the right to liberty and security of the person and
the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment. It also violates or constitutes a grave threat to the
right to life.
Article 2
No State shall practise,
permit or tolerate enforced disappearances.
States shall act at the national and regional levels and in cooperation with
the United Nations to contribute by all means to the prevention and eradication
of enforce disappearance.
Article 3
Each State shall take effective legislative,
administrative, judicial or other measures to prevent and terminate acts of
enforced disappearance in any territory under its jurisdiction.
Article 4
All acts of enforced disappearance shall be
offences under criminal law punishable by appropriate penalties which shall
take into account their extreme seriousness.
Mitigating circumstances may be established in national legislation for persons
who, having participated in enforced disappearances, are instrumental in
bringing the victims forward alive or in providing voluntarily information
which would contribute to clarifying cases of enforced disappearance.
Article 5
In addition to such criminal penalties as
are applicable, enforced disappearances render their perpetrators and the State
or State authorities which organize, acquiesce in or tolerate such
disappearances liable under civil law, without prejudice to the international
responsibility of the State concerned in accordance with the principles of
international law.
Article 6
No order or instruction of any public
authority, civilian, military or other, may be invoked to justify an enforced
disappearance. Any person receiving such an order or instruction shall have the
right and duty not to obey it.
Each State shall ensure that orders or instructions directing, authorizing or
encouraging any enforced disappearance are prohibited.
Training of law enforcement officials shall emphasize the provisions in
paragraphs 1 and 2 of the present article.
Article 7
No circumstances whatsoever, whether a
threat of war, a state of war, internal political instability or any other
public emergency, may be invoked to justify enforced disappearances.
Article 8
No State shall expel, return (refouler) or extradite a person to another State where there
are substantial grounds to believe that he would be in danger of enforced
disappearance.
For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including,
where applicable, the existence in the State concerned of a consistent pattern
of gross, flagrant or mass violations of human rights.
Article 9
The right to a prompt and effective judicial
remedy as a means of determining the whereabouts or state of health of persons
deprived of their liberty and/or identifying the authority ordering or carry
out the deprivation of liberty is required to prevent enforced disappearances
under all circumstances, including those referred to in article 7 above.
In such proceedings, competent national authorities shall have access to all
places where persons deprived of their liberty are being held and to each part
of those places, as well as to any place in which there are grounds to believe
that such persons may be found.
Any other competent authority entitled under the law of the State or by any
international legal instrument to which the State is a party may also have
access to such places.
Article 10
Any person deprived of liberty shall be held
in an officially recognized place of detention and, in conformity with national
law, be brought before a judicial authority promptly after detention.
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 to any other persons having a legitimate
interest in the information unless a wish to the contrary has been manifested
by the persons concerned.
An official up-to-date register of all persons deprived of their liberty shall
be maintained in every place of detention. Additionally, each State shall take
steps to maintain similar centralized registers. The information contained in
these registers shall be made available to the persons mentioned in the
preceding paragraph, to any judicial or other competent and independent
national authority and to any other competent authority entitled under the law
of the State concerned or any international legal instrument to which a State
concerned is a party, seeking to trace the whereabouts of a detained person.
Article 11
All persons deprived of liberty must be
released in a manner permitting reliable verification that they have actually
been released and, further, have been released in conditions in which their
physical integrity and ability fully to exercise their rights are assured.
Article 12
Each State shall establish rules under its
national law indicating those officials authorized to order deprivation of liberty,
establishing the conditions under which such orders may be given, and
stipulating penalties for officials who, without legal justification, refuse to
provide information on any detention.
Each State shall likewise ensure strict supervision, including a clear chain of
command, of all law enforcement officials responsible for apprehensions,
arrests, detentions, custody, transfers and imprisonment, and of other
officials authorized by law to use force and firearms.
Article 13
Each State shall ensure that any person
having knowledge or a legitimate interest who alleges that a person has been
subjected to enforced disappearance has the right to complain to a competent
and independent State authority and to have that complaint promptly, thoroughly
and impartially investigated by that authority. Whenever there are reasonable
grounds to believe that an enforced disappearance has been committed, the State
shall promptly refer the matter to that authority for such an investigation,
even if there has been no formal complaint. No measure shall be taken to
curtail or impede the investigation.
Each State shall ensure that the competent authority shall have the necessary
powers and resources to conduct the investigation effectively, including powers
to compel attendance of witnesses and production of relevant documents and to
make immediate on-site visits.
Steps shall be taken to ensure that all involved in the investigation,
including the complainant, counsel, witnesses and those conducting the investigation,
are protected against ill-treatment, intimidation or reprisal.
The findings of such an investigation shall be made available upon request to
all persons concerned, unless doing so would jeopardize an ongoing criminal
investigation.
Steps shall be taken to ensure that any ill-treatment, intimidation or reprisal
or any other form of interference on the occasion of the lodging of a complaint
or during the investigation procedure is appropriately punished.
An investigation, in accordance with the procedures described above, should be
able to be conducted for as long as the fate of the victim of enforced
disappearance remains unclarified.
Article 14
Any person alleged to have perpetrated an
act of enforced disappearance in a particular State shall, when the facts
disclosed by an official investigation so warrant, be brought before the
competent civil authorities of that State for the purpose of prosecution and
trial unless he has been extradited to another State wishing to exercise
jurisdiction in accordance with the relevant international agreements in force.
All States should take any lawful and appropriate action available to them to
bring to justice all persons presumed responsible for an act of enforced
disappearance, who are found to be within their
jurisdiction or under their control.
Article 15
The fact that there are grounds to believe
that a person has participated in acts of an extremely serious nature such as
those referred to in article 4, paragraph 1, above, regardless of the motives,
shall be taken into account when the competent authorities of the State decide
whether or not to grant asylum.
Article 16
Persons alleged to have committed any of the
acts referred to in article 4, paragraph 1, above, shall be suspended from any
official duties during the investigation referred to in article 13 above.
They shall be tried only by the competent ordinary courts in each State, and
not by any other special tribunal, in particular military courts.
No privileges, immunities or special exemptions shall be admitted in such
trials, without prejudice to the provisions contained in the Vienna Convention
on Diplomatic Relations.
The persons presumed responsible for such acts shall be guaranteed fair
treatment in accordance with the relevant provisions of the Universal
Declaration of Human Rights and other relevant international agreements in
force at all stages of the investigation and eventual prosecution and trial.
Article 17
Acts constituting enforced disappearance
shall be considered a continuing offence as long as the perpetrators continue
to conceal the fate and the whereabouts of persons who have disappeared and
these facts remain unclarified.
When the remedies provided for in article 2 of the International Covenant on
Civil and Political Rights are no longer effective, the statute of limitations
relating to acts of enforced disappearance shall be suspended until these
remedies are re-established.
Statutes of limitations, where they exist, relating to acts of enforced disappearance
shall be substantial and commensurate with the extreme seriousness of the
offence.
Article 18
Persons who have or are
alleged to have committed offences referred to in article 4, paragraph 1,
above, shall not benefit from any special amnesty law or similar measures that
might have the effect of exempting them from any criminal proceedings or
sanction.
In the exercise of the right of pardon, the extreme seriousness of acts of
enforced disappearance shall be taken into account.
Article 19
The victims of acts of enforced
disappearance and their family shall obtain redress and shall have the right to
adequate compensation, including the means for as complete a
rehabilitation as possible. In the event of the death of the victim as a
result of an act of enforced disappearance, their dependents shall also be
entitled to compensation.
Article 20
States shall prevent and suppress the
abduction of children of parents subjected to enforced disappearance and of
children born during their mother's enforced disappearance, and shall devote
their efforts to the search for and identification of such children and to the
restitution of the children to their families of origin.
Considering the need to protect the best interests of children referred to in
the preceding paragraph, there shall be an opportunity, in States which
recognize a system of adoption, for a review of the adoption of such children
and, in particular, for annulment of any adoption which originated in enforced
disappearance. Such adoption should, however, continue to be in force if
consent is given, at the time of the review, by the child's closest relatives.
The abduction of children of parents subjected to enforced disappearance or of
children born during their mother's enforced disappearance, and the act of
altering or suppressing documents attesting to their true identity, shall
constitute an extremely serious offence, which shall be punished as such.
For these purpose, States shall, where appropriate, conclude bilateral and multilateral
agreements.
Article 21
The provisions of the present Declaration
are without prejudice to the provisions enunciated in the Universal Declaration
of Human Rights or in any other international instrument, and shall not be
construed as restricting or derogating from any of those provisions.
