United Nations

A/RES/47/133


General Assembly

Distr. GENERAL  

18 December 1992

ORIGINAL:
ENGLISH



                                                   A/RES/47/133
                                                   92nd plenary meeting
                                                   18 December 1992
 
 
      47/133.  Declaration on the Protection of All Persons from
                     Enforced Disappearance
 
      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 20 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
sorrow 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 enforced disappearance of
persons as very serious offencesand sets forth standards designed to punish
and prevent their commission,
 
      1.    Proclaims the present Declaration on the Protection of All Persons
from Enforced Disappearance, as a body of principles for all States;
 
      2.    Urges that all efforts be made so that the Declaration becomes
generally known and respected;
 
                                   Article 1
 
      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.
 
      2.    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
 
      1.    No State shall practise, permit or tolerate enforced
disappearances.
 
      2.    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 enforced 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
 
      1.    All acts of enforced disappearance shall be offences under
criminal law punishable by appropriate penalties which shall take into account
their extreme seriousness.
 
      2.    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
 
      1.    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.
 
      2.    Each State shall ensure that orders or instructions directing,
authorizing or encouraging any enforced disappearance are prohibited.
 
      3.    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
 
      1.    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.
 
      2.    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
 
      1.    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 carrying out the
deprivation of liberty is required to prevent enforced disappearances under
all circumstances, including those referred to in article 7 above.
 
      2.    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.
 
      3.    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
 
      1.    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.
 
      2.    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.
 
      3.    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
 
      1.    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.
 
      2.    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
 
      1.    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.
 
      2.    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.
 
      3.    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.
 
      4.    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.
 
      5.    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.
 
      6.    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
 
      1.    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.
 
      2.    They shall be tried only by the competent ordinary courts in each
State, and not by any other special tribunal, in particular military courts.
 
      3.    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.
 
      4.    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
 
      1.    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.
 
      2.    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.
 
      3.    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
 
      1.    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.
 
      2.    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
dependants shall also be entitled to compensation.
 
                                  Article 20
 
      1.    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.
 
      2.    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.
 
      3.    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.
 
      4.    For these purposes, 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.