“States should support the establishment of effective and independent national or regional truth-seeking initiatives. As to existing initiatives, countries of the former Yugoslavia should take ownership of RECOM (Regional commission for the establishment of facts about war crimes and other serious violations of human rights committed in the former Yugoslavia)”

Introduction

1. The Council of Europe Commissioner for Human Rights (the Commissioner) actively supports the work of human rights defenders, including those who are at risk, and promotes the development of an environment conducive to their work. The protection of human rights defenders, especially those working in difficult situations, remains a major issue in the Council of Europe area. Human rights organisations and defenders are key partners of the Commissioner.

2. The Commissioner regularly raises issues related to human rights defenders, including concerns about restrictions and obstacles to their work, in his country and thematic work, as well as through third party interventions before the European Court of Human Rights (the Strasbourg Court).

3. Since 2008 the Commissioner has met annually with different groups of human rights defenders from the Council of Europe area in a round-table format. From 2012 several thematic consultations have taken place. Events on post-war justice and durable peace in the former Yugoslavia (2012); the protection of migrant rights in Europe (2012); human rights and the security sector (2013); and women’s rights and gender equality in Europe (2015) gathered human rights defenders with relevant thematic expertise. These round-tables resulted in fruitful discussions and helped develop the Commissioner’s country and thematic work in the given areas and improve the support given by his Office to human rights defenders.

4. The Office of the Commissioner organised a round-table with human rights defenders on the topic of missing persons and victims of enforced disappearance in Europe on 30 June and 1 July 2016 in Strasbourg. The Commissioner has long focused on transitional justice and human rights protection in his country and thematic work. He has placed particular emphasis on the fight against impunity for serious human rights violations, including enforced disappearances, and on the rights of victims of those crimes, missing persons, the human rights of forcibly displaced persons, institutional reforms to ensure non-repetition and truth-seeking. These issues were addressed in some of the Commissioner’s reports, such as those on Croatia, “the former Yugoslav Republic of Macedonia”, Montenegro, Serbia, and Ukraine.

5. In his 2014 Human Rights Comment on missing persons, the Commissioner recalled that thousands of persons remain missing in Europe decades after the demise of dictatorships and the end of armed conflicts. The lack of political will, limited national capacity in this context, including the lack of qualified forensic experts in the countries concerned, and the lack of co-operation between former rival parties are among the reasons for the slow progress in establishing the fate of missing persons and victims of enforced disappearance in Europe. The Commissioner moreover underlined that human rights defenders and lawyers working on enforced disappearances are often the targets of threats, intimidation and reprisals. In his 2015 Human Rights Comment “Armenian-Turkish reconnections and human rights”, the Commissioner recalled the importance of dealing with past massive human rights violations and pointed to the important role of civil society in this context.

6. The round-table gathered human rights defenders from over 20 countries of the Council of Europe area, the UN Special Rapporteur on the situation of human rights defenders, Michel Forst, and a member of the UN Working Group on Enforced or Involuntary Disappearances (WGEID), Henrikas Mickevičius, as well as Council of Europe representatives.

7. The objective of this round-table was to further discuss and promote the recommendations contained in the Commissioner’s Issue Paper published in March 2016 on Missing persons and victims of enforced disappearance in Europe. It also provided an opportunity to the participants to exchange additional information on the situation in European countries affected by these issues and of human rights defenders working on transitional justice processes. The discussions aimed to identify ways to enhance the fulfilment of state obligations in relation to missing persons and victims of enforced disappearance, as well as to improve the working environment for human rights defenders active in this field.

8. The discussions focused on the following themes: establishing the truth; eradicating impunity and ensuring reparation for the victims; the situation of human rights defenders working on issues related to missing persons, enforced disappearances and transitional justice. The present report constitutes a concise summary of the trends and proposals identified during the discussions in relation to these themes.

9. The discussions were aimed at helping the Commissioner to further develop his work on transitional justice and to support human rights defenders, in particular those in a difficult situation. The Commissioner wishes to express his sincere gratitude to the participants of this round-table for their valuable contributions to the debate.

I. Establishing the truth

10. Establishing the truth about serious human rights violations, including cases of missing persons and enforced disappearances, as well as recognising and remembering them, is essential for achieving lasting peace and reconciliation in a cohesive and pluralistic democratic society. It is illusory to think that these violations will fall into oblivion, especially if no effort is made to face abuses. Dealing with the past is not a task for the criminal justice system alone (i.e. retributive justice). The healing process also goes through restorative approaches. Working with the victims and survivors from all communities is part of it.

11. In Europe, thousands of cases of missing persons and enforced disappearance remain unresolved, perpetuating the suffering of their loved ones, which is passed on from one generation to another. These cases are thus not an issue of the past, irrespective of when they occurred.

Domestic legal and institutional frameworks

12. Several Council of Europe member states have not as yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance (“the Convention”).As of January 2017, only fifteen Council of Europe member states have recognised the competence of the Committee on Enforced Disappearances to receive and examine individual and inter-state complaints. Moreover, those states which are party to the Convention have not always aligned their national legislation and practice with the Convention. Participants highlighted the lack of adequate legal provisions regulating the situation and status of missing and forcibly disappeared persons and their relatives in many European countries. For example, relatives are compelled to declare the death of missing or forcibly disappeared persons whose fate is not yet clarified in order to be able to enjoy their rights, such as those related to inheritance and social welfare. This often proves to be very traumatising for the relatives, as they sometimes feel they are being forced “to kill” their loved ones.

13. Existing legal provisions related to forcibly disappeared and missing persons appear to lack effectiveness. For example, in Bosnia and Herzegovina, the Law on Missing Persons has not been adequately implemented in practice, notably as regards the establishment of the Fund for Support to the Families of Missing Persons envisaged by that law. While the law in Kosovo concerning missing persons applies to those who were killed from 1 January 1998 to 31 December 2000, families of those persons who went missing after June 1999 (mostly members of non-majority communities) and whose remains were identified and handed over to the family are not entitled to reparation, due to the fact that they are no longer regarded as “missing” but “killed”, and another law on killed civilians recognises as victims only those killed from 1 January to 20 June 1999. A participant suggested that it might be better to have legal provisions concerning missing and forcibly disappeared persons and their relatives included under different pieces of legislation, rather than having a unique law which may suffer lack of implementation as a whole. In fact, an effective, comprehensive and harmonised legal framework to deal with enforced disappearances requires that provisions are adopted at least in criminal, civil, family and administrative law.

14. Participants pointed to the inadequate codification of the crime of enforced disappearance in national legislation. When Council of Europe member states codify it as such, the definition does not always reflect the complexity of the crime.6 In a number of states, acts of enforced disappearance are qualified as kidnapping, illegal deprivation of liberty or trafficking in persons. While any of those offences may form part of an enforced disappearance, none of them alone is sufficient to cover all the elements of an enforced disappearance. Certain other states have taken the positive step of including the notion of “enforced disappearance” in national legislation and codifying it as part of a crime against humanity; however, this applies only to acts committed as part of a deliberate widespread or systematic attack against a civilian population and as such is an unduly restrictive approach, leaving many acts outside the scope of the legislation concerned and the jurisdiction of the national courts. Some participants raised cases of persons who were forcibly disappeared and then exchanged against other detainees in the framework of the conflict in Ukraine, stressing that these persons should be considered as victims of enforced disappearance.

15. It was assessed that the work and effectiveness of national bodies competent on matters related to missing persons, when they exist, were negatively affected by political considerations, lack of resources and insufficient cooperation with civil society actors, including human rights defenders and associations of families of missing persons. In Ukraine, the Commissioner recommended the establishment of an independent and impartial mechanism for the search of missing persons composed of representatives of all sides to the conflict.

16. In Europe, there are very few instances of national or regional truth commissions. Most of the attempts took place in the countries of the former Yugoslavia following wars that erupted in the 1990’s. Several participants referred to the important work of the RECOM initiative (initiative aiming to establish a regional commission for the establishment of facts about war crimes and other serious human rights violations committed in the former Yugoslavia from January 1, 1991 to December 31, 2001), which was established by civil society actors and is now in need of states’ support. Finally, it was also stressed that very few countries in Europe recognise the right to the truth in relation to disappeared and missing persons, which is widely recognised in international law.

Search for and exhumation of missing persons and victims of enforced disappearance

17. During the discussion it was stressed that slow progress was made in these fields, also due to the fact that it depends on governments’ political agendas. Bosnia and Herzegovina stands out as the most effective example in this respect, considering that about 70% of missing persons has been accounted for so far. More means and resources should be dedicated to search, exhumation and identification processes, including from local and regional authorities. Indeed, in Spain, for example, regional entities started only in the 2000’s to be actively involved in the location of mass graves, as well as exhumation and identification of bodies of civil war and dictatorship victims. Some participants mentioned that these processes, such as DNA identification, can be flawed at times.

18. Search, exhumation and identification may have a criminal aspect as they can provide evidence in criminal proceedings in cases of enforced disappearance. However, several participants reported that even in cases where mass graves have been located and bodies of missing and forcibly disappeared persons have been identified and handed over to their relatives, investigations have not taken place and perpetrators have not been sanctioned (see Section 2).

19. The opening of archives is an important element in locating mass graves and searching for forcibly disappeared and missing persons. However, this aspect remains problematic in a number of states, such as Serbia and Cyprus. However, this aspect remains problematic as regards enforced disappearances and persons who went missing in certain states, such as Serbia and Cyprus. In the latter case, the archives which would need to be opened are in Turkey.

Proposals identified during the discussion

20. Clarifying the fate of missing persons and victims of enforced disappearance should be a matter of priority for the governments concerned, especially considering that this task is increasingly difficult with the passing of time. The involvement of international and European intergovernmental actors, including the European Union and the Council of Europe, is crucial for advancing transitional justice issues, including by providing assistance to the states concerned. Inter-state cooperation to effectively solve cases of missing persons and enforced disappearance must be encouraged; in particular, there should be mutual information-sharing and assistance to victims.

21. Enforced disappearance should be codified by all Council of Europe member states as a separate continuous criminal offence in national law. Those who have not ratified the UN Convention for the Protection of All Persons from Enforced Disappearance should do so without delay. Member states should expressly recognise the competence of the Committee on Enforced Disappearances to receive and examine individual and inter-state complaints pursuant to Articles 31 and 32 of the Convention.

22. States should support the establishment of effective and independent national or regional truth-seeking initiatives. As to existing initiatives, countries of the former Yugoslavia should take ownership of RECOM. States are urged to ensure that information held in state and military archives on missing persons and victims of enforced disappearance is properly assembled and made accessible to the public. In this regard, all member states should ratify the Council of Europe Convention on Access to Official Documents.

23. A system of reporting cases of missing persons and enforced disappearance and of verification of such reports could usefully be established at national level.

24. The search for gravesite locations (including mass graves)and exhumation of remains is a matter of first priority. This requires close cooperation between various actors, including families of the victims, local communities, judicial and law enforcement authorities as well as civil society organisations. It is also necessary to enhance national expertise concerning the management, identification and recovery of mortal remains of missing persons and victims of enforced disappearance.

25. Instead of having to declare the death of their relatives, the families of missing persons and forcibly disappeared persons should be issued a “certificate of absence” to regulate the legal situation in fields such as social welfare, financial matters, family law and property rights. This must be without prejudice to the obligation to continue the investigation until the fate of the missing or disappeared person has been clarified.

II. Eradicating impunity and ensuring reparation for the victims

26. Impunity for crimes of enforced disappearance goes hand in hand with impunity for other serious human rights violations and results in the recurrence of violations. Impunity sometimes has old roots, notably when past violations have not been acknowledged by the states concerned. Some participants recalled the important relation between justice, peace and reconciliation.

Prosecution and punishment of perpetrators

27. As briefly evoked above, location of mass graves and exhumation of bodies do not always result in the opening of investigations and the sanctioning of perpetrators. Even where an investigation is launched there have been several flaws that were highlighted by the participants and have impeded the effectiveness of the proceedings.

28. First, the qualification of the crime is often not adequate because of improper definition in legislation (see Section 1) and the scope of prosecution is limited: in some situations, the systematic and/or widespread character of enforced disappearances is not considered.

29. Second, cases may be closed due to statutes of limitation after lengthy investigations. In some cases, participants pointed to the long time that elapsed from the moment of disappearances, putting into question the genuine will of state authorities to examine cases. For example, in Belarus, over 20 years passed since the disappearance of political opponents and the relatives complained of the investigations’ ineffectiveness. In Turkey, a large portion of the investigations into cases of enforced disappearance that occurred in the 1990’s already reached the 20-years statute of limitation, or will soon do so. Participants also raised excessively lengthy trials. The UN WGEID assessed that the qualification of any instance of enforced disappearance as not being subjected to statutes of limitation is a concrete guarantee against impunity.9 In any case, pursuant to international law, even for those states that apply a statute of limitation, in cases of enforced disappearance it must be of long duration and proportionate to the extreme seriousness of the offence. In particular, taking into account the continuous nature of the offence, the statute of limitation runs only from the moment when the offence ceases, i.e. when the fate and whereabouts of the victim are established with certainty.

30. Besides the statutes of limitations, other impediments to investigating crimes of enforced disappearance put forward by the authorities may be: amnesty laws, death of perpetrators, death of victims or a situation of conflict (e.g. Ukrainian authorities have not investigated enforced disappearances in territories which fall out of their control).

31. Third, participants referred to the reluctance of certain authorities to punish members of the state executive for these crimes. In some instances, those investigating the crimes are sometimes the direct perpetrators or close to them, impeding the independence and impartiality of the investigation process. It has also appeared difficult to launch investigations on the basis of command responsibility and thus to bring senior officials to account.

32. As a result, perpetrators are not held to account, while some of them even continue to serve in law enforcement, security or military structures. Several participants pointed to the lack of vetting processes for those serving in state structures. In some cases, victims come across their perpetrators in their everyday life.

33. Another concern relates to the lack or very slow implementation by respondent states of the judgments of the European Court in cases of missing persons and enforced disappearance, thus failing to fulfil their obligations under the European Convention on Human Rights. It appears that states, such as the Russian Federation and Turkey, which were found to have committed violations by the Strasbourg Court on a number of cases, have not carried out effective investigations following the judgments.

34. One participant highlighted the importance of applying the principles of universal jurisdiction for crimes under international law to cases of enforced disappearance. For example, as a result of an investigation opened by Argentina into crimes against humanity in Spain on the basis of the universal jurisdiction principle, exhumations were carried out and remains of disappeared persons were returned to the families.

Support and reparation for victims of enforced disappearance

35. Much remains to be done for missing persons, victims of enforced disappearance and their families. Many participants noted that the level of protection for witnesses and victims of enforced disappearance remains insufficient. Instances of intimidation and pressure against witnesses and victims were documented, including in the course of investigations. Corresponding programmes are not adequately resourced and staffed. In Bosnia and Herzegovina, a witness support project initiated by NGOs, aiming to establish institutional networks with the participation of various stakeholders (e.g. prosecutor’s offices, courts, police, centre for social welfare, etc.), is blocked in one part of the country.

36. Participants reported that in certain cases victims of enforced disappearance and their families did not have adequate access to the investigation case file and they were not sufficiently informed about the process. One participant mentioned that the transfer of investigations to a location other than the one where the enforced disappearance took place impeded participation in the proceedings by relatives and lawyers of the victims.

37. In many states, there are no adequate legal provisions on the reparation for victims of enforced disappearance. In Serbia, for example, according to the Law on Civilian Victims of War, those who suffered harm from Serbian forces cannot obtain reparation.10 It appears that in several Council of Europe member states, there is a differential treatment between military victims and civilian victims of war.

Proposals identified during the discussion

38. Concerned states should do their utmost to clarify the circumstances of cases of missing persons and enforced disappearance. They must be committed to combating impunity for perpetrators of those crimes by conducting effective investigations into the cases, identifying those responsible, and prosecuting and sanctioning them. The continuous nature of the crime of enforced disappearance must be duly taken into account, and no statutory limitation shall apply to crimes against humanity, irrespective of the date of their commission. The states concerned must ensure that families of missing persons and victims of enforced disappearance are involved in investigations into cases concerning their loved ones and are regularly informed about the progress made in those cases.

39. Respondent states should fully and promptly execute the Strasbourg Court’s judgments, notably those concerning cases of missing persons and enforced disappearance. National Human Rights Institutions could be more active in this regard.

40. Law enforcement officials, judges and lawyers should be trained on the importance of combating impunity, as well as standards, legal obligations and good practices related to cases of enforced disappearance.

41. The application of the universal jurisdiction principle to international crimes could be considered in relation to cases of enforced disappearance, as it may contribute to identifying and punishing perpetrators.

42. The states concerned must provide the families of missing persons and victims of enforced disappearance with the necessary legal, psychological and social assistance, and must guarantee that victims of enforced disappearance receive prompt, fair and adequate reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition. Moreover, states must adopt adequate measures to ensure protection from ill-treatment, reprisals and intimidation for all witnesses and relatives of missing persons and victims of enforced disappearance, their defence counsels, as well as all persons participating in the investigation of complaints.

III. The situation of human rights defenders working on issues related to missing persons, enforced disappearances and transitional justice

The vital work of human rights defenders in protecting rights and obtaining redres

43. Civil society actors, including human rights organisations and defenders, are crucial to human rights, democracy and the rule of law. If they are not able to operate, then these values and standards are under threat. These actors perform essential tasks in: making the human rights system function by bringing complaints before domestic and international mechanisms; helping victims of human rights violations to access remedies and obtain other forms of support and reparation; advocating for changes in policy and legislative frameworks and their implementation; and raising public awareness on human rights. In some cases, NGOs and individual human rights defenders are the only recourse for victims and vulnerable persons.

44. Associations of relatives of missing persons or victims of enforced disappearance as well as human rights NGOs play a vital role in establishing the facts and pursuing justice, including by advocating for the adoption of adequate legislation, contributing to the search and identification of remains, providing legal and psychological aid to victims and engaging in peace-building processes. In Bosnia and Herzegovina for example, NGOs contributed to the drafting and adoption of the Law on Missing Persons. NGOs of the countries of the former Yugoslavia launched the RECOM initiative, which still awaits state support (see Section 1). In Serbia, the national strategy for war crimes prosecution took into account the input provided by NGOs working in this field. In Cyprus, civil society actors from different communities participate in uncovering the location of bodies and mass graves. In Ukraine, on both sides of the contact line, relatives of missing persons, non-governmental human rights organisations and volunteer groups deploy significant efforts to search for missing and forcibly disappeared persons.

45. In situations of armed conflict or acute crisis, human rights defenders play an essential role in documenting human rights violations and helping victims.

Obstacles to the work of human rights defenders

46. The situation and work of human rights defenders are negatively affected by various trends in Europe. Obstacles may take the form of: legal and administrative restrictions impending the registration of human rights organisations and their access to funding; burdensome financial and reporting requirements; judicial harassment; smear campaigns, threats and intimidation; abusive control and surveillance; confiscation and destruction of working materials; unlawful arrest or detention; ill-treatment; enforced disappearance and death. The absence of effective investigations into violations committed by state and non-state actors against human rights defenders targeted because of their human rights work remains a major problem.

47. Human rights defenders and organisations working on missing persons, enforced disappearances and transitional justice issues, including in conflict and post-conflict contexts, face intimidation, threats, attacks, reprisals and even enforced disappearance, as they challenge the mainstream national narrative in their community or country. For example, the Russian NGO Committee Against Torture and the Joint Mobile Group which are active in combating impunity and in following cases of missing persons and enforced disappearance in the North Caucasus in the Russian Federation, in particular in Chechnya, were subjected to numerous physical attacks in recent years. The Committee Against Torture and the Joint Mobile Group started to operate in the region under strained conditions, notably following the murder of human rights defender Natalia Estemirova in 2009. These actors are furthermore under pressure due to the implementation of the so-called Foreign Agents Law which affected many human rights NGOs and defenders – some of them closed down, others are the object of inspections, sanctions and smear campaigns. More generally, in several European countries, human rights organisations and defenders receiving foreign funding are increasingly targeted.

48. Human rights defenders face major difficulties in accessing areas affected by on-going violence, such as South Eastern Turkey, or by an armed conflict as is currently the case in the East of Ukraine. Some participants referred to the obstacles that human rights defenders encounter while working on cases of enforced disappearance in Crimea. Turkish human rights defenders cannot work anymore in the field on cases of enforced disappearance that occurred in the 1990’s, for example in order to locate mass graves, as the concerned area is currently the theatre of serious tension. In situations of violence or conflict, the national narrative becomes more aggressive in society. This puts human rights defenders, notably those critical of the government or advocating for peace, in a vulnerable position. Participants reported that human rights NGOs and defenders are more and more targeted by/through government-supported NGOs (GONGOs) and pro-government media.

49. In several instances, participants referred to difficulties that they face in participating in consultation and decision-making processes. It appears that their input and recommendations are often not considered when authorities are elaborating policies, laws and institutions concerning missing persons and enforced disappearances. For example, it was pointed out that the cooperation between the Serbian authorities and relevant NGOs was not effective in the field of improving victims’ rights, notably concerning the drafting of the Law on Rights of Veterans, Disabled Veterans, Civilian Disabled War Victims and their Family Members.

Proposals identified during the discussion

50. Member states must meet their obligations to protect human rights defenders and ensure an enabling environment for their work, free from intimidation and pressure. These obligations are recalled in the 1998 UN Declaration on human rights defenders and the 2008 Declaration of the Council of Europe Committee of Ministers to improve the protection of human rights defenders and promote their activities. Further, Article 24, paragraph 7, of the Convention establishes that states shall “guarantee the right to form and participate freely in organisations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance”.

51. Human rights defenders and NGOs should be able to participate meaningfully in consultation and decision-making processes on the basis of their field experience and expertise, in order for them to fulfil their role of watchdogs in democratic societies. Effective procedures and practices should be established in this respect.

52. International, regional and national networks of human rights defenders should co-operate in assisting those defenders who face difficulties in their work and threats to their personal security. There should be more intense co-operation and joint action between national human rights structures (NHRSs) and human rights defenders to advance human rights agendas and to assist those who are at risk.

53. The international community needs to engage more in building the capacity and expertise of human rights NGOs active in this area. At the same time, human rights defenders should continue interacting and exchanging experiences in this respect and help each other to work on cases of missing persons and enforced disappearance.

( Published 22. 02. 2017. )