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1. The author of the
communication is Barbar�n Mojica, a citizen of the Dominican Republic and
labour leader residing in Santo Domingo, Dominican Republic. He submits the
communication on behalf of his son Rafael Mojica, a Dominican citizen born
in 1959, who disappeared in May 1990. The author claims violations by the
State party of articles 6, 7, 9, paragraph 1, and 10, paragraph 1, of the
Covenant in respect of his son.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author is a well-known labour leader. His son, Rafael Mojica, a dock
worker in the port of Santo Domingo, was last seen by his family in the
evening of 5 May 1990. Between 8 p.m. and 1 a.m., he was seen by others at
the restaurant "El Aplauso" in the neighbourhood of the Arrimo Portuario
union, with which he was associated. Witnesses affirm that he then boarded a
taxi in which other, unidentified, men were travelling.
2.2 The author contends that during the weeks prior to his son's
disappearance, Rafael Mojica had received death threats from some military
officers of the Direcci�n de Bienes Nacionales, in particular from Captain
Manuel de Jesus Morel and two of the latter's assistants, known under their
sobriquets of "Martin" and "Brinquito". They allegedly threatened him
because of his presumed communist inclinations.
2.3 On 31 May 1990, the author and his family and friends requested the
opening of an investigation into the disappearance of Rafael Mojica. The
Dominican representative of the American Association of Jurists wrote a
letter to this effect to President Balaguer; apparently, the author did not
receive a reply. One month after Rafael Mojica's disappearance, two
decapitated and mutilated bodies were found in another part of the capital,
close to the industrial zone of Haina and the beach of Haina. Fearing that
one of the bodies might be that of his son, the author requested an autopsy,
which was performed on 22 June 1990. While the autopsy could not establish
the identity of the victims, it was certain that Rafael Mojica was not one
of them, as his skin, unlike that of the victims, was dark ("no se trata del
Sr. Rafael Mojica Melenciano, ya que �ste seg�n sus familiares es de tez
oscura"). On 6 July 1990, the Office of the Procurator General released a
copy of the autopsy report to the author.
2.4 On 16 July 1990, the author, through a lawyer, requested the Principal
Public Prosecutor in Santo Domingo to investigate the presumed involvement
of Captain Morel and his assistants in the disappearance of his son. The
author does not specify whether the request received any follow-up between
23 July 1990, the date of the communication to the Human Rights Committee,
and the beginning of 1994.
2.5 The author contends that under the law of the Dominican Republic, no
specific remedies are available in cases of enforced or involuntary
disappearances of persons.
THE COMPLAINT
3. It is submitted that the above facts reveal violations by the State party
of articles 6, 7, 9, paragraph 1, and 10, paragraph 1, of the Covenant.
THE COMMITTEE'S DECISION ON ADMISSIBILITY
4.1 During its forty-seventh session, the Committee considered the
admissibility of the communication. It noted with concern the absence of
cooperation on the part of the State party and observed that the author's
contention that there were no effective domestic remedies to exhaust for
cases of disappearances of individuals had remained uncontested. In the
circumstances, the Committee was satisfied that the requirements of article
5, paragraph 2 (b), of the Optional Protocol had been met.
4.2 As to the author's claim under article 10, paragraph 1, of the Covenant,
the Committee considered that it had not been substantiated and that it
related to what might hypothetically have happened to Rafael Mojica after
his disappearance on 5 May 1990; the Committee thus concluded that in this
respect, the author had no claim under article 2 of the Optional Protocol.
4.3 Concerning the author's claims under articles 6, 7 and 9, paragraph 1,
the Committee considered them to be substantiated, for purposes of
admissibility. On 18 March 1993, therefore, the Committee declared the
communication admissible in so far as it appeared to raise issues under
articles 6, 7 and 9 of the Covenant. The State party was requested, in
particular, to provide information about the results of the investigation
into Mr. Mojica's disappearance and to forward copies of all relevant
documentation in the case.
EXAMINATION OF THE MERITS
5.1 The State party's deadline under article 4, paragraph 2, of the Optional
Protocol expired on 10 November 1993. No submission on the merits has been
received from the State party, in spite of a reminder addressed to it on 2
May 1994.
5.2 The Committee has noted with regret and concern the absence of
cooperation on the part of the State party in respect of both the
admissibility and the merits of the communication. It is implicit in article
4, paragraph 2, of the Optional Protocol and in rule 91 of the rules of
procedure that a State party should investigate thoroughly, in good faith
and within the imparted deadlines, all the allegations of violations of the
Covenant made against it and make available to the Committee all the
information at its disposal. This the State party has failed to do.
Accordingly, due weight must be given to the author's allegations, to the
extent that they have been substantiated.
5.3 The author has alleged a violation of article 9, paragraph 1, of the
Covenant. Although there is no evidence that Rafael Mojica was actually
arrested or detained on or after 5 May 1990, the Committee recalls that
under the terms of the decision on admissibility, the State party was
requested to clarify these issues; it has not done so. The Committee further
notes the allegation that Rafael Mojica had received death threats from some
military officers of the Direcci�n de Bienes Nacionales in the weeks prior
to his disappearance; this information, again, has not been refuted by the
State party.
5.4 The first sentence of article 9, paragraph 1, guarantees to everyone the
right to liberty and security of person. In its prior jurisprudence, the
Committee has held that this right may be invoked not only in the context of
arrest and detention, and that an interpretation which would allow States
parties to tolerate, condone or ignore threats made by persons in authority
to the personal liberty and security of non-detained individuals within the
State party's jurisdiction would render ineffective the guarantees of the
Covenant. a/ In the circumstances of the case, the Committee concludes that
the State party has failed to ensure Rafael Mojica's right to liberty and
security of the person, in violation of article 9, paragraph 1, of the
Covenant. [FN1]
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[FN1] See Official Records of the General Assembly, Forty-sixth Session,
Supplement No. 40 (A/46/40), annex IX.D, communication No. 195/1985 (Delgado
P�ez v. Colombia), views adopted on 12 July 1990, paras. 5.5 and 5.6; ibid.,
Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.I,
communication No. 314/1988 (Bwalya v. Zambia), views adopted on 14 July
1993, para. 6.4; and annex IX.BB below, communication No. 468/1991 (Ol�
Bahamonde v. Equatorial Guinea), views adopted on 20 October 1993, para.
9.2.
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5.5 In respect of the alleged violation of article 6, paragraph 1, the
Committee recalls its general comment 6 (16) on article 6, in which it is
stated, inter alia, that States parties should take specific and effective
measures to prevent the disappearance of individuals and establish effective
facilities and procedures to investigate thoroughly, by an appropriate
impartial body, cases of missing and disappeared persons in circumstances
that may involve a violation of the right to life.
5.6 The Committee observes that the State party has not denied that Rafael
Mojica (a) has in fact disappeared and remains unaccounted for since the
evening of 5 May 1990, and (b) that his disappearance was caused by
individuals belonging to the Government's security forces. In the
circumstances, the Committee finds that the right to life enshrined in
article 6 has not been effectively protected by the Dominican Republic,
especially considering that this is a case where the victim's life had
previously been threatened by military officers.
5.7 The circumstances surrounding Rafael Mojica's disappearance, including
the threats made against him, give rise to a strong inference that he was
tortured or subjected to cruel and inhuman treatment. Nothing has been
submitted to the Committee by the State party to dispel or counter this
inference. Aware of the nature of enforced or involuntary disappearances in
many countries, the Committee feels confident in concluding that the
disappearance of persons is inseparably linked to treatment that amounts to
a violation of article 7.
6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts as found by the Committee reveal a
violation by the State party of articles 6, paragraph 1; 7; and 9, paragraph
1, of the Covenant.
7. Under article 2, paragraph 3, of the Covenant, the State party is under
an obligation to provide the author with an effective remedy. The Committee
urges the State party to investigate thoroughly the disappearance of Rafael
Mojica, to bring to justice those responsible for his disappearance and to
pay appropriate compensation to his family.
8. The Committee would wish to receive from the State party, within 90 days,
information about the measures taken in response to its views. |
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