How long does the past endure? ‘Continuing violations’ and the ‘very distant past’ before the UN Human Rights Committee

Abstract

The concept of ‘continuing violation’ allows reviewing applications concerning effects of violations that started before a treaty came into a force with regard to a state that allegedly committed the violation. This article analyses how the UN Human Rights Committee has recently approached two communications concerning continuing violations that occurred in the 1930s and 1940s (K.K. and Others v Russia; F.A.J. and B.M.R.A. v Spain). It critiques the fact that the Committee has introduced an additional qualification to its case law on continuing violations, namely that it has no jurisdiction over the violations with continuing effect, when underlying violations happened in the ‘very distant past’. The article argues that communications raising violations of the families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of time constraint since the disappearances. Lastly, the article reveals a tacit influence of the European Court of Human Rights on the Committee in the analysed case law.

1. INTRODUCTION

Human rights treaties bind Parties after they ratify an instrument and it enters into force, so in principle only their conduct after that date is constrained by the treaty. If the human rights treaty has a complaint mechanism, the date of the mechanism's entry into force for a particular country creates the ‘critical date’: in principle, the mechanism would only examine complaints concerning State actions after that date. However, the concept of continuing violations has emerged across human rights regimes to deal with those violations whose effects persist after the critical date. ¹

Since the 1980s, the UN Human Rights Committee (HRC or Committee) has accepted communications concerning violations that occurred before the entry into force of its complaint mechanism, provided that the violations continued to have effects after that date. ² So far, it has applied the continuing violations concept in at least 54 cases. ³ Out of them, 17 concern enforced disappearances, ⁴ which have been categorised as ‘prototypical continuous violations’, as two of their features typically persist over time: their unexplained nature, and the ongoing suffering of family members. ⁵

In the vast majority of communications on continuing violations brought to the HRC, the initial violation commenced months or years before the critical date. Recently, the HRC ruled that two communications in which the initial violation had started over eighty years before the complaint was filed were inadmissible: enforced disappearances in 1936 in Spain (F.A.J. and B.M.R.A. v Spain), ⁶ and the secret executions of prisoners of war during the Katyń Massacre in 1940 (K.K. and Others v Russia). ⁷ This article will assess the HRC's two decisions and make three arguments. First, this article will critique the HRC's new temporal limitation that rejects as inadmissible complaints concerning continuing violations in the ‘very distant past’. It will be argued that this criterion undermines legal certainty and contradicts the logic of the ‘continuing violations’ concept. Second, it will be posited that the communications raising violations regarding families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of time constraint since the disappearances. To acknowledge their continuing suffering, the HRC should assess present actions of the accused State towards the families. Third, an analysis of the decisions will reveal a ‘tacit influence’ ⁸ of the European Court of Human Rights (ECtHR) on the HRC. While the HRC has cited the ECtHR judgment Janowiec and Others v Russia ⁹ on one occasion in its reasoning in K.K. and Others v Russia, ¹⁰ the influence demonstrably goes much further. As the ECtHR has adopted a more restrictive approach towards the rights of families of disappeared persons, ¹¹ its tacit influence on the HRC has led to the limitation of the families’ rights. Such an influence of a regional human rights court is particularly striking, as we might expect better from the HRC, which derives its legitimacy from the notion of the universality of international human rights. ¹²

The two analysed communications bear three similarities. First, both alleged violations commenced before the adoption of the International Covenant on Civil and Political Rights (ICCPR) ¹³ and at the moment of bringing it to the HRC, the applicants would have been aware that their family members had been eventually executed. Second, in both cases, the authorities neither conducted effective investigations into the persons’ fates nor informed the families about the fate of their loved ones. Third, applications arising from an analogous factual situation ¹⁴ – enforced disappearances in the Spanish Civil War and the Katyń Massacre – were decided almost a decade earlier by the ECtHR. ¹⁵ The submissions to the HRC and ECtHR concerned the lack of investigations into the enforced disappearances as well as the effects State authorities’ actions and inactions had on the remaining family members.

The article will begin with an analysis of how the HRC approaches the concept of ‘continuing violation’ (section 2), with special attention to enforced disappearances as continuing violations, as both analysed cases commenced as such. ¹⁶ The subsequent section presents the facts of the two HRC Decisions, first K.K. and Others v Russia (Section 3.1) and then F.A.J. and B.M.R.A. v Spain (Section 3.2). The next three sections analyse various aspects of the decisions, starting with who is considered disappeared and how long they are considered disappeared for (Section 4). It will be shown that whereas the HRC's finding that the men in K.K. and Others v Russia were dead and not disappeared was a key factor in concluding that there was no violation with regard to their relatives, this aspect was entirely omitted in F.A.J. and B.M.R.A. v Spain. Next, it will be demonstrated how the HRC approached the treatment of families of the disappeared in these two decisions (Section 5). At this point, the article will explain the ECtHR approach and show its tacit influence on the HRC. Section 6 will scrutinise how the HRC set time limits to the concept of ‘continuing violation’, juxtaposing it with the cut-off dates used by the ECtHR. The article will conclude with an assessment of the future communications concerning continuing violations that arose from events that happened in the ‘very distant past’ (Section 7). The HRC members in the concurring opinion to F.A.J. and B.M.R.A. v Spain pointed to the HRC's State reporting procedure as a venue to address the situation. Therefore, this article will conclude by expressing concern regarding the relevance and meaning of such a solution.

2. THE HRC AND ENFORCED DISAPPEARANCES AS CONTINUING VIOLATIONS

2.1. Continuing Violations and Their Affirmation

The HRC has been accused of excessive caution regarding its temporal jurisdiction. ¹⁷ Currently, it only accepts individual complaints concerning events that occurred after the entry into force of the Optional Protocol to the ICCPR on the individual complaints procedure with regard to a particular country. ¹⁸ Manfred Nowak and Marc Bossuyt argue that the critical moment should not be the entry into force of the Optional Protocol, but the entry into force of the ICCPR, as this is the point in time when the State commits to respect and ensure the rights recognised therein. ¹⁹

At the same time, the HRC follows other international courts with a crucial exception from such an application of the ratione temporis rule by applying the concept of continuing violations. ²⁰ However, while accepting the concept, the HRC has elaborated neither on its meaning nor scope. Scholars have critiqued the HRC's approach to continuing violations, in particular for introducing the ‘affirmation’ element ²¹ and the refusal to countenance non-retroactivity. ²² The HRC introduced the affirmation element in a critical decision from 1994, when it stated that a continuing violation is ‘an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party’. ²³ The UN Committee Against Torture has also more recently started to apply the construct of affirming a continuing violation, ²⁴ but it has not been used outside of the UN treaty body system. ²⁵

Whether the State has ‘affirmed’ the violation needs to be assessed on a case-by-case basis, and it remains unclear how the HRC applies the affirmation principle. ²⁶ As will be shown below, those questions only gain in importance due to the specific characteristics of enforced disappearances.

2.2. Applying the Standards to Enforced Disappearances

The Inter-American Court of Human Rights (IACtHR) applied the concept of continuing violations to deal with enforced disappearances in 1998, ²⁷ followed by the ECtHR in 2001 ²⁸ and the HRC in 2003. ²⁹ The continued nature of enforced disappearances was reaffirmed in the 2010 International Convention for the Protection of all Persons from Enforced Disappearance. ³⁰ One of the first decisions by the UN Committee on Enforced Disappearances, created by this Convention, was to announce that it would consider enforced disappearances that had occurred before the critical date in reviewing State reports. ³¹ The UN Working Group on Enforced and Involuntary Disappearances adopted a particularly broad approach on continuing violations, by stating that States should be held responsible for all violations resulting from an enforced disappearance, not only those that occurred after the critical date. ³²

The doctrine of continuing violations requires States to investigate the fate of forcibly disappeared persons before a particular treaty came into force. ³³ Importantly for the analysed decisions, the presumption of death ³⁴ does not end such a continuing violation, as authorities are still required to establish the circumstances of the disappearance, then search for and return the remains of the forcibly disappeared person. ³⁵ Debate continues regarding when exactly the crime of enforced disappearance comes to an end. For example, Marthe Lot Vermeulen argues that this occurs when the disappeared person's body is revealed and the relatives are informed. ³⁶ In contrast, Jeremy Sarkin argues that the violation continues until the whole truth about what happened comes to light. ³⁷

The HRC issued its first views on enforced disappearances in the case Bleier v Uruguay in 1982. It concerned disappearances that had occurred only half a year before the complaint mechanisms entered into force for Uruguay. The HRC declared the communication ‘admissible in so far as it related to events which have allegedly continued or taken place’ after the entry into force of the Optional Protocol. However, this was a relatively straightforward case, as the HRC found that there was sufficient evidence to indicate that the person continued to be detained after the critical date. ³⁸ In subsequent views on enforced disappearances that had happened significantly earlier (for example, seven years before the critical date), the HRC did not rely on the continuing deprivation of liberty but rather on the fact that the State authorities did not deny the detention. ³⁹

In enforced disappearances cases, the HRC usually does not explicitly mention the necessity of showing measures a State takes after the critical date, which would constitute an affirmation of the enforced disappearance. ⁴⁰ It remains an exception that the HRC held that authors of communications should indicate the measures taken by the State after the critical date that would have constituted a continuation of the enforced disappearance. ⁴¹ In fact, it is difficult to show how, in an enforced disappearances case, the violation can be ‘affirmed’ by the State, as denying the deprivation of liberty and fate of the persons lies at the heart of enforced disappearances. Therefore, would continuing the denial of a disappearance constitute an ‘affirmation’? Or, alternatively, would acknowledging that the persons were forcibly disappeared, with no efforts by the State to establish their fate, constitute an ‘affirmation’?

Enforced disappearances generally entail continuing violations when one considers the rights of the disappeared persons’ family members. As is well-established, persons close to a forcibly disappeared person are also considered victims of human rights violations. ⁴² This holds true also for disappearances that occurred before the critical date. In the 2005 Yurich v Chile decision, the HRC ruled that the claims concerning the disappearance themselves were inadmissible ratione temporis, but did not rule out the possibility of a violation of the ICCPR with respect to their family members. ⁴³ This was expanded during the following decade to communications regarding persons who disappeared during the war in Bosnia and Herzegovina before the State had accepted the individual procedure. In a number of views, the HRC found violations of several rights guaranteed in the ICCPR, both with regard to the disappeared persons and their families. ⁴⁴

Consequently, in certain circumstances, the HRC finds admissible communications arising from enforced disappearances that occurred before a country accepted the Optional Protocol. The HRC can rule a communication inadmissible ratione temporis with regard to the disappearance and find a violation with regard to their families. It is not entirely clear whether and how the HRC applies the ‘affirmation’ of continuing violation to such communications. Furthermore, all the earlier views and decisions concerned enforced disappearances that occurred a couple of months or years before the critical date.

3. THE FACTS

3.1. K.K. And Others v Russia: The Katyń Massacre

Ruled inadmissible by the HRC in November 2019, K.K. and Others v Russia was brought by descendants (children and one grandchild) of persons killed during the Katyń Massacre. The term refers to the secret execution by Soviet forces of circa 21,000 Polish prisoners of war in the spring of 1940. The families did not know of this fact, ⁴⁵ and learned about the executions in 1943, when Nazi German forces discovered one of the mass graves in which some of the bodies were buried. The Soviet authorities denied responsibility and claimed the mass graves were the result of a Nazi crime until 1990, when the State officially acknowledged and condemned the killings and the subsequent cover-up. At this time, the Soviet government also initiated investigative proceedings into the killings, which were suspended in September 2004, decision officially announced at a press conference in March 2005. ⁴⁶

Following this decision, a number of family members started proceedings in Russia aimed at rehabilitating their relatives and challenging the decision to discontinue the investigation. After exhausting domestic remedies, some families filed applications to the ECtHR. In 2012, the Chamber found that the treatment of the applicants born before the men were killed amounted to inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR), but stated that it lacked temporal competence to investigate the claim regarding the effective investigation into the massacre under Article 2 ECHR (right to life). ⁴⁷ The case was subsequently referred to the ECtHR Grand Chamber, which, in 2013, took the same stance as the Chamber towards the obligation to investigate; the Grand Chamber took a different approach towards the treatment of the families by State authorities, finding that there was no Article 3 ECHR violation. ⁴⁸

The authors of K.K. and Others v Russia – represented by the same counsel as in Janowiec and Others v Russia ⁴⁹ – claimed the same set of violations in their complaint to the HRC, namely that the investigations into the disappearances of their relatives were ineffective (Article 2(3) in connection with Article 6 of the ICCPR) and that the treatment of the families amounted to inhuman treatment (Article 7 of the ICCPR). ⁵⁰ The HRC found that by 1992 – when the Optional Protocol entered into force for the Russian Federation – the State authorities were not under an obligation to investigate the killings of 1940. ⁵¹ Next, after reiterating that Russian authorities changed the status of the relatives from ‘dead’ to ‘disappeared’, the HRC concluded that it could not consider them to be ‘disappeared’, as by the time of the proceedings, their death was beyond doubt and the killings were an established historical fact. ⁵² The HRC concluded that uncertainty about the fate of the relatives was unlikely and that ‘information on the file’ did not reveal that the treatment of the authors was aimed at causing them pain and suffering. Despite not disclosing what that information might be, the HRC found that they had not been treated in a manifestly disrespectful or degrading manner. Therefore, the HRC deemed the claim under Article 7 ICCPR inadmissible for a lack of substantiation. ⁵³

Just as in F.A.J. and B.M.R.A. v Spain (see below), the dissenting opinion to the decision concerned the violation of Article 7 ICCPR with regard to the authors. As the dissenting HRC members reasoned, the majority decision on the inadmissibility of the claim under Article 7 ICCPR was based on two reasons. First, there was no uncertainty about the death of the men due to the lapse of time. Second, there was a lack of intent from the Russian authorities to cause the authors pain and suffering. The dissenting HRC members disagreed with that finding, stating that the uncertainty and pain of the families did not end with the certainty of death, as acknowledged in the HRC's earlier views. Moreover, the dissenting HRC members listed a number of actions by Russian authorities that exacerbated the suffering of the authors. ⁵⁴

What follows from K.K. and Others v Russia is that two elements had to be met in order for it to conclude that the authors were victims of inhuman or degrading treatment. First, there had to be uncertainty as to the disappeared persons’ death, which would have led to their categorisation as ‘disappeared’. Second, their treatment by State authorities had to be ‘manifestly disrespectful’. These would have been new requirements in the HRC's approach, as the HRC had found violations of the ICCPR with regard to families of disappeared persons even when there was no uncertainty as to the death of those persons. Moreover, in contrast to the ECtHR, ⁵⁵ the HRC does not analyse how State authorities treat family members of disappeared persons, so this point should be irrelevant. In fact, when reviewing a similar communication from Spain several months later, the HRC did not comment on either one of these two factors.

3.2. F.A.J. and B.M.R.A. v Spain: Enforced Disappearances During the Spanish Civil War

The applicants in F.A.J. and B.M.R.A. v Spain were a daughter and granddaughter of a couple that were forcibly disappeared after their arrest in Mallorca in 1936. ⁵⁶ The enforced disappearance was never investigated, and, since 2006, the authors of the communication have pursued numerous legal actions in Spain and Argentina, including in order to conduct exhumations and receive the remains, which remained unsuccessful. ⁵⁷ The enforced disappearance of the couple occurred as part of a widespread practice at the time. While there is no complete list of forcibly disappeared persons during the Spanish Civil War, the number of persons disappeared between 1936 and 1951 is estimated at 114,266. ⁵⁸

The authors of F.A.J. and B.M.R.A. v Spain argued that the actions of the Spanish authorities after the ratification of the Optional Protocol constituted a continuing violation of Articles 6, 7, 9, and 19 read in conjunction with Article 2(3) of the ICCPR with regard to the disappeared couple, but also inhuman treatment with regard to the authors (Article 7, read in conjunction with Article 2(3), of the ICCPR). ⁵⁹ Spain argued that the communication should be inadmissible, and simultaneously informed the HRC of several steps taken to address enforced disappearances resulting from the period of Civil War and Francoist Repression. ⁶⁰

The HRC ruled the communication inadmissible for two reasons concerning the ratione temporis consideration, ⁶¹ in which the HRC relied on and repeatedly cited K.K. v Russia. ⁶² The first ground for inadmissibility concerned the passage of time since the events: almost 85 years. The HRC stated that while enforced disappearances can have a continuing effect, the facts occurred 41 years before the entry into force of the ICCPR for Spain and 49 years before the entry into force of the Optional Protocol. Furthermore, the HRC reasoned that since the enforced disappearance commenced before the ‘consolidation of modern international human rights law’, the ratification of the ICCPR by Spain cannot be understood as implying an obligation to investigate enforced disappearances in the ‘very distant past’. ⁶³ Thus, the passage of time was crucial for the decision, and not the fact that the enforced disappearances occurred prior to the entry into force of the ICCPR and the Optional Protocol.

The second reason for which the communication was ruled inadmissible was because the authors had inadequately explained the delay in their submission. According to the HRC, the communication should have been submitted in 1985, when the Optional Protocol came into force for Spain, or in 2010, when the authors’ appeal was ruled inadmissible by the Constitutional Tribunal, and not in January 2019. This reasoning follows the ECtHR in the analogous inadmissibility decision. ⁶⁴

In the three opinions attached to the views, the HRC members unambiguously supported the decision with regard to the inadmissibility of the procedural obligations to investigate the violations concerning the disappeared couple. However, two of the joint opinions disagreed with the findings regarding the inadmissibility of the claims of the authors, concerning their inhuman treatment. ⁶⁵

4. WHO IS CONSIDERED ‘DISAPPEARED’ – AND FOR HOW LONG?

In K.K. and Others v Russia, the HRC found the claim of the continuing violation with regard to the families inadmissible, arguing that the men killed in the Katyń Massacre could not be considered ‘disappeared’. ⁶⁶ By the time the communication was submitted to the HRC, there was clearly no doubt about the death of the disappeared persons. At the same time, finding that a forcibly disappeared person died – without a full inquiry and explanation of the circumstances of the death – does not end the crime, as it is a continuing violation. However, such a reasoning in K.K. and Others v Russia would suggest that after the passage of a certain amount of time, finding out that the disappeared person is dead does end the enforced disappearance. As the factual situation does not substantially differ with regard to this point – the disappeared family members in both cases were clearly dead – the HRC appears to be backing out of this reasoning, by not recalling this point in F.A.J. and B.M.R.A. v Spain.

The deliberation on whether the persons should be considered dead, disappeared, or both did not appear in a void. First, in 2004 the Russian authorities discontinued the domestic investigation, stating there was no evidence that the authors’ relatives had been executed. ⁶⁷ From the reasoning, it follows that they cannot by regarded ‘dead’ but ‘disappeared’, since their fate and whereabouts remain unclear. Second, both in the HRC and ECtHR proceedings, the authors themselves argued that their relatives – presumed ‘dead’ – must be treated as ‘disappeared’ following this 2004 domestic decision. ⁶⁸ Third, and perhaps most surprisingly, the ECtHR Grand Chamber in Janowiec and Others v Russia decided that what could initially have been a case of enforced disappearance must be considered a ‘confirmed death’ case. ⁶⁹ The lack of explanation on why such a change of qualification had occurred – coupled with the fact that this has been applied by the ECtHR in only one other judgment ⁷⁰ – renders a clarification of the ECtHR's approach difficult. Similarly, the HRC Decision does not include an explanation about its approach to the categorisation.

The ECtHR in Janowiec and Others v Russia and the HRC in K.K. and Others v Russia decided that the forcibly disappeared persons must be considered dead. While neither one clearly indicated how it came to such a decision, the passage of time appears to be the main reason. In fact, by the time the communications were brought to the ECtHR and HRC, the families were not uncertain whether their loved ones were alive. However, uncertainty as to the death of the disappeared person is not a prerequisite for finding a violation of the ICCPR or the ECHR. Certainty of death does not mean that the continued crime of enforced disappearance comes to an end. For example, the HRC requires States to clarify the fate of the disappeared and the circumstances in which the enforced disappearance occurred, ⁷¹ establish the circumstances of their death, and place the information on their death certificate. ⁷² Similarly, the ECtHR requires States to undertake several steps after a disappeared person's body has been discovered, even when the presumed death happened prior to the State's ratification of the ECtHR. ⁷³ As the HRC did not repeat this reasoning in F.A.J. and B.M.R.A. v Spain – in which the factual situation regarding the death of the disappeared persons is quite similar – the rationale in K.K. and Others v Russia appears to be an exception. However, the matter was a key part of the rationale in the latter decision, showing the influence of the ECtHR judgment in Janowiec and Others v Russia.

5. TREATMENT OF FAMILIES OF DISAPPEARED PERSONS

The HRC has been consistent in stating that relatives of disappeared persons can be victims of an Article 7 ICCPR violation also when the enforced disappearance occurred before the State accepted the individual complaint procedure. ⁷⁴ Both in F.A.J. and B.M.R.A. v Spain and K.K. and Others v Russia, the authors argued that they had endured inhuman or degrading treatment as family members of disappeared persons. This was also the most contentious part of the two decisions: all the three dissenting opinions (one to K.K. and Others v Russia and two to F.A.J. and B.M.R.A. v Spain) concern this aspect of the decision. The one concurring opinion to F.A.J. and B.M.R.A. v Spain explicitly refers to the possibility of claims arising with regard to individual rights of living family members of disappeared persons. ⁷⁵ Before commenting on the HRC reasoning in the two decisions, this article will criticise the relevant aspect in the ECtHR Janowiec and Others v Russia Chamber judgment to show its influence on the HRC Decisions.

The ECtHR approach to the matter differs from that of the HRC. Whether family members of forcibly disappeared persons are victims of inhuman or degrading treatment depends on the presence of special factors that distinguish suffering from emotional distress experienced by all relatives of a victim to a serious human rights violation. The special factors established by the ECtHR include involvement in attempts to obtain information about the disappeared persons and the way authorities responded to those inquires. ⁷⁶ Based on those special factors, the ECtHR adopted an approach whereby it does not find that children born after the disappearance of their father are to be considered victims of inhuman or degrading treatment. ⁷⁷ In the rare occasions when the ECtHR commented on the reasons, it stated that this was caused by the fact that small children do not participate in the search for information about their disappeared fathers. ⁷⁸ This approach was subsequently applied in the Chamber judgment of Janowiec and Others v Russia to exclude claims of applicants born after the enforced disappearance of the prisoners of war by Soviet authorities. ⁷⁹ As reasoned above, since the application concerned only acts undertaken after the ECHR had entered into force for Russia, this factor should not have been taken into consideration, as by this time all of the applicants were adults and could participate in the search for information. ⁸⁰

The HRC does not adopt such special factors, although K.K. and Others v Russia shows the impact the ECtHR Chamber judgment in Janowiec and Others v Russia had on the decisions. First, in contrast to the ECtHR proceedings, all authors of the communication to the HRC were born before the enforced disappearance occurred. ⁸¹ Second, the ECtHR's special factors and analysis from Janowiec and Others v Russia were explicitly invoked by Russia when arguing that the claims were unsubstantiated. ⁸² Third, while the HRC did not comment on the special factors, it did base its reasoning that the applicants were not victims of inhuman or degrading treatment on the fact that their loved ones cannot be considered ‘disappeared’ – just as the ECtHR Grand Chamber found in Janowiec and Others v Russia. ⁸³ While the HRC did not elaborate on its approach, the ECtHR highlighted in the Grand Chamber judgment that by 1998 there was no uncertainty as to the fate of the disappeared persons. ⁸⁴ The uncertainty factor is also present in the reasoning of the HRC in the decisions. In this way, the HRC appears to have been ‘learning from regional systems without too openly acknowledging it’ – a phenomenon that has been described by Antoine Buyse as ‘tacit learning’. ⁸⁵

Last but not least, in one of the first views concerning enforced disappearances, the HRC found that the mother of a disappeared person was treated in an inhuman manner because she was denied the truth about the fate of her daughter. ⁸⁶ As shown by James Sweeney, the HRC has developed the right to truth precisely to underpin findings on the inhuman treatment of the next of kin. ⁸⁷ This also includes the right to know the circumstances of the disappeared person's death. ⁸⁸ Thus, the information about their fate should be at the centre of the analysis, which was not the case in either F.A.J. and B.M.R.A. v Spain or K.K. and Others v Russia. In the two communications, the authors not only invoked that the States did not investigate the crimes, but they also claimed that not providing them information about their disappeared family members resulted from the active involvement of State authorities. In the Spanish communication, the authors specifically raised the ‘obstruction’ into the investigation and search, ⁸⁹ while in the communication against Russia the authors raised that the investigation ended in ‘secrecy and denial’. ⁹⁰ The HRC refrained from commenting on that aspect.

6. CUT-OFF DATE: WHAT IS THE ‘VERY DISTANT PAST’?

The case of F.A.J. and B.M.R.A. v Spain has added an additional qualification to the HRC case law on continuing violations, namely that it has no jurisdiction over violations with continuing effect when the underlying violations happened ‘in the very distant past’, ‘even before the consolidation of modern international human rights law’. ⁹¹ Such a reasoning begs the question of how long ago ‘a very distant past’ is, and when the HRC sees modern international human rights law as consolidated. Following from the two decisions, the HRC appears to consider that events that took place in the 1930s and the 1940s are in ‘very distant past’ – but what about the 1950s? Would the HRC consider admissible communications arising from enforced disappearances that occurred during the 1950s in the Soviet Union or in the 1960s in Cyprus? While the consolidation of international human rights law supports the ‘very distant past’ reasoning, we should ask: when did this consolidation occur? For example, is it with the emergence of modern international human rights in normative expression (the adoption of the Universal Declaration of Human Rights in 1948)? Or is it with the emergence of international human rights law (the two UN Covenants in 1966)? Besides different dates that refer to human rights treaties and core documents, one could mention other dates connected to the establishment of organisations or human rights courts. There is a plethora of dates that could be proposed. As the HRC's reasoning implies, establishing a date is of crucial relevance for potential authors of communications concerning human rights violations that were allegedly committed decades ago, because only the violations that did not happen in the ‘very distant past’ and occurred after the ‘consolidation of the modern international human rights law’ can give rise to a continuing obligation for the HRC to investigate. Thus, the approach of the HRC does not give legal certainty.

While the HRC's reasoning did not go much into detail, its approach mirrors the reasoning in Janowiec and Others v Russia, where the ECtHR held that the case was inadmissible. ⁹² According to the ECtHR case law, the procedural obligation to conduct an effective investigation can also arise with regard to deaths that occurred before the State in question was bound by the ECHR. Generally, such cases must meet principles of genuine connection between the death and the obligations. The ECtHR found that the temporal factor is the first and most important indicator of the ‘genuine’ character of the connection. ⁹³ This period should not exceed ten years. ⁹⁴ Moreover, the ECtHR introduced an exception – the Convention value clause – when it needed to ‘ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner’. ⁹⁵ In Janowiec and Others v Russia, the Grand Chamber declared that this clause could not be applied to violations that occurred before the adoption of the ECHR in 1950, ‘for it was only then that the Convention began its existence as an international human rights treaty’. ⁹⁶ Thus, the ECtHR set a clear cut-off date connected with the Court itself, although it is worth noting that this action was also criticised at the time, including a harsh dissenting opinion to the Grand Chamber judgment. ⁹⁷

Even though enforced disappearances are a continuing violation, international human rights bodies seek a cut-off date when confronted with submissions concerning continuing violations that commenced many decades ago. In the interests of legal certainty, when applying such a solution, the mechanisms concerned should clearly establish a date and justify why they found it reasonable to do so. Neither of those steps was taken by the HRC. This reduces certainty for States and authors of potential communications and contradicts the logic of the ‘continuing violations’ concept.

Furthermore, families of disappeared persons are recognised to be victims of human rights violations. ⁹⁸ The suffering of families stems from the lack of information about the disappeared persons’ fates, which leads to a sense of loss ‘resulting from not knowing whether a loved one is dead or alive, absent or present’. ⁹⁹ The disappeared person becomes ‘psychologically present, but physically absent’. ¹⁰⁰ The hope that the disappeared persons may return is often maintained for a very long time, and so disappearances profoundly affect families over decades and generations. ¹⁰¹ Therefore, disappearances committed in the ‘very distant past’ also influence families. The applications in the two analysed decisions were submitted by very close relatives of the disappearances – mostly their children – who undoubtedly continue to be affected by the crimes, including by current actions of the respondent States. Hence, the violations raised by the families regarding themselves did not occur in the ‘distant past’. The present-day suffering is caused by current actions of the respective State and the fact that the fate of their loved ones continues to be concealed.

Consequently, communications raising violations with regard to families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of the length of time that has elapsed since the disappearances. In such cases, the HRC should assess the actions of the State towards the families that occurred after the critical date. For example, in the domestic proceedings in Russia, the Court stated that a bullet hole in the skulls of the prisoners of war proved only the use of firearms but not that the persons were shot by State authorities. ¹⁰² This statement concerned persons that were under a de facto and de iure control of State authorities, who refused to investigate those deaths. Such circumstances can be said to cause family members unnecessary pain and can be considered inhuman and degrading treatment. This statement by the State was not made in the ‘very distant past’: it was a statement made during proceedings after the critical date. By ruling the entire communication inadmissible, the HRC did not recognise that the State's actions caused additional suffering to the families.

7. CONCLUSION AND FUTURE OUTLOOK

In the light of the above analysis of the two HRC decisions, communications concerning human rights violations that occurred in the ‘very distant past’ are highly unlikely to be found admissible by the HRC. However, it remains unclear what the HRC considers to be the ‘very distant past’. While it appears to be possible for the HRC to find a violation of the prohibition of inhuman and degrading treatment with regard to family members of forcibly disappeared persons in such circumstances – as also highlighted by concurring Committee members – ¹⁰³ the two decisions show that the admissibility of a communication in such circumstances is highly unlikely. In K.K. and Others v Russia this was justified by the fact that the men were categorised as ‘dead’ and not ‘disappeared’, along with the fact that their families were allegedly not treated in a ‘manifestly disrespectful’ manner. Those two conditions were not taken into consideration in F.A.J. and B.M.R.A. v Spain. ¹⁰⁴

While the HRC found the cases inadmissible, in one of the opinions to F.A.J. and B.M.R.A. v Spain, five HRC members stated that the HRC will monitor the process of addressing Spain's difficult past, historical memory, establishing of truth, and identifying and commemorating the victims of the Civil War and Franco's dictatorship in the context of the country's periodic review. In the opinion of the HRC members, the domestic process is the remedy for the ‘authors’ plight and their entitlement to obtain some sense of closure’. ¹⁰⁵ In fact, UN treaty bodies, including the HRC, have raised the enforced disappearances that occurred in the ‘very distant past’ when reviewing country reports numerous times, including with regard to Spain, ¹⁰⁶ as did various UN special procedures. ¹⁰⁷ By addressing those issues in the reporting procedures, the HRC set expectations for victims, which were then not met when the victims tried to reach the HRC via the complaint mechanism. While approaching this issue within the reporting process might push States to adopt new measures or strengthen policies, it has a different meaning than views in an individual communication, which permits the HRC to analyse whether an ICCPR violation happened with regard to a specific person.

Last but not least, an Amnesty Law in Spain made it impossible to obtain justice domestically for the authors of F.A.J. and B.M.R.A. v Spain. ¹⁰⁸ Treaty bodies, including the HRC, have repeatedly criticised within the State reporting procedure that the Amnesty Law remains in force, recommending Spain to either repeal or amend it. ¹⁰⁹ The HRC specifically mentioned that the Amnesty Law hinders the investigation of past enforced disappearances. ¹¹⁰ Spain has not followed the recommendation to date, so the Amnesty Law remains in force. If Spain had followed the recommendation, the authors of F.A.J. and B.M.R.A. v Spain could possibly have obtained closure through domestic procedures. Therefore, responding that domestic process in Spain is the right remedy for the applicants, which will be monitored by the HRC in Spain's periodic review – ¹¹¹ in which relevant HRC recommendations have previously been ignored – appears at least contradictory.