Distr.
GENERAL

A/RES/47/133
18 December 1992

Declaration on the Protection of all Persons
from
Enforced Disappearance

General Assembly resolution 47/133 of 18
December 1992

The General
Assembly,

Considering that, in accordance with the principles
proclaimed in the Charter of the United Nations and other international
instruments, recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world,

Bearing in mind the
obligation of States under the Charter, in particular Article 55, to promote
universal respect for, and observance of, human rights and fundamental
freedoms,

Deeply concerned that in many countries, often in a
persistent manner, enforced disappearances occur, in the sense that persons are
arrested, detained or abducted against their will or otherwise deprived of their
liberty by officials of different branches or levels of Government, or by
organized groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government, followed
by a refusal to disclose the fate or whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of their liberty, which places such
persons outside the protection of the law,

Considering that
enforced disappearance undermines the deepest values of any society committed to
respect for the rule of law, human rights and fundamental freedoms, and that the
systematic practice of such acts is of the nature of a crime against
humanity,

Recalling its resolution 33/173 of 22 December 1978, in
which it expressed concern about the reports from various parts of the world
relating to enforced or involuntary disappearances, as well as about the anguish
and sorrows caused by those disappearances, and called upon Governments to hold
law enforcement and security forces legally responsible for excesses which might
lead to enforced or involuntary disappearances of persons,

Recalling
also the protection afforded to victims of armed conflicts by the Geneva
Conventions of 12 August 1949 and the Additional Protocols thereto, of
1977,

Having regard in particular to the relevant articles of the
Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights, which protect the right to life, the right to liberty and
security of the person, the right not to be subjected to torture and the right
to recognition as a person before the law,

Having regard also to
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, which provides that States parties shall take effective measures
to prevent and punish acts of torture,

Bearing in mind the Code of
Conduct for Law Enforcement Officials, the Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials, the Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power and the Standard Minimum
Rules for the Treatment of Prisoners,

Affirming that, in order to
prevent enforced disappearances, it is necessary to ensure strict compliance
with the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment contained in the annex to its resolution 43/173 of 9
December 1988, and with the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions, set forth in the
annex to Economic and Social Council resolution 1989/65 of 24 May 1989 and
endorsed by the General Assembly in its resolution 44/162 of 15 December
1989,

Bearing in mind that, while the acts which comprise enforced
disappearance constitute a violation of the prohibitions found in the
aforementioned international instruments, it is none the less important to
devise an instrument which characterizes all acts of enforce disappearance of
persons as very serious offences and sets forth standards designed to punish and
prevent their commission,

° Proclaims the present Declaration on the Protection of All
Persons from Enforced Disappearance, as a body of principles for all States;

° Urges that all efforts be made so that the Declaration becomes
generally known and respected;

Article 1

° Any act of enforced disappearance is an offence to human dignity.
It is condemned as a denial of the purposes of the Charter of the United
Nations and as a grave and flagrant violation of the human rights and
fundamental freedoms proclaimed in the Universal Declaration of Human Rights
and reaffirmed and developed in international instruments in this field.

° Any act of enforced disappearance places the persons subjected
thereto outside the protection of the law and inflicts severe suffering on
them and their families. It constitutes a violation of the rules of
international law guaranteeing, inter alia, the right to recognition as a
person before the law, the right to liberty and security of the person and the
right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment. It also violates or constitutes a grave threat to the
right to life.

Article 2

° No State shall practise, permit or tolerate enforced
disappearances.
° States shall act at the national and regional
levels and in cooperation with the United Nations to contribute by all means
to the prevention and eradication of enforce disappearance.

Article
3

Each State shall take effective legislative, administrative,
judicial or other measures to prevent and terminate acts of enforced
disappearance in any territory under its jurisdiction.

Article
4

° All acts of enforced disappearance shall be offences under
criminal law punishable by appropriate penalties which shall take into account
their extreme seriousness.

Mitigating circumstances may be established
in national legislation for persons who, having participated in enforced
disappearances, are instrumental in bringing the victims forward alive or in
providing voluntarily information which would contribute to clarifying cases
of enforced disappearance.

Article 5

In addition to such
criminal penalties as are applicable, enforced disappearances render their
perpetrators and the State or State authorities which organize, acquiesce in or
tolerate such disappearances liable under civil law, without prejudice to the
international responsibility of the State concerned in accordance with the
principles of international law.

Article 6

° No order or instruction of any public authority, civilian,
military or other, may be invoked to justify an enforced disappearance. Any
person receiving such an order or instruction shall have the right and duty
not to obey it.
° Each State shall ensure that orders or
instructions directing, authorizing or encouraging any enforced disappearance
are prohibited.
° Training of law enforcement officials shall
emphasize the provisions in paragraphs 1 and 2 of the present article.

Article 7

No circumstances whatsoever, whether a threat
of war, a state of war, internal political instability or any other public
emergency, may be invoked to justify enforced disappearances.

Article
8

° No State shall expel, return (refouler) or extradite a person to
another State where there are substantial grounds to believe that he would be
in danger of enforced disappearance.
° For the purpose of
determining whether there are such grounds, the competent authorities shall
take into account all relevant considerations including, where applicable, the
existence in the State concerned of a consistent pattern of gross, flagrant or
mass violations of human rights.

Article 9

° The right to a prompt and effective judicial remedy as a means of
determining the whereabouts or state of health of persons deprived of their
liberty and/or identifying the authority ordering or carry out the deprivation
of liberty is required to prevent enforced disappearances under all
circumstances, including those referred to in article 7 above.
° In
such proceedings, competent national authorities shall have access to all
places where persons deprived of their liberty are being held and to each part
of those places, as well as to any place in which there are grounds to believe
that such persons may be found.
° Any other competent authority
entitled under the law of the State or by any international legal instrument
to which the State is a party may also have access to such places.

Article 10

° Any person deprived of liberty shall be held in an officially
recognized place of detention and, in conformity with national law, be brought
before a judicial authority promptly after detention.
° Accurate
information on the detention of such persons and their place or places of
detention, including transfers, shall be made promptly available to their
family members, their counsel or to any other persons having a legitimate
interest in the information unless a wish to the contrary has been manifested
by the persons concerned.
° An official up-to-date register of all
persons deprived of their liberty shall be maintained in every place of
detention. Additionally, each State shall take steps to maintain similar
centralized registers. The information contained in these registers shall be
made available to the persons mentioned in the preceding paragraph, to any
judicial or other competent and independent national authority and to any
other competent authority entitled under the law of the State concerned or any
international legal instrument to which a State concerned is a party, seeking
to trace the whereabouts of a detained person.

Article
11

All persons deprived of liberty must be released in a manner
permitting reliable verification that they have actually been released and,
further, have been released in conditions in which their physical integrity and
ability fully to exercise their rights are assured.

Article 12

° Each State shall establish rules under its national law
indicating those officials authorized to order deprivation of liberty,
establishing the conditions under which such orders may be given, and
stipulating penalties for officials who, without legal justification, refuse
to provide information on any detention.
° Each State shall
likewise ensure strict supervision, including a clear chain of command, of all
law enforcement officials responsible for apprehensions, arrests, detentions,
custody, transfers and imprisonment, and of other officials authorized by law
to use force and firearms.

Article 13

° Each State shall ensure that any person having knowledge or a
legitimate interest who alleges that a person has been subjected to enforced
disappearance has the right to complain to a competent and independent State
authority and to have that complaint promptly, thoroughly and impartially
investigated by that authority. Whenever there are reasonable grounds to
believe that an enforced disappearance has been committed, the State shall
promptly refer the matter to that authority for such an investigation, even if
there has been no formal complaint. No measure shall be taken to curtail or
impede the investigation.
° Each State shall ensure that the
competent authority shall have the necessary powers and resources to conduct
the investigation effectively, including powers to compel attendance of
witnesses and production of relevant documents and to make immediate on-site
visits.
° Steps shall be taken to ensure that all involved in the
investigation, including the complainant, counsel, witnesses and those
conducting the investigation, are protected against ill-treatment,
intimidation or reprisal.
° The findings of such an investigation
shall be made available upon request to all persons concerned, unless doing so
would jeopardize an ongoing criminal investigation.
° Steps shall
be taken to ensure that any ill-treatment, intimidation or reprisal or any
other form of interference on the occasion of the lodging of a complaint or
during the investigation procedure is appropriately punished.
° An
investigation, in accordance with the procedures described above, should be
able to be conducted for as long as the fate of the victim of enforced
disappearance remains unclarified.

Article 14

Any person
alleged to have perpetrated an act of enforced disappearance in a particular
State shall, when the facts disclosed by an official investigation so warrant,
be brought before the competent civil authorities of that State for the purpose
of prosecution and trial unless he has been extradited to another State wishing
to exercise jurisdiction in accordance with the relevant international
agreements in force. All States should take any lawful and appropriate action
available to them to bring to justice all persons presumed responsible for an
act of enforced disappearance, who are found to be within their jurisdiction or
under their control.

Article 15

The fact that there are
grounds to believe that a person has participated in acts of an extremely
serious nature such as those referred to in article 4, paragraph 1, above,
regardless of the motives, shall be taken into account when the competent
authorities of the State decide whether or not to grant asylum.

Article 16

° Persons alleged to have committed any of the acts referred to in
article 4, paragraph 1, above, shall be suspended from any official duties
during the investigation referred to in article 13 above.
° They
shall be tried only by the competent ordinary courts in each State, and not by
any other special tribunal, in particular military courts.
° No
privileges, immunities or special exemptions shall be admitted in such trials,
without prejudice to the provisions contained in the Vienna Convention on
Diplomatic Relations.
° The persons presumed responsible for such
acts shall be guaranteed fair treatment in accordance with the relevant
provisions of the Universal Declaration of Human Rights and other relevant
international agreements in force at all stages of the investigation and
eventual prosecution and trial.

Article 17

° Acts constituting enforced disappearance shall be considered a
continuing offence as long as the perpetrators continue to conceal the fate
and the whereabouts of persons who have disappeared and these facts remain
unclarified.
° When the remedies provided for in article 2 of the
International Covenant on Civil and Political Rights are no longer effective,
the statute of limitations relating to acts of enforced disappearance shall be
suspended until these remedies are re-established.
° Statutes of
limitations, where they exist, relating to acts of enforced disappearance
shall be substantial and commensurate with the extreme seriousness of the
offence.

Article 18

° Persons who have or are alleged to have committed offences
referred to in article 4, paragraph 1, above, shall not benefit from any
special amnesty law or similar measures that might have the effect of
exempting them from any criminal proceedings or sanction.

In the
exercise of the right of pardon, the extreme seriousness of acts of enforced
disappearance shall be taken into account.

Article 19

The
victims of acts of enforced disappearance and their family shall obtain redress
and shall have the right to adequate compensation, including the means for as
complete a rehabilitation as possible. In the event of the death of the victim
as a result of an act of enforced disappearance, their dependents shall also be
entitled to compensation.

Article 20

° States shall prevent and suppress the abduction of children of
parents subjected to enforced disappearance and of children born during their
mother's enforced disappearance, and shall devote their efforts to the search
for and identification of such children and to the restitution of the children
to their families of origin.
° Considering the need to protect the
best interests of children referred to in the preceding paragraph, there shall
be an opportunity, in States which recognize a system of adoption, for a
review of the adoption of such children and, in particular, for annulment of
any adoption which originated in enforced disappearance. Such adoption should,
however, continue to be in force if consent is given, at the time of the
review, by the child's closest relatives.
° The abduction of
children of parents subjected to enforced disappearance or of children born
during their mother's enforced disappearance, and the act of altering or
suppressing documents attesting to their true identity, shall constitute an
extremely serious offence, which shall be punished as such.
° For
these purpose, States shall, where appropriate, conclude bilateral and
multilateral agreements.

Article 21

The provisions of the
present Declaration are without prejudice to the provisions enunciated in the
Universal Declaration of Human Rights or in any other international instrument,
and shall not be construed as restricting or derogating from any of those
provisions.

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