Committee on Enforced Disappearances

List of issues in relation to the report submitted by Cabo Verde under article 29 (1) of the Convention *

I.General information

1.Given that, under article 12 of the Constitution, international treaties ratified by the State Party take precedence over national laws, please indicate what measures have been taken to promote the invocation of the Convention before, and its direct application by, the national courts and other relevant authorities. Please provide examples of case law reflecting such application.

2.With reference to paragraphs 4, 5 and 37 of the State Party’s report, please provide further information on:

(a)The mandate, composition and working methods of the Interministerial Commission for the Preparation of National Human Rights Reports;

(b)The measures taken to ensure the effective participation of civil society organizations, victims’ families and relevant stakeholders in the drafting of the report, including consultations conducted, documentation thereof and feedback mechanisms put in place, in accordance with the guidelines on the form and content of reports under article 29 to be submitted by States Parties to the Convention;

(c)The contributions received from the organizations and persons consulted and how they were taken into account in the drafting of the report.

3.With reference to paragraphs 32–36 of the report, please describe:

(a)The mandate and activities of the Ombudsman’s Office and the National Commission for Human Rights and Citizenship in relation to the Convention, including details of whether both institutions have competence to receive and handle individual cases related to alleged disappearances;

(b)The measures taken to ensure the full independence of the Ombudsman’s Office and the National Commission for Human Rights and Citizenship, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles);

(c)The financial, technical and human resources allocated to these bodies to enable them to effectively carry out their mandate.

4.Please indicate whether the State Party intends to make the declarations provided for in articles 31 and 32 of the Convention, which relate to the Committee’s competence to receive and consider individual and inter-State communications (arts. 31 and 32).

II.Definition and criminalization of enforced disappearance (arts. 1–7)

5.With reference to paragraphs 55–57 of the State Party’s report, please indicate how the State Party ensures that no exceptional circumstances may be invoked to justify enforced disappearance and specify how this prohibition is reflected in domestic law and practice (art. 1).

6.With regard to paragraphs 28 and 29 of the report, which indicate that no cases of enforced disappearance have been recorded, please explain what mechanisms are in place to ensure the systematic identification, registration and classification of cases of disappearance, particularly with a view to differentiating between enforced disappearance as defined under article 2 of the Convention, the acts referred to in article 3 of the Convention and other forms of disappearance. In this regard, please specify the measures taken to ensure that relevant statistical information can be gathered and used whenever necessary to identify cases of enforced disappearance in the State Party (arts. 2 and 3).

7.With regard to paragraph 58 of the report, please explain how article 268-B of the Criminal Code, in which enforced disappearance is included among crimes against humanity, complies with the definition of enforced disappearance set out in article 2 of the Convention. Please specify the circumstances under which enforced disappearance constitutes a crime against humanity, what legal consequences and sanctions apply in such cases, and how cases of enforced disappearance that do not amount to a crime against humanity are addressed by national authorities (arts. 2, 5 and 7).

8.Please also specify how the concept of “agreement” contained in article 268-B of the Convention corresponds to the concept of “acquiescence” contained in article 2 of the Convention and how it is applied in practice.

9.Please describe the measures taken to incorporate enforced disappearance into national legislation as a separate offence for enforced disappearances that do not qualify as crime against humanity as provided for under such applicable international law, in accordance with the definition contained in article 2 of the Convention (arts. 2 and 4).

10.In the light of paragraph 58 of the report, please specify whether the continuous character of enforced disappearance is systematically considered, including with regard to the statute of limitations and the obligation to search for disappeared persons until their fate and whereabouts have been clarified (arts. 2, 12, 24 and 30).

11.Please describe the applicable legislation governing the conduct referred to in article 6 (1) (a) and (b) of the Convention and explain how this legislation ensures that any person engaging in such conduct is held criminally responsible. Please further specify the legislation in place to address the prohibition of invoking an order or instruction from a public authority to justify an offence of enforced disappearance and indicate whether the concept of “due obedience” established in articles 35 and 39 of the Criminal Code has any impact on the effective implementation of this prohibition. Please also explain how national legislation ensures that a person who refuses to obey orders or instructions that prescribe, authorize or encourage enforced disappearance will not be punished, and provide information on the remedies available to subordinates facing potential disciplinary measures as a result of their refusal to carry out such orders (art. 6).

12.With reference to paragraph 78 of the report, according to which the general rules on mitigating and aggravating circumstances established in the Criminal Code apply to offences of enforced disappearance, please specify the measures taken to ensure that the application of these circumstances is carried out in full compliance with article 7 (2) of the Convention (art. 7).

III.Judicial procedure and cooperation in relation to enforced disappearance (arts. 8–15)

13.With reference to paragraphs 81–84 of the State Party’s report, which state that enforced disappearances are not subject to any statute of limitations for the initiation of criminal proceedings, please specify how this principle is applied in practice in the absence of an autonomous crime of enforced disappearance (arts. 2, 8, 12 and 24).

14.With regard to paragraphs 82, 83 and 111 of the report, please provide information on the measures taken to ensure that the search for disappeared persons continues until their fate is clarified. In particular, please describe the protocols and procedures in place for searching for, locating and releasing disappeared persons and for identifying, recovering and returning the located body or remains of a disappeared person (arts. 2, 12 and 24).

15.With reference to paragraphs 86–97 of the report, please specify how the State Party establishes its competence to exercise jurisdiction over enforced disappearance in the cases referred to in article 9 of the Convention, in particular:

(a)When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in the State Party;

(b)When the alleged offender is one of its nationals;

(c)When the disappeared person is one of its nationals and the State Party considers it appropriate (art. 9).

16.With reference to paragraph 110 of the State Party’s report, please clarify whether military courts may exercise jurisdiction over cases of enforced disappearance where the alleged perpetrator is a member of the armed forces. If so, please explain how this is compatible with the requirement that enforced disappearance be exclusively investigated and tried by ordinary competent, independent and impartial civilian judicial authorities, and indicate whether legislative reform is envisaged to ensure that such cases remain expressly outside military jurisdiction (arts. 11 and 12).

17.Please describe the measures taken to prevent and combat corruption in the treatment of any case related to enforced disappearance, including the action taken by the commission tasked with fighting corruption, as well as the outcomes of these measures (arts. 11 and 12).

18.With reference to paragraphs 104–110 of the report, please indicate how the State Party ensures in practice that cases of enforced disappearance are investigated and tried by competent, independent and impartial authorities. In this context, please specify the role of the Public Prosecution Service and the criminal investigation police (arts. 12 and 24).

19.In the light of paragraph 111 of the report, according to which enforced disappearance is a public offence that is investigated ex officio by the Public Prosecution Service as soon as it becomes aware of the crime, please specify how alleged acts of disappearance are recorded and classified in practice in the absence of an autonomous crime, and describe the procedures and safeguards applied in the investigation of such allegations until the fate or whereabouts of the disappeared person is clarified. Please clarify whether the two disappearance cases currently under investigation in Praia, involving three children and one adult, as referred to in paragraph 118 of the State Party’s report, have been examined under article 268-B of the Criminal Code. Please specify the legal classification currently applied to those cases and explain the criteria used by prosecutorial authorities to determine whether a disappearance may amount to an enforced disappearance within the meaning of article 2 of the Convention (art. 12).

20.Regarding paragraphs 166–168 of the State Party’s report, please provide information on:

(a)The measures taken to prevent and combat trafficking in persons, addressing the possible link between such acts and enforced disappearance, and those taken to ensure that the applicable legislation, particularly the law dealing with the prevention of trafficking in persons and the protection of victims, takes sufficient account of the fact that victims may have been victims of disappearance, including enforced disappearance;

(b)Statistical data, specifying the number of alleged victims, disaggregated by sex, age and nationality, the number of complaints made, the number of investigations conducted in connection with such cases, the proportion of proceedings initiated that have resulted in convictions and the penalties imposed;

(c)The results of the National Action Plan to Combat Trafficking in Persons 2018–2021, particularly with regard to the prevention, investigation and punishment of disappearances and enforced disappearances in the context of trafficking, and the measures taken to provide victims with appropriate protection, support and reparation;

(d)The progress made in developing and implementing the National Strategy and the National Action Plan to Combat Trafficking in Persons to meet the requirements of the West African response to trafficking project implemented by the International Centre for Migration Policy Development;

(e)The measures taken to prevent such disappearances (arts. 2, 3, 12 and 24).

21.With regard to paragraphs 152–155 of the report, please describe the legal and practical measures taken to protect complainants, witnesses, relatives of disappeared persons and their lawyers against ill-treatment or intimidation as a result of the complaint or any evidence given. In particular, please provide information on the practical implementation of the legal framework for protecting complainants, witnesses, relatives of disappeared persons and their lawyers against ill-treatment or intimidation that is mentioned by the State Party, indicating whether those measures have already been applied to cases of alleged enforced disappearance or related crimes such as trafficking in persons, forced labour or disappearances in the context of migration. Please specify which authority is responsible for implementing the measures mentioned by the State Party and what criteria that authority uses to determine their applicability (art. 12).

22.Please describe how the State Party ensures that persons suspected of having committed an offence of enforced disappearance are not in a position to influence the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at persons participating in the investigation. Please specify whether national law provides for suspension from duties from the start and for the duration of an investigation when the alleged offender is a public official. Please provide information on the mechanisms in place to ensure that law enforcement officials, members of the security forces or any other public officials who are suspected of being involved in the commission of an enforced disappearance do not participate in the search and investigation (art. 12).

23.Please provide information on any extradition agreements that have been concluded since the Convention entered into force and indicate whether enforced disappearance has been included in these agreements as an extraditable offence. Please specify whether there have been any extraditions related to cases of enforced disappearance that may have occurred since the submission of the State Party’s report (art. 13)

24.Please specify whether the State Party has submitted or received any requests for international cooperation concerning cases of enforced disappearance and, if so, what measures have been taken. Please also specify the restrictions or conditions that may apply to requests for mutual legal assistance or cooperation, in the light of articles 14, 15 and 25 (3) of the Convention (arts. 9, 13–15 and 25).

IV.Measures to prevent enforced disappearances (arts. 16–23)

25.With reference to paragraphs 135–137 of the report of the State Party, please specify the criteria applied in practice to assess the risk that a person may be subjected to enforced disappearance in the event of expulsion, return (“refoulement”), surrender or extradition to another State. Please also specify whether an appeal against a decision to expel, return, surrender or extradite has suspensive effect. Please indicate whether this suspensive effect is automatic or subject to a discretionary decision, and how this ensures compliance with article 16 of the Convention (art. 16).

26.As relates to paragraphs 100–103 of the report, please provide information on the safeguards enjoyed by all persons deprived of their liberty, including access to legal assistance, a medical examination and, where appropriate, consular assistance, from the outset of their deprivation of liberty (arts. 17 and 24).

27.With regard to paragraphs 139–147 of the report, please specify the registers and records concerning persons deprived of their liberty that currently exist and describe the measures taken to ensure that they include all the elements listed in article 17 (3) of the Convention. Please also indicate:

(a)Which authorities are responsible for maintaining and monitoring these registers;

(b)How the registers are kept up-to-date in practice;

(c)Whether they are harmonized and interconnected across all places of deprivation of liberty;

(d)Which authorities and individuals have access to the information that they contain;

(e)What procedures are in place to ensure that any person with a legitimate interest has access to at least the information listed in article 18 (1) of the Convention, what conditions may be imposed on such access and what procedures are available in the event of a refusal to disclose this information (arts. 17–22).

28.In relation to paragraphs 35, 142 and 147 of the report, please specify the measures taken to ensure that the Ombudsman’s Office, the National Commission for Human Rights and Citizenship and the national mechanism for the prevention of torture have access to all places where persons may be deprived of liberty, including police stations, prisons, detention cells in airports, psychiatric hospitals and any other premises, even when such visits are made without prior notice. Please specify the frequency of such visits and how the competent authorities monitor the implementation of the recommendations adopted in this context (art. 17).

29.Please provide detailed information on the safeguards put in place to prevent secret detention and enforced disappearances, including:

(a)Maximum periods of detention and the power of the judicial authority to monitor and enforce these periods;

(b)The manner in which the right of detainees to communicate with their lawyer, their relatives and any other person of their choice is guaranteed (arts. 17 and 18).

30.With reference to paragraphs 156–162 of the report, please explain how the State Party ensures that persons deprived of their liberty are released in a manner permitting reliable verification that they have actually been released and assures their physical integrity and their ability to exercise their rights. Please provide information on any complaints received concerning the conditions of release of persons deprived of their liberty or their ability to exercise their rights (art. 21).

31.As relates to paragraphs 138 and 163–165 of the report of the State Party, please describe existing or planned training initiatives and other efforts to raise awareness of the Convention, particularly among law enforcement officials, immigration and border control officials, justice officials, prison staff, medical personnel and other relevant actors, and specify whether this training is mandatory and includes practical guidance on the prevention and investigation of enforced disappearances (art. 23).

V.Measures to protect and ensure the rights of victims of enforced disappearance (art. 24)

32.Please specify whether the definition of “victim” in national law encompasses any individual who has suffered harm as the direct result of an enforced disappearance, in accordance with article 24 (1) of the Convention (art. 24).

33.Please describe how, in the absence of an autonomous crime in national legislation, the existing legal and institutional frameworks of the State Party ensure that any person who has suffered harm as a direct result of an enforced disappearance has the right to obtain prompt, fair and adequate compensation, and provide information on the forms of reparation listed in article 24 (5) of the Convention, including rehabilitation, satisfaction and guarantees of non-repetition, and on the manner in which these rights are implemented in practice (art. 24).

34.Please describe the measures and procedures in place to ensure the right of victims to know the truth regarding the circumstances of the enforced disappearance, and the progress and results of the search and investigation processes, and to ensure that their input, experiences, alternative suggestions, questions and doubts are taken into account at all stages of the procedure (art. 24).

35.Please provide information on the legal situation of disappeared persons whose fate has not been clarified, and that of their relatives, in areas such as social welfare, financial matters, family law and property rights, and the application of a gender perspective in such contexts. Please describe the procedures in place to issue a declaration of absence or of death of the disappeared person and the impact such declarations have on the State Party’s obligation to continue the search and investigation into an enforced disappearance until the fate of the disappeared person has been clarified (art. 24).

VI. Measures to protect children against enforced disappearance (art. 25)

36.With reference to paragraphs 166–168 of the State Party’s report, please describe the measures taken to prevent and combat enforced disappearances of children in the context of trafficking, including data collection, monitoring and inter-agency coordination (arts. 2, 3, 12 and 25).

37.Please indicate whether national law specifically criminalizes the acts described in article 25 (1) of the Convention and, if not, whether the State Party intends to adopt legislation for this purpose (art. 25).

38.Please describe the measures taken to ensure that birth registration is accessible throughout the country to enable the registration of all children, with a view to preventing any risk of wrongful removal or disappearance of children, and provide details on the results of these efforts (art. 25).

39.Please describe the measures taken to prevent the disappearance of unaccompanied children and protect them from enforced disappearance, particularly in the context of migration and trafficking, and also describe the measures taken to ensure that information on unaccompanied children is properly recorded in order to facilitate the identification of disappeared children (art. 25).

40.Please describe the system of adoption or other forms of placement of children in force in the State Party and indicate whether national legislation establishes any legal procedures for reviewing and, where appropriate, annulling any adoption, placement or guardianship arrangement that resulted from an enforced disappearance, in accordance with article 25 (4) of the Convention (art. 25).