The Pitfalls of Regulating the Legal Status of Disappeared Persons Through Declaration of Death

Disappeared persons are placed in a legal limbo where, due to the concealment of their fate and whereabouts, it is unknown whether they are dead or alive. The regulation of their legal status while their fate is unknown is necessary to settle matters related to social welfare, inheritance, family law and property rights. In the absence of ad hoc legislation to address these social and legal consequences, in most countries provisions on presumption of death have been used. In addition, compensation has often been made conditional on obtaining a declaration of death. Not only does this fail to accurately address the circumstances of enforced disappearance, but it also imposes an additional emotional burden on relatives, which may amount to ill-treatment. In some cases, the presumption of death has been used to hamper investigations and to grant impunity to those responsible for the crime. While enforced disappearance is a continuous crime and is not subject to statutes of limitations until it comes to an end, if fictitiously re-qualified as homicide, statutory limitations can be applied to criminal proceedings and other unwarranted consequences may be triggered. To correctly address the features of this heinous practice and the psychological implications for relatives, some states developed ‘declarations of absence due to enforced disappearance’ as a tool to tackle these shortcomings. International practice concerning the limitations related to the use of the presumption and declaration of death is developing