Briefing note. Discussion of the Declaration of Absence in Cases of Disappearance

The effects of the crisis on unemployment, wages and benefits have put Mexicans in a situation of economic insecurity. Disappearances complicate the economic circumstances of a victim’s family. The disappeared contributed with an important share of the household income through wages and social benefits such as health care and government housing assistance in the National Workers Housing Fund Institute (Instituto Nacional para el Fomento de la Vivienda de los Trabajadores or INFONAVIT). Families of the disappeared cannot receive any pension payments because the whereabouts of the victim is unknown, and therefore she or he cannot be declared dead. Also, the situation of uncertainty and worry for their loved ones has impacted families’ physical and emotional health. Health expenses therefore add to the costs of investigation and litigation in the absence of state authorities’ investigations in the context of economic and physical insecurity in the country.

If families want to retain social benefits and receive some form of pension, they have to apply for the presumption of death of the victim, which takes up to six year at least to complete. This impacts families emotionally because once the person is presumed dead, investigations end. Thus, families feel they betrayed their disappeared by having to choose access to basic services over looking for their missing relative.

These economic circumstances have made the declaration of absence in cases of disappearance a pressing issue for family organizations with disappeared relatives such as FUUNDEC,FUNDEM and the Victims Platform of the MPJD. The declaration of absence protects the right of legal personality of the disappeared (Click for more information). In that way, families can retain their rights to health care, a pension etc while they search for their loved ones without declaring their relatives dead. The concept of declaration of absence is contained in international humanitarian and human rights law and has been implemented in cases of disappearances in Bosnia-Herzegovina, Colombia and Perú.

Most recently, the law of declaration of absence in cases of disappereances was approved in the state of Coahuila thanks to the collaboration between state authorities and the families of FUUNDEC (See description of FUUNDEC in this main menu of blog). This law innovates not only because of its participatory approach in law formulation but also because it recognizes the social and economic rights of people that were disappeared in Coahuila, including residents of other Mexican states and central American immigrants. For instance, the law provides education, health, psychological, financial and employment assistance to families of the disappeared, it suspends mortgage payments and requires employers/board of directors to pay a salary to the immediate relatives of the disappeared employee or financial dividends to the disappeared co-owner or shareholder until the missing person is found. Also, the law requires judges to decide whether or not a person is disapperead within one month as oppossed to the 6- year period of the presumption of death application   (Click here to see Coahuila’s law).

The payment of salaries or dividents to a disappeared person has been controversial issue. It has caused conflict between the governor, and some large businesses and local politicians in Coahuila. The latter argue that business pay taxes so the government can take care of human rights matters. Interestingly, large corporations in Coahuila do not complain when the rest of society, including the working poor, subsidize their infrastructural needs, tax breaks, etc.

Family organizations such as FUUNDEC, FUNDEM and Victims Platform are trying to expand this local law to the rest of the country. To do so, it is necessary to create a federal law that recognizes the declaration of absence in cases of disappereance. For that reason, several civil society organizations are discussing the declaration of absence in Mexico this Monday in Mexico City. See below for more details.

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