Decision; Subjects: CIVIL AND POLITICAL RIGHTS, DISAPPEARANCE OF PERSONS, ALGERIA, TORTURE AND OTHER CRUEL TREATMENT; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.11-43115 (E) 100611 160611
Human Rights Committee
101st session
14 March–1 April 2011
Views
Communication No. 1780/2008
Submitted by:
Mériem Zarzi (represented by TRIAL –
Swiss Association against Impunity)
Alleged victim:
Brahim Aouabdia (the author’s husband), the
author herself, and their six children,
Mohamed Salah Aouabdia (31), Abderaouf
Aouabdia (30), Abdelatif Aouabdia (25), Seif
Eddine Aouabdia (24), Shoaïb Aouabdia (19)
and Sabah Aouabdia (18)
State party:
Algeria
Date of communication:
29 October 2007 (initial submission)
Document reference:
Special Rapporteur’s rule 97 decision,
transmitted to the State party on 24 April
2008 (not issued in document form)
Date of adoption of Views:
22 March 2011
Subject matter:
Enforced disappearance of a person detained
for nearly 17 years
Procedural issues:
Exhaustion of domestic remedies
Substantive issues:
Right to life, prohibition of torture and cruel
and inhuman treatment, right to liberty and
security of person, respect for the inherent
dignity of the human person, recognition as a
person before the law
Articles of the Covenant:
Article 2, paragraph 3; article 6, paragraph 1;
article 7; article 9, paragraphs 1–4; article 10;
* Made public by decision of the Human Rights Committee.
United Nations
CCPR/C/101/D/1780/2008
International Covenant on
Civil and Political Rights
Distr.: Restricted*
19 May 2011
English
Original: French
CCPR/C/101/D/1780/2008
2
GE.11-43115
article 16
Articles of the Optional Protocol:
Article 5, paragraphs 2 (a) and (b)
On 22 March 2011, the Human Rights Committee adopted the annexed text as the
Committee’s Views under article 5, paragraph 4, of the Optional Protocol in respect of
communication No. 1780/2008.
[Annex]
CCPR/C/101/D/1780/2008
GE.11-43115
3
Annex
Views of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights (101st session)
concerning
Communication No. 1780/2008**
Submitted by:
Mériem Zarzi (represented by TRIAL –
Swiss Association against Impunity)
Alleged victim:
Brahim Aouabdia (the author’s husband), the
author herself, and their six children,
Mohamed Salah Aouabdia (31), Abderaouf
Aouabdia (30), Abdelatif Aouabdia (25), Seif
Eddine Aouabdia (24), Shoaïb Aouabdia (19)
and Sabah Aouabdia (18)
State party:
Algeria
Date of communication:
29 October 2007 (initial submission)
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 22 March 2011,
Having concluded its consideration of communication No. 1780/2008, submitted to
the Human Rights Committee by Mériem Zarzi under the Optional Protocol to the
International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author
of the communication,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1
The author of the communication, dated 29 October 2007, is Mériem Zarzi, an
Algerian national. She submits this communication on behalf of her husband, Brahim
Aouabdia, who was born on 8 July 1943 in Aïn Mlila and formerly worked as a tailor in
** The following members of the Committee participated in the examination of the present
communication: Mr. Ahmad Amin Fathalla, Mr. Cornelis Flinterman, Mr. Yuji Iwasawa, Ms. Helen
Keller, Ms. Zonke Zanele Majodina, Mr. Gerald L. Neuman, Mr. Michael O’Flaherty, Mr. Rafael
Rivas Posada, Sir Nigel Rodley, Mr. Krister Thelin and Ms. Margo Waterval.
Pursuant to rule 90 of the Committee’s rules of procedure, Mr. Lazhari Bouzid did not participate in
the adoption of the Views.
The texts of individual opinions signed by Committee members Mr. Rafael Rivas Posada and Mr.
Fabián Omar Salvioli are appended to the present decision.
CCPR/C/101/D/1780/2008
4
GE.11-43115
Constantine. The author also submits the communication on behalf of herself and the
couple’s six children, Mohamed Salah Aouabdia (31), Abderaouf Aouabdia (30), Abdelatif
Aouabdia (25), Seif Eddine Aouabdia (24), Shoaïb Aouabdia (19) and Sabah Aouabdia
(18). The author claims that her husband is the victim of violations by Algeria of articles 2,
paragraph 3; 6, paragraph 1; 7; 9, paragraphs 1–4; 10; and 16 of the Covenant. She is
represented by TRIAL (Swiss Association against Impunity). The Covenant and its
Optional Protocol entered into force for Algeria on 12 September 1989.
1.2
On 12 March 2009 the Special Rapporteur for New Communications, acting on
behalf of the Committee, decided to reject the request by the State party of 3 March 2009
that the Committee consider the admissibility of the communication separately from the
merits.
The facts as submitted by the author
2.1
The author claims that her husband, Brahim Aouabdia, was arrested at his workplace
on 30 May 1994 at 9 a.m. by police officers in uniform who asked him to get into his own
car along with three of the officers. These police officers did not present an arrest warrant
and did not inform him of the reasons for the arrest. Many other people, including members
of local councils, representatives elected in the latest cancelled parliamentary elections,
militants and supporters of the Front Islamique du Salut (Islamic Salvation Front) (FIS), a
banned political party, had been arrested in Constantine in the previous days or would be on
the following days in the course of an extensive police operation.1 All these people were
taken to the central police station of Constantine and at least some of them were transferred,
after being held incommunicado for some days or weeks, to the Centre territorial de
recherches et d’investigations (Territorial Centre for Research and Investigation) (CTRI) of
military area No. 5, under the Département de la recherche et de la sécurité (Research and
Security Department) (DRS), the army’s intelligence service. All these people vanished
after being arrested. Brahim Aouabdia was arrested in front of numerous witnesses, but
they left the scene swiftly, fearing that they would also be taken away. An employee at the
tailoring shop where the victim worked and his brother-in-law stayed on the scene and were
later able to describe the circumstances of the arrest to the author.
2.2
Later the same day, after learning of her husband’s arrest, the author went to Coudiat
police station, judicial police headquarters for the wilaya (governorate) of Constantine,
hoping to see her husband or get news of him but not daring to enter. She saw her
husband’s vehicle parked in front of the police station, which confirmed that he was in fact
being held there. For several days, alone or with her children, she went regularly to stand in
front of the police station, hoping that her husband would be released. His vehicle remained
parked nearby. The author’s children also claimed that they regularly saw plain-clothes
police officers driving through the city’s streets in their father’s car.
2.3
After waiting for two weeks, the author began to visit the courthouse regularly,
hoping that her husband would be brought before the public prosecutor and thus placed
under the protection of the law. In June she asked the registrar at the court of Constantine
on a number of occasions when her husband might appear in court. At the end of June 1994
she wrote to the public prosecutor of the court of Constantine, who had jurisdiction, asking
1 The author names 10 other individuals who were allegedly arrested in the course of this operation,
one of whom is the subject of communication No. 992/2001, Bousroual v. Algeria, Views adopted on
30 March 2006. She also mentions some one thousand victims of abductions and arrests in the region,
by various security forces that have been catalogued by the Association of Families of Disappeared
Persons of Constantine and submitted to the Working Group on Enforced or Involuntary
Disappearances.
CCPR/C/101/D/1780/2008
GE.11-43115
5
to know the reasons why her husband was being held in incommunicado detention given
that the legal time limit for police custody was 12 days for the most serious crimes of
subversion and terrorism.2 The public prosecution service refused to record her request on
the grounds that it was not a formal complaint; however, when the author formally
submitted a new complaint for abduction and unlawful imprisonment, she did not receive a
reply.
2.4
The author nevertheless continued to contact all the official bodies that might be
able to intervene in order to shed light on what had happened to her husband. She wrote to
the Minister of the Interior, the Minister of Justice and the President, but to no avail. She
also wrote to the National Human Rights Observatory, a government body responsible for
overseeing and promoting human rights, and was told that it had no information concerning
her husband.
2.5
Only on 29 March 1997, nearly three years after her husband’s arrest and
disappearance, was the author summoned by a police officer to the central police station of
Constantine, where she was handed a report according to which Brahim Aouabdia had been
“brought to the police and then handed over to the CTRI in military area No. 5 of
Constantine on 13 July 1994”. The report does not mention the date of the arrest or the
reasons for it. The author therefore went to the CTRI barracks to enquire about her
husband’s fate and was told that he had never been seen there. She again applied to the
public prosecutor to follow up on the report, but to no avail. She would learn later that her
husband and 22 other individuals, most of whom had been arrested and had disappeared
during the same period and under the same circumstances, had been sentenced to death in
absentia by the criminal court of Constantine3 on 29 July 1995. She asked the prosecution
service for information concerning this sentence but received no reply. Furthermore, the
public prosecution service refused to provide her with a copy of the judgement.
2.6
The author did succeed in obtaining a copy of the decision by the indictments
chamber of Constantine of 6 June 1995, ordering Brahim Aouabdia and 22 other accused
persons to be brought before the criminal court as they were all considered to be fugitives,
and issuing a warrant for their arrest. According to the decision they were all wanted for
crimes allegedly committed in the region, following a request by the public prosecutor of
Constantine dated 12 July 1994 to open criminal proceedings. The author maintains that
this information, according to which Brahim Aouabdia was a fugitive on that date, is
inconsistent with the report she received on 29 March 1997, according to which he had
been handed over to the CTRI on 13 July 1994 and was thus still being held at the police
station on 12 July 1994.
2.7
The author maintains that as she herself submitted a criminal complaint and
informed the public prosecutor at the end of June 1994 that her husband was being detained
by the police at the central police station, the prosecutor could not be unaware of her
husband’s incommunicado detention at the police station for 43 days and his subsequent
transfer to the DRS, after which he had disappeared. All the more so as the public
prosecutor is, under the Code of Criminal Procedure, the legal authority with oversight of
police custody. The author maintains that the public prosecutor should have requested a
judicial investigation or ordered an investigation as soon as he was presented with evidence
of abduction and unlawful imprisonment. Although the prosecution service finally
requested the police to provide the author with a written notice of detention, it never took
action as required by law on the basis of that document.
2 Article 22 of the Counter-Terrorism Act of 30 September 1992.
3 The author refers to Bousroual v. Algeria, supra, note 1, para. 6.
CCPR/C/101/D/1780/2008
6
GE.11-43115
2.8
While the author and her children have never stopped looking for her husband and
trying to learn the truth regarding his fate, because of the red tape associated with his
disappearance she was obliged to launch a procedure to obtain an official finding of
presumed death under Ordinance No. 06-01 implementing the Charter for Peace and
National Reconciliation (27 February 2006). She requested a “disappearance report”, which
was issued on 19 March 2007 by the police of the wilaya (governorate) of Constantine
under article 28 of the Ordinance, which states: “Mr. Brahim Aouabdia is considered to
have disappeared following the investigation and unsuccessful searches conducted by this
service.” The author stresses that the services which provided her with this report are the
very services behind Brahim Aouabdia’s disappearance. On the basis of this report, the
author received a finding of presumed death from the court of Constantine dated 23 May
2007. A death certificate was issued thereafter. The author notes that the date of death to
which the judge refers (30 May 1994) is the date of Brahim Aouabdia’s arrest by the police,
even though according to the police report he had been handed over to the CTRI on 13 July
1994 and was therefore still alive on that date.4 Despite the court decision, the author
maintains that she and her children have not been able to find peace of mind or properly
grieve for their father and husband. Although time has passed, they still believe that Brahim
Aouabdia may be alive and may be held incommunicado in some camp. The author adds
that his disappearance has had incalculable psychological and material consequences for the
family.
The complaint
3.1
The author claims that the facts supporting her petition demonstrate that her husband
has been a victim of enforced disappearance5 since his arrest on 30 May 1994 and that he
remains so to date. He was arrested by Government officials, who then refused to admit that
he had been deprived of liberty or to say what had happened to him. Thirteen years6 since
his disappearance, the chances of finding Brahim Aouabdia alive are shrinking by the day,
and the fact that a declaration of disappearance has been issued makes the author fear that
her husband died as a result of the enforced disappearance that followed his arrest. Noting
that in this particular case the State party has not made any effort to shed light on his fate,
and with reference to the Committee’s general comment on article 6, the author claims that
Brahim Aouabdia was the victim of a violation of article 6 of the Covenant, read alone and
in conjunction with article 2, paragraph 3.
3.2
The author also claims that the enforced disappearance of Brahim Aouabdia and the
resultant suffering and distress constitute treatment violating article 7 of the Covenant.
3.3
With regard to herself and her children, the author claims that the disappearance of
Brahim Aouabdia was and is a paralysing, painful and distressing experience as they know
nothing of his fate and, if he is in fact dead, of the circumstances of his death or where he is
buried. This uncertainty, which continues to cause the whole family deep suffering, has
lasted since 29 May 1994. Since that date, the authorities have at no point sought to relieve
the family’s suffering by conducting effective investigations. The author claims that the
State party has thereby acted in violation of article 7 of the Covenant with regard to the
author and her children.
4 Supra, para. 2.5.
5 The author refers to the definition of “enforced disappearance” in paragraph 2 (i) of article 7 of the
Rome Statute of the International Criminal Court and in article 2 of the International Convention for
the Protection of All Persons from Enforced Disappearance.
6 Now almost 17 years.
CCPR/C/101/D/1780/2008
GE.11-43115
7
3.4
With regard to article 9 of the Covenant, the author recalls that her husband was
arrested by the Constantine police without a warrant and without informing him of the
reasons for his arrest. He has not been seen since. He was then detained arbitrarily and
incommunicado from 30 May to 13 July 1994 — a total of 43 days — by the police before
being handed over to the DRS, which also detained him for an unknown period. The author
maintains that the State party thereby acted in violation of the provisions of article 9,
paragraph 1, in respect of Brahim Aouabdia.
3.5
She adds that as he was at no point informed of the criminal charges against him and
was tried and found guilty in absentia, when he had never been released, article 9,
paragraph 2, of the Covenant was also violated. Furthermore, despite the legal proceedings
instituted against him, Brahim Aouabdia was not brought promptly before a judge or other
judicial authority and was detained incommunicado. The author therefore maintains that her
husband was also the victim of a violation of article 9, paragraph 3. Lastly, the author
claims that Brahim Aouabdia was also the victim of a violation of article 9, paragraph 4,
having been deprived of the right to contest the lawfulness of his detention as he was
deprived of all contact with the outside world during his detention, first at the police station
and then at the DRS from 13 July 1994, and therefore could not contest the legality of his
detention or ask a judge to set him free.
3.6
Furthermore, the author maintains that her husband, who was detained
incommunicado in violation of article 7 of the Covenant, was not treated with humanity or
with respect for the inherent dignity of the human person. She therefore claims that he was
the victim of a violation by the State party of article 10, paragraph 1, of the Covenant.
3.7
In addition, the author claims that, as a victim of enforced disappearance, Brahim
Aouabdia was denied the right to be recognized as having rights and obligations – in other
words, was reduced to the status of “non-person”, in violation of article 16 of the Covenant,
by the State party.
3.8
The author furthermore maintains that as all the steps she took to shed light on her
husband’s fate were unsuccessful, the State party did not fulfil its obligation to guarantee
Brahim Aouabdia an effective remedy, since it should have conducted a thorough and
diligent investigation into his disappearance. She claims that the absence of an effective
remedy is compounded by the fact that a total and general amnesty has been declared
guaranteeing impunity to the individuals responsible for violations. By so doing, in her
view, the State party acted in violation of article 2, paragraph 3, of the Covenant with
regard to her husband.
3.9
Concerning the issue of exhaustion of domestic remedies, the author stresses that
after 13 years,7 all her efforts have been in vain: the authorities have never conducted an
investigation into her husband’s disappearance or reacted to the serious accusations against
the police officers responsible for his disappearance. The letters she has sent regularly since
1994 to the highest levels of State authority have prompted no action. Moreover, she
maintains that she no longer has the legal right to take judicial proceedings since the
promulgation of Ordinance No. 06-01 implementing the Charter for Peace and National
Reconciliation, which prohibits under penalty of imprisonment the pursuit of legal remedies
to shed light on the most serious crimes such as enforced disappearances.8 Not only did all
7 Now almost 17 years.
8 The author points out that the Charter rejects “all allegations holding the State responsible for
deliberate disappearances”. Furthermore, the fact that Ordinance No. 06-01 of 27 February 2006
prohibits the pursuit of legal remedies under penalty of criminal prosecution frees victims of the
obligation to exhaust domestic remedies. According to the Ordinance, it is prohibited to file any
complaints against the security and defence forces for disappearance and other crimes (art. 45). The
CCPR/C/101/D/1780/2008
8
GE.11-43115
the remedies attempted by the author prove ineffective, they are now also totally
unavailable. The author therefore maintains that she is no longer obliged to keep pursuing
her efforts at the domestic level in order to ensure that her communication is admissible
before the Committee as doing so would expose her to criminal prosecution.
State party’s observations on the admissibility of the communication
4.1
On 3 March 2009 the State party contested the admissibility of the present
communication and 10 other communications submitted to the Human Rights Committee.
It did so in a “background memorandum on the inadmissibility of communications
submitted to the Human Rights Committee in connection with the implementation of the
Charter for Peace and National Reconciliation”. The State party is of the view that
communications incriminating public officials, or persons acting on behalf of public
authorities, in enforced disappearances during the period in question, namely, from 1993 to
1998, must be considered in the wider domestic socio-political and security context that
prevailed during a period in which the Government was struggling to fight terrorism.
4.2
During that period the Government had to fight against groups that were not
formally organized. As a result, there was some confusion in the manner in which a number
of operations were carried out among the civilian population, and it was difficult for
civilians to distinguish between the actions of terrorist groups and those of the security
forces, to whom civilians often attributed enforced disappearances. Thus there are
numerous cases of enforced disappearance but, according to the State party, they cannot be
blamed on the Government. Data documented by many independent sources, including the
press and human rights organizations, indicate that the concept of disappearance in Algeria
during the period in question covers six distinct scenarios, none of which can be blamed on
the Government. The first scenario concerns persons who were reported missing by their
relatives when in fact they chose to return secretly in order to join an armed group and
asked their families to report that they had been arrested by the security services as a way of
“covering their tracks” and avoiding “harassment” by the police. The second concerns
persons who were reported missing after their arrest by the security services and who took
advantage of their release to go into hiding. The third scenario concerns persons abducted
by armed groups who, because they were not identified or had taken uniforms or
identification documents from police officers or soldiers, were incorrectly identified as
members of the armed forces or security services. The fourth scenario concerns persons
who were reported missing but who had actually abandoned their families and in some
cases even left the country because of personal problems or family disputes. The fifth
scenario concerns persons reported missing by their families who were actually wanted
terrorists who had been killed and buried in the maquis after factional infighting, doctrinal
disputes or arguments over the spoils of war among rival armed groups. The sixth scenario
concerns persons reported missing who were in fact living in Algeria or abroad under false
identities created via a vast network of document forgers.
4.3
The State party stresses that it was in view of the diversity and complexity of the
situations covered by the concept of disappearance that the Algerian legislature, following
the referendum on the Charter for Peace and National Reconciliation, recommended a
comprehensive approach to the issue of the disappeared under which the cases of all
persons who had disappeared during the national tragedy would be dealt with, all victims
author adds that according to the Ordinance, any allegation or complaint must be declared
inadmissible by the competent legal authority and, moreover, that legal action can be taken against
anyone who, “through his spoken or written statements or any other act, uses or makes use of the
wounds caused by the national tragedy to undermine national institutions, weaken the State, impugn
the honour of its agents (...) or tarnish Algeria’s international reputation” (art. 46).
CCPR/C/101/D/1780/2008
GE.11-43115
9
would be offered support to overcome their ordeal and all victims of disappearance and
their beneficiaries would be entitled to redress. According to statistics from the Ministry of
the Interior, 8,023 disappearances have been reported, 6,774 cases examined, 5,704
approved for compensation and 934 rejected, with 136 still pending. A total of 371,459,390
Algerian dinars (DA) has been paid out as compensation to all the victims concerned. In
addition, a total of DA 1,320,824,683 has been paid out in monthly pensions.
4.4
The State party further argues that not all domestic remedies have been exhausted. It
stresses the importance of distinguishing between simple formalities involving the political
or administrative authorities, non-judicial remedies pursued through advisory or mediation
bodies, and judicial remedies pursued through the competent courts of justice. The State
party observes that, as may be seen from the authors’ statements,9 the complainants have
written letters to political and administrative authorities, petitioned advisory or mediation
bodies and petitioned representatives of the prosecution service (chief prosecutors and
public prosecutors), but have not actually initiated legal proceedings and seen them through
to their conclusion by availing themselves of all available remedies of appeal and judicial
review. Of all these authorities, only the representatives of the prosecution service are
authorized by law to open a preliminary inquiry and refer a case to an investigating judge.
In the Algerian legal system, it is the public prosecutor who receives complaints and who
institutes criminal proceedings if these are warranted. Nevertheless, in order to protect the
rights of victims and their beneficiaries, the Code of Criminal Procedure authorizes the
latter to sue for damages by filing a complaint with the investigating judge. In that case, it is
the victim, not the prosecutor, who institutes criminal proceedings by bringing the matter
before the investigating judge. This remedy, which is provided for in articles 72 and 73 of
the Code of Criminal Procedure, was not used, despite the fact that that would have enabled
the victims to institute criminal proceedings and compelled the investigating judge to
launch an investigation, even if the prosecution service had decided otherwise.
4.5
The State party also notes the authors’ contention that the adoption by referendum of
the Charter for Peace and National Reconciliation and its implementing legislation — in
particular, article 45 of Ordinance No. 06-01 — makes it impossible to consider that any
effective and available domestic remedies exist in Algeria to which the families of victims
of disappearance could have recourse. On this basis, the authors believed they were under
no obligation to bring the matter before the competent courts, thereby prejudging the
position and findings of the courts on the application of the ordinance. However, the
authors cannot invoke this ordinance and its implementing legislation to absolve themselves
of responsibility for failing to institute the legal proceedings available to them. The State
party recalls the Committee’s jurisprudence to the effect that a person’s subjective belief in,
or presumption of, the futility of a remedy does not exempt that person from the
requirement to exhaust all domestic remedies.10
4.6
The State party then turns its attention to the nature, principles and content of the
Charter for Peace and National Reconciliation and its implementing legislation. It stresses
that, in accordance with the principle of the inalienability of peace, which has become an
international right to peace, the Committee should support and consolidate peace and
encourage national reconciliation with a view to strengthening States affected by internal
crises. As part of this effort to achieve national reconciliation, the State party adopted the
Charter. The ordinance implementing the Charter prescribes legal measures for the
discontinuance of criminal proceedings and the commutation or remission of sentences for
9 As the State party has provided a common reply to 11 different communications, it refers to the
“authors”. This reference thus also includes the author of the present communication.
10 The State party cites, in particular, communications Nos. 210/1986 and 225/1987, Pratt and Morgan
v. Jamaica, Views adopted on 6 April 1989.
CCPR/C/101/D/1780/2008
10
GE.11-43115
any person who is found guilty of acts of terrorism or who benefits from the provisions of
the legislation on civil dissent, except for persons who have committed or been accomplices
in mass killings, rapes or bombings in public places. This ordinance also helps to address
the issue of disappearances by introducing a procedure for filing an official finding of
presumed death, which entitles beneficiaries to receive compensation as victims of the
national tragedy. In addition, social and economic measures have been put in place,
including the provision of employment placement assistance and compensation for all
persons considered victims of the national tragedy. Lastly, the ordinance prescribes political
measures, such as a ban on holding political office for any person who in the past exploited
religion in a way that contributed to the national tragedy, and establishes the inadmissibility
of any proceedings brought against individuals or groups who are members of any branch
of Algeria’s defence and security forces for actions undertaken to protect persons and
property, safeguard the nation and preserve its institutions.
4.7
In addition to establishing funds to compensate all victims of the national tragedy,
the sovereign people of Algeria have, according to the State party, agreed to a process of
national reconciliation as the only way to heal the wounds inflicted. The State party insists
that the proclamation of the Charter for Peace and National Reconciliation reflects a desire
to avoid confrontation in the courts, media outpourings and the settling of political scores.
The State party is therefore of the view that the authors’ allegations are covered by the
comprehensive domestic settlement mechanism provided for in the Charter.
4.8
The State party asks the Committee to note how similar the facts and situations
described by the authors are and to take into account the socio-political and security context
at the time; to note that the authors failed to exhaust all domestic remedies; to note that the
authorities of the State party have established a comprehensive domestic mechanism for
processing and settling the cases referred to in these communications through measures
aimed at achieving peace and national reconciliation that are consistent with the principles
of the Charter of the United Nations and subsequent covenants and conventions; to find the
above-mentioned communications inadmissible; and to request the authors to avail
themselves of the appropriate remedy.
Additional observations by the State party on the admissibility of the communication
5.1
On 9 October 2009, the State party transmitted a further memorandum to the
Committee in which it raises the question of whether the submission of a series of
individual communications to the Committee might not actually be an abuse of procedure
aimed at bringing before the Committee a broad historical issue involving causes and
circumstances of which the Committee is unaware. The State party observes in this
connection that these “individual” communications dwell on the general context in which
the disappearances occurred, focusing solely on the actions of the security forces and never
mentioning those of the various armed groups that used criminal concealment techniques to
incriminate the armed forces.
5.2
The State party insists that it will not address the merits of these communications
until the issue of their admissibility has been settled, since all judicial or quasi-judicial
bodies have a duty to deal with preliminary questions before considering the merits.
According to the State party, the decision in the cases in point to consider questions of
admissibility and the merits jointly and simultaneously — aside from the fact that it was not
arrived at on the basis of consultation — seriously prejudices the proper consideration of
the communications in terms of both their general nature and their intrinsic particularities.
Referring to the rules of procedure of the Human Rights Committee, the State party notes
that the sections relating to the Committee’s procedure to determine the admissibility of
communications are separate from those relating to the consideration of communications on
the merits, and that therefore these questions could be considered separately. With regard,
CCPR/C/101/D/1780/2008
GE.11-43115
11
in particular, to the question of the exhaustion of domestic remedies, the State party stresses
that none of the communications submitted by the authors was channelled through the
domestic courts for consideration by the Algerian judicial authorities. Only a few of the
communications that were submitted reached the Indictments Chamber, a high-level
investigating court with jurisdiction to hear appeals.
5.3
Recalling the Committee’s jurisprudence regarding the obligation to exhaust
domestic remedies, the State party stresses that mere doubts about the prospect of success
or worries about delays do not exempt the authors from the obligation to exhaust these
remedies. As to the question of whether the promulgation of the Charter for Peace and
National Reconciliation has made it impossible to avail oneself of any remedy in this area,
the State party replies that the failure of the authors to take any steps to submit their
allegations for examination has so far prevented the Algerian authorities from taking a
position on the scope and limitations of the applicability of the Charter. Moreover, under
the ordinance in question, the only proceedings that are inadmissible are those brought
against “members of any branch of the defence and security forces of the Republic” for
actions consistent with their core duties to the Republic, namely, to protect persons and
property, safeguard the nation and preserve its institutions. On the other hand, any
allegations concerning actions attributable to the defence or security forces that can be
proved to have taken place in any other context are subject to investigation by the
appropriate courts.
5.4
Lastly, the State party reiterates its position with regard to the pertinence of the
settlement mechanism established by the Charter for Peace and National Reconciliation. It
points out in this regard that the author is taking advantage of the procedure enabling her to
have her husband officially declared dead, which entitles her to receive compensation, yet
at the same time condemns the system.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Human Rights
Committee must decide, in accordance with rule 93 of its rules of procedure, whether the
communication is admissible under the Optional Protocol to the Covenant.
6.2
As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee
must ascertain that the same matter is not being examined under another procedure of
international investigation or settlement. The Committee notes that the disappearance of
Brahim Aouabdia was reported to the Working Group on Enforced or Involuntary
Disappearances. However, it recalls that extra-conventional procedures or mechanisms
established by the Commission on Human Rights or the Human Rights Council, and whose
mandates are to examine and report publicly on human rights situations in specific
countries or territories, or cases of widespread human rights violations worldwide, do not
generally constitute an international procedure of investigation or settlement within the
meaning of article 5, paragraph 2 (a), of the Optional Protocol.11 Accordingly, the
Committee considers that the examination of Brahim Aouabdia’s case by the Working
Group on Enforced or Involuntary Disappearances does not render it inadmissible under
this provision.
6.3
The Committee notes that, according to the State party, the author has not exhausted
domestic remedies, since she did not consider the possibility of bringing the matter before
11 Communication No. 540/1993, Celis Laureano v. Peru, Views adopted on 25 March 1996, para. 7.1.
CCPR/C/101/D/1780/2008
12
GE.11-43115
the investigating judge and bringing a civil action. The Committee notes that at the end of
June 1994, the author wrote to the public prosecutor of the court of Constantine to enquire
about the reasons for her husband’s incommunicado detention and then lodged a formal
complaint for the crimes of abduction and unlawful imprisonment, but that this complaint
was not taken up. On 29 March 1997 she was provided with a report according to which her
spouse had been brought to the police and then handed over to the Territorial Centre for
Research and Investigation (CTRI) of military area No. 5, Constantine, on 13 July 1994.
Her attempts to follow up on this report with the public prosecutor were in vain. Allegedly
an arrest warrant had been issued for her husband and he had been condemned to death in
absentia. Nevertheless, the author had not been able to obtain any confirmation of the
sentence or an official copy of the judgement. The Committee recalls its jurisprudence to
the effect that authors must avail themselves of all legal remedies in order to fulfil the
requirement of exhaustion of all available domestic remedies, insofar as such remedies
appear to be effective in the given case and are de facto available to the author.12 Under the
circumstances, the Committee considers that bringing a civil action for offences as serious
as those alleged in the present case cannot be considered a substitute for the proceedings
that should have been brought by the public prosecutor, especially given that the author had
filed a criminal complaint with the prosecutor regarding her husband’s disappearance.
Hence, the Committee considers that article 5, paragraph 2 (b), of the Optional Protocol
does not constitute an impediment to the admissibility of the communication.
6.4
The Committee finds that the author has sufficiently substantiated her allegations
insofar as they raise issues under articles 6, paragraph 1; 7; 9, paragraphs 1–4; 10; 16; and
2, paragraph 3, of the Covenant and therefore proceeds to consider the communication on
the merits.
Consideration of the merits
7.1
The Human Rights Committee has considered the present communication in the
light of all the written information made available to it by the parties, as required under
article 5, paragraph 1, of the Optional Protocol.
7.2
Clearly, the State party prefers to maintain that communications incriminating public
officials, or persons acting on behalf of public authorities, in enforced disappearances
during the period in question — that is, from 1993 to 1998 — must be considered in the
broader context of the prevailing domestic socio-political and security conditions during a
period when the Government was struggling to fight terrorism and that, consequently, they
should not be examined by the Committee under the individual complaints mechanism. The
Committee wishes to recall the concluding observations that it addressed Algeria at its
ninety-first session,13 as well as its jurisprudence,14 according to which the State party
should not invoke the provisions of the Charter for Peace and National Reconciliation
against persons who invoke provisions of the Covenant or who have submitted or may
submit communications to the Committee. As emphasized in its concluding observations
concerning Algeria,15 the Committee considers that Ordinance No. 06-01, without the
amendments recommended by the Committee, appears to promote impunity and therefore
cannot, as it currently stands, be considered compatible with the Covenant. The Committee
12 Communication No. 1003/2001, P.L. v. Germany, decision on admissibility adopted on 22 October
2003, para. 6.5. See also communication No. 433/1990, A.P.A. v. Spain, decision on admissibility
adopted on 25 March 1994, para. 6.2.
13 CCPR/C/DZA/CO/3, para. 7 (a).
14 Communication No. 1196/2003, Boucherf v. Algeria, Views adopted on 30 March 2006, para. 11; and
communication No. 1588/2007, Benaziza v. Algeria, Views adopted on 26 July 2010, para. 9.2.
15 CCPR/C/DZA/CO/3, para. 7.
CCPR/C/101/D/1780/2008
GE.11-43115
13
rejects, furthermore, the argument of the State party that the author’s failure to take any
steps to submit her allegations for examination has so far prevented the Algerian authorities
from taking a position on the scope and limitations of the applicability of the Charter.
7.3
The Committee recalls its Views in previous communications16 and notes that the
State party has provided no response to the author’s allegations on the merits. It further
reaffirms that the burden of proof cannot rest on the author of a communication alone,
especially since an author and a State party do not always have equal access to the
evidence, and that it is frequently the case that the State party alone has the relevant
information.17 It is implicit in article 4, paragraph 2, of the Optional Protocol that the State
party has the duty to investigate in good faith all allegations of violation of the Covenant
made against it and its authorities and to furnish to the Committee the information available
to it.
7.4
Concerning the claim that the author’s husband was detained incommunicado, the
Committee recognizes the degree of suffering involved in being held indefinitely without
contact with the outside world. It recalls its general comment No. 20 on article 7, which
recommends that States parties should make provisions against incommunicado detention.
It notes that Brahim Aouabdia was arrested on 30 May 1994, taken to the central police
station of Constantine and then transferred to the CTRI of military area No. 5. This was
officially confirmed to the author in a police report of 13 July 1994. During this whole
period Brahim Aouabdia was held incommunicado. Allegedly he was sentenced to death in
absentia by the criminal court of Constantine on 29 July 1995, but the author has never
been able to obtain confirmation of this sentence.
7.5
The Committee concludes, on the basis of the material before it, that the
incommunicado detention of Brahim Aouabdia since 1994 and the fact that he was
prevented from communicating with his family and the outside world constitute a violation
of article 7 of the Covenant in his regard.18
7.6
Regarding his wife, Mériem Zarzi, and their six children, the Committee
acknowledges the suffering and distress caused to them by the disappearance of Brahim
Aouabdia, of whom they have had no news for almost 17 years. Although they learned
indirectly that Brahim Aouabdia had been sentenced to death in absentia, they have never
been able to obtain official confirmation of this but had to decide to request a
“disappearance report” and then a declaration of death without any effective investigation
being conducted to establish the victim’s fate. The Committee therefore considers that the
facts before it reveal a violation of article 7 of the Covenant, read alone and in conjunction
with article 2, paragraph 3, with regard to the author and her six children.19
16 See, inter alia, communication No. 1640/2007, El Abani v. Libya, Views adopted on 26 July 2010,
para. 7.3.
17 See communications No. 1422/2005, El Hassy v. Libya, supra, note 16, para. 6.7; No. 139/1983,
Conteris v. Uruguay, Views adopted on 17 July 1985, para. 7.2; and No. 1297/2004, Medjnoune v.
Algeria, Views adopted on 14 July 2006, para. 8.3.
18 See communications No. 1295/2004, El Alwani v. Libya, Views adopted on 11 July 2007, para. 6.5;
No. 1422/2005, El Hassy v. Libya, supra, note 16, para. 6.2; No. 540/1993, Celis Laureano v. Peru,
Views adopted on 25 March 1996, para. 8.5; and No. 458/1991, Mukong v. Cameroon, Views adopted
on 21 July 1994, para. 9.4.
19 See communications No. 1640/2007, El Abani v. Libya, supra, note 16, para. 7.5; No. 1422/2005, El
Hassy v. Libya, supra, note 16, para. 6.11; No. 107/1981, Quinteros v. Uruguay, Views adopted on 21
July 1983, para. 14; and No. 950/2000, Sarma v. Sri Lanka, Views adopted on 31 July 2003, para.
9.5.
CCPR/C/101/D/1780/2008
14
GE.11-43115
7.7
With regard to the alleged violation of article 9, the information before the
Committee shows that Brahim Aouabdia was arrested without a warrant by agents of the
State party, then detained incommunicado without access to defence counsel and without
being informed of the grounds for his arrest or the charges against him. He was allegedly
sentenced to death in absentia on 29 July 1995 by the criminal court of Constantine. The
Committee recalls that, in accordance with article 9, paragraph 4, judicial review of the
lawfulness of detention must provide for the possibility of ordering the release of the
detainee if their detention is declared incompatible with the provisions of the Covenant, in
particular those of article 9, paragraph 1. In the absence of any appropriate explanation by
the State party, the Committee finds the detention of Brahim Aouabdia to be a violation of
article 9.20
7.8
Regarding the author’s complaint under article 10, paragraph 1, the Committee
reiterates that persons deprived of their liberty must not be subjected to any hardship or
constraint other than that resulting from the deprivation of liberty and that they must be
treated with humanity and respect for their dignity. In the absence of State party
information on the treatment of Brahim Aouabdia during his incommunicado detention at
the central police station of Constantine and the CTRI of military area No. 5, the
Committee finds a violation of article 10, paragraph 1, of the Covenant.21
7.9
In respect of article 16, the Committee reiterates its established jurisprudence,
according to which intentionally removing a person from the protection of the law for a
prolonged period of time may constitute a denial of their right to recognition as a person
before the law if the victim was in the hands of the State authorities when last seen and if
the efforts of their relatives to obtain access to effective remedies, including judicial
remedies, have been systematically impeded.22 In the present case, the State authorities,
despite having acknowledged Brahim Aouabdia’s detention by providing his wife with a
report stating that he had been arrested by the police, held under their control and then
transferred to the CTRI of military area No. 5, have not given the family any other
information. The Committee therefore concludes that the enforced disappearance of Brahim
Aouabdia for nearly 17 years denied him the protection of the law for the same period and
deprived him of his right to recognition as a person before the law, in violation of article 16
of the Covenant.
7.10
The author also invokes article 2, paragraph 3, of the Covenant, which requires
States parties to ensure that individuals have accessible, effective and enforceable remedies
for asserting the rights enshrined in the Covenant. The Committee reiterates the importance
that it attaches to States parties’ establishment of appropriate judicial and administrative
mechanisms for addressing alleged violations of rights under domestic law. It refers to its
general comment No. 31, which states that failure by a State party to investigate allegations
of violations could in and of itself give rise to a separate breach of the Covenant.23 In the
present case, the information before the Committee indicates that Brahim Aouabdia did not
have access to an effective remedy, in that the State party failed in its obligation to protect
his life, and the Committee therefore concludes that the facts before it reveal a violation of
article 6 of the Covenant, read in conjunction with article 2, paragraph 3.
20 See communication No. 1297/2004, Medjnoune v. Algeria, Views adopted on 14 July 2006, para. 8.5.
21 See general comment No. 21 [44] on art. 10, para. 3 and communications No. 1134/2002, Gorji-
Dinka v. Cameroon, Views adopted on 17 March 2005, para. 5.2; and No. 1422/2005, El Hassy v.
Libya, supra, note 16, para. 6.4.
22 See communications No. 1327/2004, Grioua v. Algeria, Views adopted on 10 July 2007, para. 7.8;
and No. 1495/2006, Zohra Madaoui v. Algeria, Views adopted on 28 October 2008, para. 7.7.
23 Paras. 15 and 18.
CCPR/C/101/D/1780/2008
GE.11-43115
15
7.11
Having adopted a decision on the violation of article 6 of the Covenant, read in
conjunction with article 2, paragraph 3, the Committee does not consider it necessary to
examine separately the complaints relating solely to article 6.
8.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
facts before it disclose violations by the State party of article 6, read in conjunction with
article 2, paragraph 3; article 7; article 9; article 10, paragraph 1; and article 16 of the
Covenant with regard to Brahim Aouabdia. Moreover, the facts reveal a violation of article
7 alone and read in conjunction with article 2, paragraph 3, with regard to the author (the
victim’s wife) and their six children.
9.
In accordance with article 2, paragraph 3, of the Covenant, the State party is under
an obligation to provide the author with an effective remedy, including by (i) conducting a
thorough and effective investigation into the disappearance of Brahim Aouabdia; (ii)
providing his family with detailed information about the results of the investigation; (iii)
freeing him immediately if he is still being detained incommunicado; (iv) if he is dead,
handing over his remains to his family; (v) prosecuting, trying and punishing those
responsible for the violations committed; and (vi) providing adequate compensation for the
author and her children for the violations suffered, and for Brahim Aouabdia if he is alive.
The State party is also under an obligation to take steps to prevent similar violations in the
future.
10.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether or not there has
been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory or subject to its
jurisdiction the rights recognized in the Covenant and to provide an effective and
enforceable remedy should it be established that a violation has occurred, the Committee
wishes to receive from the State party, within 180 days, information about the measures
taken to give effect to its Views. The State party is also requested to publish the present
Views.
[Adopted in English, French and Spanish, the French text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]
CCPR/C/101/D/1780/2008
16
GE.11-43115
Appendix
Individual opinion of Committee member Mr. Rafael Rivas Posada
(partially dissenting)
In paragraph 7.11 of its Views on Zarzi v. Algeria the Human Rights Committee
states that having adopted a decision on the violation of article 6 of the Covenant, read in
conjunction with article 2, paragraph 3, the Committee does not consider it necessary to
examine separately the complaints relating solely to article 6. In paragraph 7.10, however, it
states that since the victim Brahim Aouabdia did not enjoy the protection of the right to life
to which he was entitled by the State party, the latter directly violated article 6 of the
Covenant, read in conjunction with article 2, paragraph 3. Furthermore, in paragraph 8, the
Committee again finds a violation of article 6, to which it refers in the same terms.
I disagree with the Committee’s jurisprudence which leads to the conclusion that
cases of enforced disappearance should be qualified as direct violations of article 6 of the
Covenant in cases of enforced disappearance where the State party has not fulfilled its
obligation to protect the right to life of the individuals concerned and has not duly
investigated the circumstances of their disappearance but where there is no conclusive
evidence of the victim’s death. In my opinion, the interpretation of article 6 as applying
even to cases where there has not been deprivation of life is a misinterpretation that unduly
extends the scope of article 6. There is no doubt that there must be a connection between a
violation by the State party and the right to life, but not necessarily in order to conclude that
there has been a direct violation of this right if the death of the victim has not been proved.
For the above reason, I consider that paragraph 8 of the Committee’s decision
should have been worded as follows: “is of the view that the facts before it disclose
violations by the State party of article 2, paragraph 3, of the Covenant, read in conjunction
with article 6”, and not the wording “violations by the State party of article 6, read in
conjunction with article 2, paragraph 3” currently used by the Committee.
In all other respects I agree with the Committee’s Views.
(Signed) Mr. Rafael Rivas Posada
[Done in English, French and Spanish, the Spanish text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]
CCPR/C/101/D/1780/2008
GE.11-43115
17
Individual opinion of Committee member Mr. Fabián Omar Salvioli
(partially dissenting)
1.
I generally concur with the Committee’s decision in the case of Aouabdia v. Algeria
(communication No. 1780/2008). Nevertheless, in view of the arguments put forward in the
decision, I feel obliged to set out some thoughts on the violation of article 6 of the
International Covenant on Civil and Political Rights with regard to the enforced
disappearance of persons, elaborating on the partially dissenting opinion that I expressed in
the case of Benaziza v. Algeria (communication No. 1588/2007). I will also take this
opportunity to raise some issues relating to redress in cases where a legal norm is applied
that the Committee considers to be incompatible with the Covenant.
I.
Enforced disappearances and article 6 of the International Covenant on
Civil and Political Rights
2.
In my view, the Committee should have concluded that the State party was
responsible for a violation of article 6 of the International Covenant on Civil and Political
Rights in respect of Mr. Brahim Aouabdia without needing to refer, in this connection, to
article 2.
3.
In its general comment No. 6, the Committee says that States parties should take
specific and effective measures to prevent the disappearance of individuals and should
establish effective facilities and procedures to investigate thoroughly cases of missing and
disappeared persons in circumstances which may involve a violation of the right to life.24
These specific measures ought to consist not only of the application of effective legal
remedies in response to arbitrary detentions, but also, in light of the duty to guarantee the
right to life, of the prevention of any action by State agents that could result in enforced
disappearances.
4.
In the present case, the Committee has taken as proven a series of allegations made
by the author that have not been refuted or denied by the State party, namely that Brahim
Aouabdia was arrested at his workplace by police officers in uniform and taken away by
them in his own car, which was parked outside the police station and was even used by
police officers. The author was later officially informed in writing that Brahim Aouabdia
had been taken into police custody and subsequently transferred to the Territorial Centre for
Research and Investigation of military area No. 5, Constantine, on 13 July 1994.
5.
In cases such as this, where the responsibility of the State for the detention of the
victim has been demonstrated, the burden of proof regarding the guarantee to the right to
life rests with the State. Brahim Aouabdia is still missing 17 years later, and so it seems
logical to conclude, from the perspective of contemporary international law on the
protection of human rights, that the facts of the case as submitted reveal a violation of
article 6, paragraph 1, inasmuch as the State party failed to guarantee the right to life of
Brahim Aouabdia.
6.
I have already argued in my individual opinion in the case of Benaziza v. Algeria
that the duty to guarantee the rights established in the Covenant is referred to in three ways:
firstly, article 2, paragraph 1, establishes the duty to guarantee the rights of all persons
without distinction of any kind, thus embodying (obviously) the principle of non-
discrimination in the enjoyment of rights; secondly, article 2, paragraph 3, refers to the
24 General comment No. 6 (1982), para. 4.
CCPR/C/101/D/1780/2008
18
GE.11-43115
effective remedy to which all persons are entitled when any of their rights under the
Covenant are violated; and, thirdly, there is the duty to guarantee each right in itself.
7.
I must stress that there is no need for the provisions pertaining to each right
recognized in the Covenant to begin with a statement that it must be guaranteed by the
State. It would be absurd to say that the duty to guarantee those rights refers only to the
obligation to not discriminate or to the obligation to provide a remedy in the case of a
violation. The duty to guarantee, in itself, is not established in article 2, paragraph 2, of the
Covenant either. That paragraph refers to legislative or other measures to give effect to the
rights established in the Covenant and embodies the principles that human rights are self-
executing and have useful effect, both of which are intrinsically related to the general duty
to guarantee those rights but which do not fully characterize it.
8.
Logic dictates that there is a duty to guarantee all the rights established in the
Covenant for each person under a State party’s jurisdiction. This duty to guarantee is in
itself legally enshrined in the specific provision on each right established in the Covenant.
9.
Consequently, in the case at hand, article 6, paragraph 1, was violated because the
State party did not guarantee the right to life of Brahim Aouabdia; in no way does this
necessarily imply that the victim has died, as there is no evidence of this in the file. The
State party must restore the right and, consequently, take the necessary steps to ensure that
the victim is released if still alive, as the Committee rightly indicates in paragraph 9 of its
Views. In the meantime, the family must be allowed to file the pertinent civil action suits,
including those regarding succession- and assets-related matters arising from the enforced
disappearance of Brahim Aouabdia rather than from his presumed death.
II.
Redress in cases where a legal norm that is incompatible with the
Covenant is applied
10.
Since joining the Committee, I have been concerned about the need to be more
specific about redress in order to help States fulfil their obligations under the Covenant.
11.
In the present case, of Aouabdia v. Algeria, the Committee has rightly indicated that
the State party should not invoke the provisions of the Charter for Peace and National
Reconciliation against persons who invoke provisions of the Covenant or who have
submitted or may submit communications to the Committee. I am of the view that the
Committee should also have indicated that some of the provisions of the aforementioned
Charter are clearly incompatible with the Covenant, which constitutes a violation of article
2 of the Covenant read in conjunction with other provisions. Consequently, the Committee
should have clearly affirmed that redress must include the amendment by the State party of
the Charter for Peace and National Reconciliation, in fulfilment of its obligation to adopt
such legislative or other measures as may be necessary to give effect to the rights
recognized in the Covenant and to prevent a repetition of incidents like those which gave
rise to the communication under consideration. A decision of this nature undoubtedly falls
within the remit of the Committee, and aims both to improve the protection of individuals
and to give due effect to the provisions of the Covenant.
(Signed) Mr. Fabián Omar Salvioli
[Done in English, French and Spanish, the Spanish text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]