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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninetieth session, 3–12 May 2021

Opinion No. 7/2021 concerning Karim Tabbou (Algeria)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work,1 on 13 January 2021, the Working Group

transmitted to the Government of Algeria a communication concerning Karim Tabbou. The

Government replied to the communication on 22 February 2021. The State is a party to the

International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

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General Assembly

Distr.: General

29 July 2021

English

Original: French

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Submissions

Communication from the source

4.

Karim Tabbou is an Algerian national born in 1973. His place of residence is located

in the commune of Douera, in the city of Algiers. Mr. Tabbou works as an educational adviser

in a private school. In 1999, he was appointed First Secretary of the Front des forces

socialistes (Socialist Forces Front). He is also the founder and spokesperson of the Union

démocratique et sociale (Democratic Social Union), a currently unregistered political party.

a.

Arrest and detention

5.

The source indicates that, on 11 September 2019, at around 1 p.m., Mr. Tabbou was

arrested by agents of the Directorate General for Internal Security in front of his home.

According to the source, no warrant was presented at the time of the arrest. Mr. Tabbou was

taken to the Antar detention centre in Algiers, where he was held in police custody for 24

hours, without being able to exercise his rights to contact his lawyers in order to obtain legal

assistance or to challenge the legality of his detention in custody. The source clarifies that

Mr. Tabbou asked to contact his lawyer.

6.

The source indicates that, while in custody, Mr. Tabbou was questioned in conditions

that undermined his dignity, since he was insulted, physically assaulted and threatened.

7.

When his time in police custody ended on 12 September 2019, Mr. Tabbou was

brought before the public prosecutor at the Court of Kolea and charged with the offences of

“undertaking, by any means, to violate the integrity of the national territory” and “incitement

to action, by any means and by obstructing traffic, with a view to harming the national

defence”. The prosecutor requested that the investigating judge open a judicial investigation.

At this point, Mr. Tabbou was able to see his lawyer but was still not allowed to discuss his

case with him. These proceedings before the Court of Kolea constitute the first case.

8.

On the same day, the investigating judge of the first investigating chamber of the

Court of Kolea placed Mr. Tabbou in pretrial detention, pursuant to a detention warrant. This

warrant was appealed by Mr. Tabbou’s lawyers before the indictments chamber of the Court

of Tipaza.

9.

On 25 September 2019, following the appeal by Mr. Tabbou’s lawyers against the

detention warrant and after two requests for release had been rejected, Mr. Tabbou was

released under judicial supervision by the indictments chamber of the Court of Tipaza.

10.

The source explains that, although the indictments chamber of the Court of Tipaza

ordered Mr. Tabbou’s release, his liberty was subject to certain conditions under the judicial

supervision procedure, including a ban on participating in gatherings and making public

statements. Mr. Tabbou left Kolea prison on 25 September 2019.

11.

On 26 September 2019, less than 24 hours after his release, agents of the Directorate

General of Internal Security entered Mr. Tabbou’s home without showing an arrest warrant

and arrested him again. That same day, he was brought before the public prosecutor at the

Court of Sidi M’Hamed in Algiers, who charged him with “incitement to violent action with

the intention of harming the national defence”, under article 74 of the Criminal Code, and

“violating the integrity of the national territory by producing videos and disseminating them

on social networks”, under article 79 of the Criminal Code, and requested that a judicial

investigation be launched by an investigating judge. These proceedings constitute the second

case.

12.

The source explains that the two cases are based on the same facts, but that different

legal characterizations were applied in each case. According to the source, both sets of

proceedings concerned a public statement that Mr. Tabbou had made in the city of Kherrata

on 8 May 2019 during a commemoration of the events of 8 May 1945. In this statement, Mr.

Tabbou reportedly denounced the intervention of the army high command in politics and the

desperate living conditions of soldiers compared to those of army generals.

13.

On 26 September 2019, the investigating judge of the tenth chamber of the Court of

Sidi M’Hamed ordered that Mr. Tabbou be held in pretrial detention in Kolea prison. The

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investigating judge also postponed Mr. Tabbou’s hearing, reportedly because his lawyers

were not present.

14.

On the same day, Mr. Tabbou’s lawyers filed an appeal against the pretrial detention

order. However, on 2 December 2019, the indictments chamber of the Court of Algiers

rejected this appeal and upheld the detention order of 26 September 2019. On 20 January

2020, the investigating judge of the tenth chamber of the Court of Sidi M’Hamed ordered the

extension of Mr. Tabbou’s pretrial detention. His lawyers filed another appeal against this

order. On 29 January 2020, this appeal was denied and the extension order was upheld.

15.

On 23 January 2020, the investigating judge of the tenth chamber of the Court of Sidi

M’Hamed issued an order referring Mr. Tabbou to the criminal court for trial. The public

prosecutor appealed this order; however, on 12 February 2020, the indictments chamber of

the Court of Algiers rejected this appeal and upheld the referral order. At the same time, the

Court rejected the defence’s request that Mr. Tabbou be released on bail.

16.

Mr. Tabbou was tried by the criminal division of the Court of Sidi M’Hamed on 4

March 2020 and a ruling was handed down on 11 March 2020. He was found guilty of

violating national integrity and sentenced to 1 year’s imprisonment, with 6 months

suspended, and a fine of 50,000 Algerian dinars.

17.

In principle, Mr. Tabbou was due to leave prison on 26 March 2020, after serving the

non-suspended part of this sentence, i.e. 6 months’ imprisonment; however, the judgment

against him was challenged by the public prosecutor at the Court of Sidi M’Hamed and the

defence. On 25 March 2020, the Algiers Court of Appeal converted the suspended part of

Mr. Tabbou’s sentence into non-suspended imprisonment and sent him back to jail.

18.

The source argues that Mr. Tabbou’s lawyers were not informed of the date of the

appeal hearing by the judicial authorities until the morning of the hearing. Moreover, they

only learned of the hearing by chance, once it had already begun.

19.

According to the source, on the day of the hearing, Mr. Tabbou fainted when the judge

rejected his request that the trial be postponed owing to the absence of his defence counsel

and had to be taken to the infirmary. When his lawyers arrived, they asked the judge to

postpone the trial in view of their client’s state of health and to give them time to prepare.

They also noted that Mr. Tabbou’s case file did not contain a copy of the written judgment

of the trial at first instance, as required by law.

20.

This postponement request was rejected by the judge. As a result, Mr. Tabbou’s

lawyers decided to boycott the hearing, which was held in Mr. Tabbou’s absence, since he

was in the infirmary after having fainted. The Court of Appeal issued its ruling later that day,

in the absence of Mr. Tabbou and his lawyers; it upheld the contested judgment and increased

the original penalty, which was converted into a non-suspended sentence of 1 year’s

imprisonment.

21.

The first hearing on the first case was held on 23 March 2020, following which another

hearing was scheduled for 6 April 2020. On 6 April 2020, Mr. Tabbou was brought before

the Court of Kolea to be tried in relation to the first case; however, at the request of his

lawyers, the Court postponed Mr. Tabbou’s trial to 27 April 2020 on account of his state of

health and the public health emergency caused by the coronavirus disease (COVID-19)

pandemic. The trial was then postponed multiple times on 1 June, 29 June, 14 September, 26

October, 16 November and 30 November 2020.

22.

The source reports that Mr. Tabbou was held in solitary confinement for the duration

of his detention, without any legitimate justification, which constitutes cruel and degrading

treatment, according to the source.

23.

On 2 July 2020, Mr. Tabbou was released on bail by the fifth criminal chamber of the

Court of Algiers, pending his trial in the first case and his appeal on points of law against his

conviction in the second case.

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b.

Legal analysis

24.

According to the source, Mr. Tabbou’s arrest and detention are arbitrary in that they

constitute a violation of articles 9, 10, 11 and 19 of the Universal Declaration of Human

Rights and articles 9, 10, 14 (3) (b) and 19 of the Covenant.

25.

The source indicates that Mr. Tabbou’s right to liberty was violated, as were his rights

to be informed of the reasons for his arrest at the time of arrest, to be assisted by a lawyer

and to challenge the legality of his detention in police custody.

26.

The source also argues that Mr. Tabbou’s right to be treated with humanity and respect

for his human dignity was violated during his detention in the Antar detention centre of the

Directorate General of Internal Security, where he was subjected to insults, threats and

beatings. This violation also results from the fact that, during the appeal hearing before the

Algiers Court of Appeal on 25 March 2020, the presiding judge of the criminal chamber

refused to grant Mr. Tabbou time to prepare his defence, which caused him to faint.

27.

According to the source, Mr. Tabbou’s right to a fair trial was also violated, since he

was deprived of legal assistance during his time in police custody and during the appeal

hearing, when the presiding judge of the criminal chamber refused to postpone the trial even

though Mr. Tabbou’s lawyers had not been informed of the date of the hearing and despite

the fact that Mr. Tabbou was absent because he had fainted.

Response from the Government

28.

On 13 January 2021, the Working Group transmitted to the Government a

communication concerning Mr. Tabbou. The Working Group requested the Government to

provide detailed information about Mr. Tabbou by 15 March 2021 at the latest.

29.

The Government replied on 22 February 2021. In its response, it explains that

following the events that occurred in Algeria in February 2019, which had been marked by

popular demands against a potential fifth presidential term for Abdelaziz Bouteflika in what

is commonly referred to as the Hirak movement, Mr. Tabbou became an activist of this

protest movement, participating in various peaceful public marches, leading public meetings

and appearing on television programmes.

30.

In one of his public speeches, however, Mr. Tabbou made statements inciting

rebellion and civil disobedience against the institutions of the State, notably the national

army. This made his speech a criminal act.

31.

In three publicly available recordings, Mr. Tabbou can be heard making tendentious

statements directed at the National People’s Army, in which he attempted to turn popular

opinion against the latter. The most serious statements are those that he made during a

meeting in the town of Kherrata, at a commemoration of the events of 8 May 1945, in which

he incited young army officers to rebel against their superiors in order to bring about change

in their institution. The Government also refers to statements that Mr. Tabbou can be heard

making in an audiovisual recording of 17 May 2019, in which he addressed young soldiers

stationed at the border and attempted, by exacerbating their feelings through manipulation,

to convince them that they were the victims of injustice resulting from their superiors’

disregard for them, stating that: “I am speaking to our poor soldiers located at our Libyan and

Sahara borders who do not own a car or property … and who do not know swimming pools

…” The Government argues that these words amount to an unequivocal attempt to

deliberately destabilize the Army by generating mistrust between enlisted personnel and the

military hierarchy.

a.

The two trials

32.

According to the Government, a judicial inquiry was opened against Mr. Tabbou

which recorded, on the basis of a police report and corroborating evidence in the form of

video recordings, that offences had been committed. On 26 September 2019, Mr. Tabbou

was brought before the public prosecutor at the Court of Sidi M’Hamed, who initiated

proceedings against him and ordered the launch of a judicial investigation based on the

charges of “undertaking to harm the national defence” and “violating the integrity of the

national territory”, under articles 74 and 79 of the Criminal Code, respectively.

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33.

On the day he was brought before the public prosecutor, Mr. Tabbou had an initial

hearing before an investigating judge, who read out the charges against him and informed

him of his rights. After Mr. Tabbou’s statement had been entered into the record of the

hearing, the judge ordered that he be remanded in custody. At the close of the judicial

investigation, the investigating judge ordered that the defendant be brought before the

criminal court on 23 January 2020. This order was appealed by the public prosecution service

but upheld by the indictments chamber of the Court of Algiers in a decision of 12 February

2020.

34.

The case was brought before the Criminal Court of Sidi M’Hamed on 4 March 2020,

which handed down its judgment after deliberation on 11 March 2020, sentencing Mr Tabbou

to 1 year of imprisonment, with 6 months suspended, and a fine of 50,000 Algerian dinars

for the offence of undermining State security through the dissemination of subversive videos

but acquitting him of the charge of harming the national defence. The defendant and the

public prosecution service appealed this judgment and the case was consequently brought

before the criminal division of the Court of Algiers for a hearing on 24 March 2020. Ruling

on the appeal, the criminal division upheld the conviction of the court of first instance and

increased the penalty to a non-suspended sentence of 1 year’s imprisonment. The public

prosecution service and Mr. Tabbou’s defence counsel both lodged an appeal on points of

law with the Supreme Court. Pursuant to a decision of 2 July 2020, Mr. Tabbou was released

pending the Supreme Court’s ruling on this appeal.

35.

The Government indicates that Mr. Tabbou is involved in another set of proceedings

before the Court of Kolea (Court of Tipaza), the facts of which date back to March 2019,

when Mr. Tabbou publicly attacked the Algerian military, accusing the Chief of Staff and

senior army officers of being involved in corruption.

36.

The public prosecutor at the Court of Kolea initiated proceedings against Mr. Tabbou

and requested that a judicial investigation be opened based on the charges of “undertaking to

harm the national defence” and “violating the integrity of the national territory”, under

articles 74 and 79 of the Criminal Code, respectively. After holding a hearing with Mr.

Tabbou, the investigating judge ordered that he be placed in pretrial detention; however, Mr.

Tabbou appealed this order and the indictments chamber ordered his release.

37.

The Criminal Court of Kolea handed down its judgment on 7 December 2020,

acquitting Mr. Tabbou of the charge of harming the national defence but sentencing him to a

1 year suspended prison term and a fine of 100,000 Algerian dinars for the offence of

violating the integrity of the national territory. An appeal was lodged against this judgment

and the case was placed on the docket of the criminal division of the Court of Tipaza for a

hearing on 19 April 2021.

b.

Mr. Tabbou’s arrest

38.

The Government underlines that Mr. Tabbou has never been arrested for his political

activity. On the contrary, Mr. Tabbou had been active in the Algerian political scene for years

and had always been in opposition to the public authorities, without ever having been affected

by any restrictive measures. Freedom of opinion and pluralism are part of the daily life of

Algerians and have been elevated to the rank of constitutional rights, alongside freedom of

expression, assembly, association and movement.

39.

According to the Government, between March and August 2019, Mr. Tabbou

participated in a large number of public events in the context of the Algerian Hirak

movement, led public meetings and conferences and gave speeches. During one of these

activities, however, he deliberately attacked and defamed the Algerian military, and, on the

occasion of a commemoration of the events of 8 May 1945 in Kherrata, a town known for

having suffered colonial repression in the events of May 1945 that left thousands dead, he

incited young army officers to rise up and bring about a “Hirak” within the military. During

his judicial hearings, Mr. Tabbou did not deny giving this speech, a recording of which was

submitted as evidence in the proceedings. He is also accused of making other public

statements disseminated on social networks, in which he targeted and attempted to destabilize

the army, especially during a speech of 10 May 2019. Mr. Tabbou’s criminal prosecution is

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legally justified under the Criminal Code and Code of Criminal Procedure of Algeria, since

the statements he made constitute offences punishable by law.

40.

Mr. Tabbou’s arrest by the police was carried out under the strict supervision of the

public prosecution service and in full compliance with the provisions of the Code of Criminal

Procedure. Following his arrest on 26 September 2019 at 9.30 a.m., Mr. Tabbou was taken

to police premises, where he remained only for the duration of his hearing, which was held

on record. That same day, without having been detained in custody, Mr. Tabbou was brought

before the public prosecutor, who requested that a judicial investigation be opened against

him and referred his case to an investigating judge, who, in turn, ordered that Mr. Tabbou be

placed in pretrial detention. As Mr. Tabbou’s arrest was not followed by time in police

custody, there was no need to apply the provisions of the Code of Criminal Procedure relating

to safeguards during police custody.

41.

In the context of the allegations raised in this case, neither Mr. Tabbou nor his lawyers

reported to the judges any ill-treatment or breach of time limits during the preliminary

investigation.

c.

Compliance of the trial with international standards

42.

Mr. Tabbou’s two trials, at first instance and on appeal, complied with international

standards on criminal proceedings, since all his rights under the Constitution and the Code

of Criminal Procedure were respected and scrupulously upheld by the various judges who

dealt with his case.

43.

The Government asserts that there were no procedural defects in the judicial

investigation stage, since neither Mr. Tabbou nor his lawyers reported any such irregularities.

All 55 lawyers who pleaded on Mr. Tabbou’s behalf had access to the proceedings, which

allowed them to assist their client at every round of questioning. No action to have the

proceedings set aside was filed or brought before the courts that heard the case. Furthermore,

the investigating judge closed his investigation without having exhausted the full period of

pretrial detention permitted by law.

44.

The trial was held just after the close of the investigation, as the case had been

registered within the time limit set by law, which establishes a period of one month for the

registration of cases of detainees referred for trial. Once the investigating judge’s referral

order of 23 January 2020 had been confirmed by the indictments chamber on 12 February

2020, a hearing was set for 4 March 2020; however, this hearing was postponed to 11 March

2020 by the judge at the request of Mr Tabbou’s lawyers. All procedural rules were respected

during the proceedings. A public hearing was held, during which the judge notified the

defendant of the allegations and charges against him in the presence of his lawyers, all of

whom took the floor after their client had been heard. The lawyers invoked 13 defences, all

of which were responded to by the court in the reasoning attached to its judgment. The public

prosecutor requested that Mr. Tabbou be sentenced to 4 years’ imprisonment, but the court

sentenced him to 1 year’s imprisonment, with 6 months suspended. This judgment was

appealed by both parties.

45.

The Government reports that the appeal was registered with the Court of Algiers in

full compliance with article 429 of the Code of Criminal Procedure, which sets the maximum

time limit for registering the appeals of detainees at two months from the date of the

submission of the appeal. Mr. Tabbou’s appeal trial, held on 24 March 2020, coincided with

the spread of the COVID-19 pandemic, which severely disrupted the judicial system. It was

important to protect the health of the detainees called to court and that of the police and prison

officers who accompanied them during transport by avoiding unjustified return trips. Trial

court judges therefore systematically refused unjustified requests for the postponement of

trials, such as that submitted in relation to Mr. Tabbou’s appeal.

46.

The judges of the criminal division determined the postponement of the hearing to be

unjustified, since the defendant and his lawyers were present and his lawyers had full

knowledge of the case from the beginning. Mr. Tabbou, when questioned by the presiding

judge, pretended to faint in order to force the postponement of the hearing; this clearly

displeased the court, which immediately called in a doctor to assess his state of health. At

that moment, the trial proceedings were already well under way, with the judges having

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begun their examination, and the court decided that the hearing could not be postponed. Mr.

Tabbou refused to return to the courtroom. Article 347 of the Code of Criminal Procedure

allows judges to try cases adversarily even if the defendants refuse to resume the hearing.

Mr. Tabbou’s lawyers were present at the hearing and even made requests, which the court

determined to be unfounded. At the end of the hearing, the criminal division delivered its

ruling in open court, upholding the conviction and increasing the sentence to 1 year’s

imprisonment, although the prosecution had requested the same sentence as at first instance,

namely 4 years’ imprisonment and a fine of 100,000 Algerian dinars.

d.

Detention conditions

47.

The Government notes that Mr. Tabbou enjoyed all the rights due to him as a remand

prisoner, to the extent that he was able to lodge an appeal with the Supreme Court. He was

not subjected to ill-treatment during his detention, as evidenced by the fact that no complaint

in that regard was filed by him or his lawyers.

48.

According to the Government, Mr. Tabbou was visited every fortnight by members

of his family, in accordance with the law on the organization of prisons. Since his

imprisonment began, he received daily visits from his lawyers, except on Fridays, which are

part of the weekend in Algeria. Mr. Tabbou was fed properly like other detainees and was

given time for recreation and reading. He was not held in solitary confinement, as evidenced

by the fact that his lawyers visited him every morning and every evening. Solitary

confinement is a disciplinary measure provided for by law that is used on prisoners who do

not comply with detention rules.

49.

Furthermore, the administration of Kolea prison scrupulously monitored Mr.

Tabbou’s health. He received regular visits from various medical personnel, just like all other

detainees. Mr. Tabbou was also the subject of specific medical examinations, notably after

he pretended to faint at the hearing of 24 March 2020 before the Court of Algiers. He

underwent a series of medical examinations by three professors in the department of

cardiology and internal medicine. These examinations did not reveal any abnormalities of

concern, as shown in the resulting medical reports. Mr. Tabbou was released on 2 July 2020.

Additional comments from the source

50.

The source refutes the Government’s version of the events, claiming that it dishonestly

interprets Mr. Tabbou’s statement on the living conditions of Algerian soldiers, which is

protected under his right to free expression on the conduct of public affairs. Article 19 of the

Covenant protects the right to peacefully criticize the legitimacy of leaders and institutions,

including the military and its directors. The Human Rights Committee has stated that States

parties should not prohibit criticism of institutions, such as the army or the administration.2

Mr. Tabbou never incited or called for a rebellion within the army; he expressed his

understanding of, and appealed to political leaders to improve, the living conditions of

ordinary soldiers stationed at the Algerian border. Such is the role of the leader of a political

party.

51.

The Government has not proved that Mr. Tabbou’s conviction complied with article

19 (3) of the Covenant by demonstrating that it met the strict criteria of necessity and

proportionality, even though it justified his detention on the legal basis of articles 74 and 79

of the Criminal Code.

52.

The source reiterates that Mr. Tabbou’s right to be informed of the reasons for his

arrest at the time of arrest was violated. His rights to contact his lawyer while in police

custody and to take proceedings before a court so that it might decide without delay on the

lawfulness of his detention were also violated. While in custody at the Directorate General

for Internal Security’s Antar detention centre, Mr. Tabbou was physically assaulted,

including by being punched in the face and stomach while handcuffed. Despite the fact that

Mr. Tabbou reported these acts of torture at his hearing before the court of first instance, in

2 Human Rights Committee, general comment No. 34 (2011), para. 38.

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the presence of the public prosecutor, the Government did not initiate an impartial and prompt

investigation.

53.

The source recalls that on 25 March 2020, the day before Mr. Tabbou was due to be

released, prison officials informed him that he would be tried on appeal and brought him

before the Algiers Court of Appeal. He was thus informed of the hearing on the day it took it

place and thereby deprived of his right to sufficient time to prepare his defence on appeal. In

its reply, the Government did not present evidence that it had notified Mr. Tabbou of the date

of the hearing well in advance of the day of the trial.

54.

When his request to be given time to prepare his defence and the chance to put an end

to his imprisonment was denied, Mr. Tabbou felt struck by such a grave injustice that he

collapsed to the floor. He was taken to a clinic for treatment and examination. In its reply,

the Government alleges that Mr. Tabbou pretended to faint, but it has not provided any proof

of this, since only the governmental prison administration has access to his medical file. Mr.

Tabbou was held in solitary confinement for the duration of his imprisonment. His lawyers

tried to end this confinement by means of regular, but not daily, visits, contrary to the claims

of the Government, which, moreover, has not provided proof of these alleged daily visits,

since only the prison administration has access to the visitors’ register.

55.

The source confirms that Mr. Tabbou was provisionally released on 2 July 2020,

pending a ruling on his appeal on points of law before the Supreme Court.

Discussion

56.

The Working Group thanks both parties for their cooperation.

57.

At the outset, the Working Group considers it important to clarify that the present case

relates to two criminal proceedings against Mr. Tabbou:

(a)

The first proceedings relate to the allegation that Mr. Tabbou publicly attacked

the Algerian army in March 2019 by accusing senior officers of being involved in corruption,

in violation of articles 74 and 79 of the Criminal Code. According to the source, Mr. Tabbou

was arrested in relation to this matter on 11 September 2019 but was released under judicial

supervision on 25 September 2019. The Government states that on 7 December 2020, Mr.

Tabbou was sentenced to 1 year of suspended imprisonment and a fine of 100,000 Algerian

dinars for attacking the integrity of the national territory. An appeal was filed by the

prosecution and the case was scheduled for a hearing on 19 April 2021.3

(b)

The second proceedings relate to the allegation that Mr. Tabbou made a public

statement on 8 May 2019 in the city of Kherrata which was allegedly intended to incite young

army officers to rebel, thus destabilizing the military in violation of articles 74 and 79 of the

Criminal Code. Mr. Tabbou had denounced the poor living conditions of soldiers compared

with those of senior officers. On 11 March 2020, Mr. Tabbou was sentenced to 1 year of

imprisonment, with 6 months suspended, and a fine of 50,000 Algerian dinars. On appeal,

this was converted to a non-suspended sentence of one year of imprisonment. The public

prosecution service and the defence counsel both lodged an appeal on points of law with the

Supreme Court. Mr. Tabbou was released on 2 July 2020 pending a decision on the appeal

on points of law.

58.

As a further preliminary matter, the Working Group welcomes the release of Mr.

Tabbou from detention on 2 July 2020 pending a ruling on the appeal on points of law. Under

paragraph 17 (a) of its methods of work, the Working Group may render an opinion

notwithstanding the release of the person concerned. Mr. Tabbou appears to remain at risk of

being detained again in relation to both sets of proceedings, depending on the outcome of the

appeals. Moreover, Mr. Tabbou was allegedly subjected to serious violations of his human

rights. In these circumstances, the Working Group has decided to render the present opinion.

59.

In determining whether the detention of Mr. Tabbou was arbitrary, the Working Group

has regard to the principles established in its jurisprudence to deal with evidentiary issues. If

the source has presented a prima facie case for breach of the international law constituting

3 The Working Group has not received further information on the outcome of this appeal.

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arbitrary detention, the burden of proof should be understood to rest upon the Government if

it wishes to refute the allegations. Mere assertions by the Government that lawful procedures

have been followed are not sufficient to rebut the source’s allegations.4

60.

In the present case, the Working Group notes the Government’s submissions that the

proceedings against Mr. Tabbou were in full compliance with Algerian law, including the

Criminal Code and Code of Criminal Procedure. Nevertheless, even when detention is carried

out in conformity with national legislation, the Working Group must assess whether the

application of the legislation was consistent with international human rights law.5

Category I

61.

The source alleges that Mr. Tabbou was arrested in relation to the first proceedings

on 11 September 2019. According to the source, agents of the Directorate General for Internal

Security arrested Mr. Tabbou in front of his home and did not present an arrest warrant.

Moreover, the source alleges that when Mr. Tabbou was again arrested at his home by agents

of the Directorate General for Internal Security on 26 September 2019 in relation to the

second proceedings, no arrest warrant was presented. The source states that Mr. Tabbou’s

right to be informed of the reasons for his arrest was also violated.

62.

In its response, the Government did not refer to any initial period of detention of Mr.

Tabbou between 11 and 25 September 2019 and did not address the alleged failure to present

a warrant during both arrests. In relation to the second proceedings, the Government noted

that when Mr. Tabbou was brought before a judge on 26 September 2019, he was informed

of the accusations and charges against him. The Working Group notes, however, that being

informed about the charges during a court hearing is not the same as being informed of the

reasons for arrest at the time of the arrest.

63.

According to article 9 (1) of the Covenant, no one shall be deprived of liberty except

on such grounds and in accordance with such procedure as are established by law. In the

present case, Mr. Tabbou was arrested at his home on both occasions, several months after

reportedly making public statements in March and May 2019. It appears that the arrests were

not carried out in flagrante delicto, which might have obviated the need for arrest warrants.6

Accordingly, the Working Group considers that the source has provided credible evidence,

which was not rebutted by the Government, that Mr. Tabbou was arrested on two occasions

without an arrest warrant, in violation of article 9 (1) of the Covenant.7

64.

Article 9 (2) of the Covenant provides that anyone who is arrested shall be informed,

at the time of arrest, of the reasons for the arrest. In the absence of information from the

Government to the contrary, the Working Group finds that Mr. Tabbou was not informed of

the reasons for his arrest when he was arrested on either occasion, in violation of article 9 (2)

of the Covenant. An arrest is arbitrary when it is carried out without informing the arrested

person of the reasons for the arrest.8

65.

The source further alleges that Mr. Tabbou was not afforded his right to challenge the

legality of his detention during his placement in police custody. According to the source,

following his first arrest on 11 September 2019, Mr. Tabbou was placed in police custody

for 24 hours in the first proceedings. On 12 September 2019, Mr. Tabbou was brought before

the prosecutor to be charged and then before a judge of the Court of Kolea, who ordered his

remand in pretrial detention. In relation to the second proceedings, Mr. Tabbou was arrested

on 26 September 2019 and was brought, that same day, before a judge in the Court of Sidi

M’Hamed, who ordered his remand in pretrial detention. He was not held in police custody

prior to his pretrial detention in the second proceedings.

66.

As the Human Rights Committee has stated, 48 hours is ordinarily sufficient to satisfy

the requirement under article 9 (3) of the Covenant of bringing a detainee “promptly” before

a judge following his or her arrest; any longer delay must remain absolutely exceptional and

4 A/HRC/19/57, para. 68.

5 Opinions No. 5/2020, para. 71, and No. 65/2020, para. 70.

6 Opinion No. 9/2018, para. 38.

7 See opinions No. 46/2018, No. 44/2019 and No. 45/2019.

8 Opinions No. 16/2020, para. 60, and No. 46/2020, para. 40.

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be justified under the circumstances.9 Moreover, the right to bring proceedings before a court

to determine the lawfulness of detention under article 9 (4) of the Covenant applies in

principle from the moment of arrest and any substantial waiting period before a detainee can

bring a first challenge to detention is impermissible.10 The Working Group is unable to agree

with the source’s submission that Mr. Tabbou’s rights under article 9 (3) and (4) of the

Covenant were violated. In both sets of proceedings, he was brought before a court to contest

the legality of his detention, and this occurred within the time frames required by the

Covenant.

67.

The Working Group finds that an arrest warrant was not presented and no reasons for

the arrests were given to Mr. Tabbou in relation to both sets of proceedings against him. As

a result, his detention was arbitrary under category I.

Category II

68.

The source alleges that Mr. Tabbou was detained as a result of exercising his right to

freedom of opinion and expression under article 19 of the Universal Declaration of Human

Rights and article 19 of the Covenant. According to the source, both sets of proceedings

against Mr. Tabbou are based on a public statement that he made in the city of Kherrata on 8

May 2019 during a commemoration of the events of 8 May 1945. Mr. Tabbou denounced the

intervention of the army high command in politics in Algeria and the difficult living

conditions of soldiers compared to those of senior officers within the military.

69.

In its response, the Government refers to the first proceedings brought against Mr.

Tabbou before the Court of Kolea for a statement made in March 2019 in which he allegedly

attacked the Algerian military, accusing the Chief of Staff and senior officers of involvement

in corruption. The Government insists that Mr. Tabbou’s statement violated articles 74 and

79 of the Criminal Code, noting that Mr. Tabbou never denied making such statements. The

source did not refer to any statements by Mr. Tabbou involving corruption in the army.

70.

Furthermore, the Government states that the prosecution of Mr. Tabbou in the second

proceedings was based upon statements that he made on 8 May 2019 in Kherrata that were

intended to incite and destabilize the army, as well as other statements made by Mr. Tabbou

on 17 May 2019. According to the Government, on 17 May 2019, Mr. Tabbou addressed

young soldiers stationed at the borders in an audiovisual recording, emphasizing the

injustices that they face by stating that: “I am speaking to our poor soldiers located at our

Libyan and Sahara borders who do not own a car or property … and who do not know

swimming pools …”. The Government insists that these words amounted to an unequivocal

attempt by Mr. Tabbou to deliberately destabilize the army by generating mistrust between

enlisted personnel and the military hierarchy.

71.

Article 19 (2) of the Covenant provides that everyone has the right to freedom of

expression. This right includes political discourse, commentary on public affairs and

discussion of human rights, and protects all forms of audiovisual modes of expression.11 It

protects the holding and expression of opinions, including those which are critical of, or not

in line with, government policy.12 States parties should not prohibit criticism of institutions,

such as the army.13

72.

Accordingly, the Working Group considers that Mr. Tabbou’s conduct, namely his

statements concerning corruption in the military and the living conditions of soldiers, were

protected by his right to freedom of opinion and expression under article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant, and that Mr. Tabbou was

detained for peacefully exercising this right. Mr. Tabbou is the founder and spokesperson for

the Union démocratique et sociale, as well as a prominent opposition figure in the Hirak

9 Human Rights Committee, general comment No. 35 (2014), para. 33.

10 Ibid, para. 42; see also the United Nations Basic Principles and Guidelines on Remedies and

Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court

(A/HRC/30/37, annex), in particular principle 7 and guideline 7.

11 Human Rights Committee, general comment No. 34, paras. 11 and 12.

12 Opinions No. 15/2020, para. 65, and No. 16/2020, para. 68.

13 Human Rights Committee, general comment No. 34, para. 38.

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movement. The Working Group has determined on several occasions that leaders of political

parties and other prominent figures who peacefully criticized the military had done so in the

legitimate exercise of their right to freedom of expression under international human rights

law.14

73.

Furthermore, the actions taken against Mr. Tabbou suggest that he was detained not

only as a result of exercising his freedom of expression but also to prevent him from

continuing to do so. The Working Group refers to the source’s allegation, unchallenged by

the Government, that Mr. Tabbou was released on 25 September 2019 in relation to the first

proceedings on condition that he would not participate in gatherings or make public

statements. According to the source, Mr. Tabbou was arrested again on 26 September 2019

in relation to the second proceedings, less than 24 hours after his release. In the absence of

an alternative explanation from the Government, the rearrest of Mr. Tabbou suggests that the

authorities were determined to keep him in detention. Moreover, Mr. Tabbou was due to be

released on 26 March 2020 after serving his sentence of 1 year of imprisonment, with 6

months suspended, in the second proceedings. However, on the eve of his release, this penalty

was converted on appeal to a non-suspended sentence of 1 year of imprisonment, effectively

doubling the sentence imposed at first instance and ensuring that he remained in prison.

74.

In addition, the Working Group considers that Mr. Tabbou was prosecuted because of

the statements that he made as the leader of a political party on matters of public interest

concerning the military. Mr. Tabbou was detained for exercising his right to take part in the

conduct of public affairs under article 21 (1) of the Universal Declaration of Human Rights

and article 25 (a) of the Covenant.15

75.

There is nothing to suggest that the permissible restrictions in articles 19 (3) and 25

of the Covenant apply in the present case. The Working Group is not convinced that

prosecuting Mr. Tabbou was necessary to protect a legitimate interest within the meaning of

these provisions, nor that his detention and the sentences imposed were proportionate to his

activities. The Working Group takes note of the Government’s submission that the appeal

court in the second proceedings did not grant the prosecution’s request to sentence Mr.

Tabbou to 4 years’ imprisonment. However, the Government has not demonstrated that the

sentence that was imposed on appeal, namely the conversion of the suspended sentence to a

non-suspended sentence of 1 year of imprisonment, was a proportionate response to Mr.

Tabbou’s peaceful statements on matters of public interest.

76.

Importantly, there is no evidence to suggest that Mr. Tabbou’s criticism of the military

called directly or indirectly for violence, or represented a threat to national security or public

order, health or morals. Mr. Tabbou’s statements may have resulted in discontent among

army officers and may have even provoked change within the military to address issues such

as corruption and improvements in living conditions. However, the Working Group does not

consider that the statements relating to the living conditions of soldiers were directed to any

matter concerning the location of the soldiers or the nature of their deployment, and therefore

they did not affect any matters of national security. Moreover, while Mr. Tabbou’s comments

were made on important occasions such as the 8 May 1945 commemoration, the Working

Group considers that his statements did not incite rebellion or seek to destabilize the military,

and did not pose a threat that would justify the restriction of his rights. Any other

interpretation would have a significant chilling effect on those who peacefully criticize or

challenge institutions such as the military and its management as part of democratic

discourse.16

77.

Notably, the Government does not claim that the restriction of Mr. Tabbou’s freedom

of expression was necessary for the respect of the rights or reputations of others, in

accordance with article 19 (3) of the Covenant. While Mr. Tabbou’s alleged statement in

March 2019 in relation to corruption appears to refer specifically to the Chief of Staff, there

is no suggestion by the Government that this statement defamed any individual. In any event,

14 See opinions No. 4/2019 and No. 37/2020.

15 Human Rights Committee, general comment No. 25 (1996), para. 8. See also opinions No. 36/2020

and No. 42/2020.

16 CCPR/C/DZA/CO/4, paras. 43–44.

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the remedy for defamation lies in a civil action for defamation. Imprisonment is never an

appropriate penalty for defamation and is never compatible with freedom of expression.17

78.

The Working Group concludes that Mr. Tabbou’s detention resulted from the peaceful

exercise of his rights to freedom of opinion and expression and to take part in the conduct of

public affairs, contrary to articles 19 and 21 (1) of the Universal Declaration of Human Rights

and articles 19 and 25 (a) of the Covenant. As a result, his detention was arbitrary under

category II. The Working Group refers this case to the Special Rapporteur on the promotion

and protection of the right to freedom of opinion and expression.

79.

The principle of legality requires that laws be formulated with sufficient precision so

that the individual can access and understand the law and regulate his or her conduct

accordingly.18 In its response, the Government provided an extract of articles 74 and 79 of

the Algerian Criminal Code. Article 74 penalizes conduct undertaken “with a view to

harming the national defence”, while article 79 penalizes conduct that “violates the integrity

of the national territory”. These provisions lack sufficient detail and may, as in the present

case, proscribe the peaceful exercise of rights. The application of such vague and overly

broad provisions to Mr. Tabbou’s conduct adds weight to the Working Group’s conclusion

that his detention is arbitrary under category II.

Category III

80.

Given its finding that the detention of Mr. Tabbou was arbitrary under category II, the

Working Group emphasizes that no trial should have taken place.

81.

The source alleges that Mr. Tabbou was held in police custody for 24 hours on 11

September 2019 without being allowed to contact his lawyers, despite the fact that he

requested to do so. Mr. Tabbou was only allowed to see his lawyer when he was presented

to the prosecutor on 12 September 2019, though he was not able to discuss his case at that

time. The Government notes that neither Mr. Tabbou nor his lawyers raised any procedural

violations even though they had the right to do so under the Code of Criminal Procedure.

82.

All persons deprived of their liberty have the right to legal assistance by counsel of

their choice at any time during their detention, including immediately after their

apprehension, and such access is to be provided without delay.19 The failure to allow Mr.

Tabbou to contact his lawyers during police custody violated his right to communicate with

counsel of his choosing under article 14 (3) (b) of the Covenant.

83.

In addition, the source alleges that the authorities violated Mr. Tabbou’s right to be

treated with humanity and respect for his human dignity during his police custody at the

Antar detention centre in Algiers. According to the source, Mr. Tabbou was subjected to

insults, threats and physical violence, including punches to his face and stomach, during this

period. The Government states that Mr. Tabbou was never subjected to ill-treatment during

his detention, noting that neither Mr. Tabbou nor his lawyers complained of such treatment.

In its further comments, the source maintains that Mr. Tabbou experienced physical abuse

during police custody, and that he reported it to the court of first instance in the presence of

the prosecution. The authorities did not investigate the allegations.

84.

The Working Group considers that the source has presented a credible prima facie

case, which was not rebutted by the Government, that Mr. Tabbou was subjected to physical

abuse, threats and insults while in police custody that were not investigated by the authorities.

This alleged treatment appears to violate article 5 of the Universal Declaration of Human

Rights, article 7 of the Covenant and articles 2 and 16 of the Convention against Torture, to

which Algeria is a State party. The Working Group refers this case to the Special Rapporteur

on torture and other cruel, inhuman or degrading treatment or punishment.

85.

In addition, the Working Group considers that the failure by the court of first instance

to order an investigation into Mr. Tabbou’s complaints constituted a violation of his right to

17 Human Rights Committee, general comment No. 34, para. 47, and opinion No. 37/2020, para. 56.

18 Opinion No. 41/2017, paras. 98–101.

19 A/HRC/30/37, annex, principle 9 and guideline 8, and A/HRC/45/16, para. 53. See also

CCPR/C/DZA/CO/4, paras. 36 (d).

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13

be tried by an independent and impartial tribunal under article 10 of the Universal Declaration

of Human Rights and article 14 (1)20 of the Covenant, and of articles 12, 13 and 14 of the

Convention against Torture. The prosecution was also obliged to investigate Mr. Tabbou’s

complaint in keeping with its duty under principle 12 of the Guidelines on the Role of

Prosecutors to protect human dignity and uphold human rights.21 The Working Group refers

this case to the Special Rapporteur on the independence of judges and lawyers.

86.

Furthermore, the first proceedings were postponed on at least eight occasions,

resulting in a judgment only being delivered on 7 December 2020, some 15 months after Mr.

Tabbou’s arrest.22 The matter has not yet been finally determined as it is the subject of an

appeal. The Working Group considers that Mr. Tabbou, who should not have been prosecuted

for the exercise of his freedom of expression, has been denied his right to trial without undue

delay under article 14 (3) (c) of the Covenant.23

87.

Finally, the source alleges that Mr. Tabbou was due for release from detention on 26

March 2020 in relation to the second proceedings. However, on 25 March 2020, his initial

sentence was converted on appeal to 1 year of imprisonment. Mr. Tabbou was not informed

of the date on which the appeal would take place until the morning of the hearing and his

lawyers only learned of the hearing by chance once it had already commenced. Mr. Tabbou

fainted after the judge rejected his request to postpone the hearing because of the absence of

his lawyers and was taken to the infirmary. His lawyers asked the judge to postpone the

hearing so that they would have time to prepare. However, the court announced its decision

later that day without the presence of Mr. Tabbou, who was in the infirmary, and without his

lawyers, who boycotted the hearing. The source further alleges that the file did not contain a

copy of the written judgment of the trial at first instance.

88.

In its response, the Government recalls that the proceedings took place during the

COVID-19 pandemic. In order to preserve the health of detainees and prison staff who

escorted them to court hearings, it was important for the courts not to accept unjustified

requests to postpone hearings. In Mr. Tabbou’s case, the court considered that postponing

the appeal hearing was unnecessary because the accused was present and his lawyers were

informed of the case since its inception. The Government claims that Mr. Tabbou pretended

to suffer from a medical issue in order to force the adjournment of the appeal. Given that the

proceedings had commenced, the court decided not to postpone the hearing. The court was

entitled under the Code of Criminal Procedure to deliver its judgment if the defendant refused

to return to the court. According to the Government, Mr. Tabbou’s lawyers were present at

the appeal hearing.

89.

Having considered the submissions of both parties, the Working Group considers that

Mr. Tabbou’s rights were violated before and during this appeal hearing. The Government

did not demonstrate that Mr. Tabbou was given sufficient notice of the appeal hearing, in

violation of his right to have adequate time for the preparation of his defence, to be tried in

his presence and to defend himself though legal counsel of his choosing under article 14 (3)

(b) and (d) of the Covenant. He was also denied his right to seek a review of his conviction

and sentence under article 14 (5) of the Covenant because of the lack of notice of the hearing,

the absence of his lawyers and the lack of a written judgment of the court of first instance.24

90.

The Working Group concludes that these violations of Mr. Tabbou’s right to a fair

trial were of such gravity as to give his detention an arbitrary character under category III.

20 Opinions No. 31/2020, para. 56, and No. 61/2020, para. 88.

21 Opinion No. 63/2020, para. 42.

22 The matter was postponed on 6 April 2020 at the request of Mr. Tabbou’s lawyers because of his state

of health and the COVID-19 pandemic, but there is no indication why the other hearings were

delayed. See deliberation No. 11 of the Working Group (A/HRC/45/16, annex II), paras. 20–21.

23 Opinion No. 15/2020, para. 71, and No. 16/2020, para. 77.

24 Human Rights Committee, general comment No. 32 (2007), para. 49, and opinion No. 83/2019, para.

76.

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Category V

91.

Finally, the Working Group considers that there are several elements that suggest that

Mr. Tabbou was targeted by the authorities for having expressed his views on the Algerian

military, including his rearrest, the two proceedings against him, as well as the conversion of

his sentence on the eve of his release, which effectively doubled his initial sentence.

Accordingly, the Working Group considers that Mr. Tabbou was deprived of his liberty on

discriminatory grounds, that is, on the basis of his political or other opinions. His detention

violated articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and

26 of the Covenant and was therefore arbitrary according to category V.

Concluding remarks

92.

According to the source, Mr. Tabbou was held in solitary confinement throughout his

detention, which lasted for over nine months between September 2019 and July 2020. The

Government denies this allegation, noting that Mr. Tabbou’s lawyers visited him on a daily

basis.

93.

The Working Group recalls that prolonged solitary confinement exceeding 15

consecutive days violates international standards, such as rules 43 to 45 of the United Nations

Standard Minimum Rules for the Treatment of Prisoners.

94.

The Working Group would welcome an invitation from the Government to undertake

its first country visit to Algeria so that it can work constructively with the authorities in

addressing serious concerns relating to arbitrary deprivation of liberty.

Disposition

95.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Karim Tabbou, being in contravention of articles 2, 5, 7,

9, 10, 11 (1), 19 and 21 (1) of the Universal Declaration of Human Rights and articles

2 (1), 7, 9, 14, 19, 25 (a) and 26 of the International Covenant on Civil and Political

Rights, is arbitrary and falls within categories I, II, III and V.

96.

The Working Group requests the Government of Algeria to take the steps necessary

to remedy the situation of Mr. Tabbou without delay and bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the Covenant.

97.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord Mr. Tabbou an enforceable right to

compensation and other reparations, in accordance with international law.

98.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Tabbou and to take appropriate measures against those responsible for the violation of his

rights.

99.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression, the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment and the Special Rapporteur on the

independence of judges and lawyers, for appropriate action.

100.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

101.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether compensation or other reparations have been made to Mr. Tabbou;

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15

(b)

Whether an investigation has been conducted into the violation of Mr.

Tabbou’s rights and, if so, the outcome of the investigation;

(c)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Algeria with its international obligations in line with the

present opinion;

(d)

Whether any other action has been taken to implement the present opinion.

102.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

103.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

104.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.25

[Adopted on 4 May 2021]

25 See Human Rights Council resolution 42/22, paras. 3 and 7.