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GE.23-08053 (E) 131223 141223

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-sixth session, 27 March–5 April 2023

Opinion No. 4/2023 concerning Hamid Soudad (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 51/8.

2.

In accordance with its methods of work,1 on 1 December 2023 the Working Group

transmitted to the Government of Algeria a communication concerning Hamid Soudad. The

Government replied to the communication on 25 January 2023. 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

A/HRC/WGAD/2023/4

General Assembly

Distr.: General

10 May 2023

English

Original: French

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Submissions

Communication from the source

4.

Hamid Soudad, born on 28 March 1978 in Boghni, Algeria, is a poultry farmer of

Algerian nationality. He habitually resides in the village of Ayayda, in the municipality of

Aïn El Bia, wilaya of Oran, Algeria.

5.

The source notes that Mr. Soudad converted to Christianity 20 years ago and joined

the Protestant Church.

6.

According to the source, on 6 June 2018, Mr. Soudad shared a caricature on his social

media page that had already been posted by others on social media and by some newspapers.

The caricature read: “Abou Lahab asked the Prophet Mohammed whether the little girl in the

stroller was his granddaughter. He replied that she was his wife, Aisha.”

a.

Arrest and detention

7.

In January 2021, Mr. Soudad received a summons from the gendarmerie, requesting

him to report to the station in Aïn El Bia, with no mention of the reasons for the summons.

8.

According to the source, Mr. Soudad reported to the gendarmerie station of the

municipality of Aïn El Bia on 19 January 2021. That same day, he was placed in police

custody by the investigative police officer, without being told the reasons for his arrest. The

source notes that no arrest warrant was issued by the judicial authorities and that Mr. Soudad

was questioned while in custody without being informed of his right to counsel or his right

to remain silent. Mr. Soudad was allegedly denied the right to assistance from a lawyer and,

through psychological pressure, was forced to incriminate himself and to sign the report of

the interview in which he confessed. The source notes that Mr. Soudad retracted his

confession during his trial.

9.

Mr. Soudad was allegedly held in police custody at gendarmerie facilities from 19 to

21 January 2021.

10.

The source recounts that Mr. Soudad was brought before the public prosecutor of the

Criminal Court of Arzew on 21 January 2021. The public prosecutor questioned him without

a lawyer present and informed him verbally of the charges against him. According to the

source, Mr. Soudad was accused of “affront to the Prophet Mohammed” and “denigrating

Islamic dogma and precepts” under article 144 bis (2) of the Criminal Code.

11.

The source states that the public prosecutor ordered Mr. Soudad returned to the

Criminal Court of Arzew for a same-day immediate summary trial. According to the source,

Mr. Soudad was tried that same day, without being afforded the opportunity to see his file or

sufficiently prepare his defence. Mr. Soudad was permitted assistance from a lawyer for the

first time at his trial. At the trial, Mr. Soudad denied intending to harm anyone by sharing the

caricature and pleaded not guilty.

12.

According to the source, the trial was public and the atmosphere in the courtroom was

intimidating towards Mr. Soudad, as a Christian who had “offended the Prophet

Mohammed”, and towards his lawyer for urging clemency for her client due to the hostile

atmosphere in the room. The source relates that the court was not impartial towards

Mr. Soudad, as he was denied the opportunity to fully answer questions and to give his

versions of events. In addition, the source notes that the judge repeatedly brought up

Mr. Soudad’s conversion to Christianity. According to the source, this illustrates that the

court was not impartial with regard to Mr. Soudad’s conversion to Christianity.

13.

The source states that the Criminal Court of Arzew issued its verdict the same day,

21 January 2021, and sentenced Mr. Soudad to 5 years’ imprisonment and a fine of

100,000 Algerian dinars, with an order for his immediate incarceration. Since 21 January

2021, Mr. Soudad has been held at the Mascara prison under the authority of the Ministry of

Justice.

14.

According to the source, Mr. Soudad filed an appeal of the decision on 26 January

2021, which the Criminal Chamber of the Appeals Court of Oran considered on 22 March

2021. During the appeal proceedings, the defence argued that Mr. Soudad’s right to freedom

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of expression and freedom of conscience had been violated. The Appeals Court of Oran

rendered its verdict the same date, upholding without modification Mr. Soudad’s conviction

by the lower court.

15.

The source states that Mr. Soudad lodged an appeal on points of law with the Supreme

Court against the ruling of the Appeals Court of Oran on 23 March 2021. On 4 November

2021, the Supreme Court issued a judgment, dismissing Mr. Soudad’s appeal on points of

law and thus definitively upholding his conviction.

16.

The source notes that on the occasion of the sixtieth anniversary of the independence

of Algeria, on 5 July 2022, the President issued a pardon via presidential decree.2 The decree

excludes individuals convicted of committing affronts to the Prophet Mohammed or

denigrating Islamic dogma and precepts, which are punishable offences under article 144

bis (2) of the Criminal Code.

b.

Legal analysis

17.

According to the source, the detention of Mr. Soudad is arbitrary under categories II,

III and V of the working methods of the Working Group.

i.

Category II

18.

According to the source, Mr. Soudad’s detention is arbitrary because he was deprived

of his liberty owing to his religion, specifically his conversion to Christianity, in violation of

article 18 of the Covenant. The source notes that, during his questioning at the gendarmerie

station, his trial before the lower court and his appeals, Mr. Soudad’s religion and the reasons

for his conversion to Christianity were mentioned several times. The source alleges that the

religious beliefs of other Algerian nationals prosecuted under article 144 bis (2) of the

Criminal Code are not raised when these individuals are of Muslim faith.

19.

Furthermore, the source submits that Mr. Soudad’s detention is arbitrary in that it

violates his right to freedom of expression enshrined in article 19 of the Covenant. According

to the source, Mr. Soudad was deprived of his liberty for expressing his opinion through a

caricature. The source notes that, by sharing the caricature of the Prophet Mohammed on his

social media page, Mr. Soudad was merely exercising his freedom of expression about a

historical fact of interest to the public.

ii.

Category III

20.

According to the source, Mr. Soudad’s detention is arbitrary, as it disregards

article 9 (1) and (2) of the Covenant. In this regard, the source notes that Mr. Soudad was

summoned to the gendarmerie station with no explanation. Moreover, when he was placed

in police custody, no arrest warrant was issued by the judicial authorities and the reasons for

his arrest were not explained to him.

21.

The source further states that Mr. Soudad’s detention is arbitrary for being in

contravention of article 14 (3) (b) of the Covenant. In this regard, the source submits that the

investigative police officer denied him access to counsel during his police custody.

Furthermore, Mr. Soudad was not given access to his file or allowed to prepare his defence

when his was tried by the lower court on the same day as his indictment.

22.

The source also submits that Mr. Soudad was subjected to psychological pressure in

the form of incommunicado detention without contact with the outside world and that this

pressure compelled him to incriminate himself, in violation of article 14 (3) (g) of the

Covenant.

23.

In addition, the source submits that during Mr. Soudad’s trial before the lower court,

the presiding judge, a Muslim, often emphasized the fact that Mr. Soudad held Christian

beliefs, interrupted him as he was replying to questions and refused to allow him sufficient

2 Presidential Decree No. 22-255 of 4 July 2022 on pardons on the occasion of the sixtieth anniversary

of independence and youth day, Journal officiel de la République algérienne démocratique et

populaire, No. 46, 6 July 2022, p. 4.

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time to describe his version of events. Therefore, the source is of the view that the judge

showed a lack of impartiality, in violation of article 14 (1) of the Covenant.

iii.

Category V

24.

Lastly, the source alleges that Mr. Soudad was prosecuted and convicted for his

religious beliefs, in particular his conversion to Christianity, in violation of article 26 of the

Covenant.

25.

In this regard, the source maintains that all the legal proceedings and rulings in respect

of Mr. Soudad mention his Christianity and, more specifically, his conversion to that religion.

The source submits that nothing in the case justified mentioning his religion.

Response from the Government

26.

On 1 December 2021, the Working Group transmitted a communication concerning

Mr. Soudad to the Government, requesting it to provide detailed information about him by

30 January 2023 and to guarantee his physical and mental integrity.

27.

The Government transmitted its response on 20 January 2023, in which it explains

that, on 19 January 2021, a message denigrating the Prophet Mohammed, his wife Aisha and

Islam, published on a social media page, was brought to the attention of officers of the

investigative police at the Criminal Court of Arzew.

28.

The page read: “Abou Lahab asked the Prophet Mohammed whether the little girl in

the stroller was his granddaughter. He replied that she was his wife, Aisha, mother of

believers.” The Government submits that the message was intended to criticize the Prophet

of Islam by implying that he had married a young girl.

29.

After being informed of the social media post, the public prosecutor ordered an

investigation, which allegedly determined that the author of the messages was Mr. Soudad,

a member of the Protestant Church, and that all his posts were anti-Islam.

30.

Following the investigation, which was supervised by the public prosecutor at the

Criminal Court of Arzew, Mr. Soudad was referred for immediate summary trial, under

article 144 bis (2) of the Criminal Code, for committing an affront to the Prophet and

undermining Islam.

31.

On 21 January 2021, the Criminal Court of Arzew found Mr. Soudad guilty of the acts

of which he stood accused and sentenced him to 5 years’ imprisonment and a fine of

DA 100,000. On 26 January 2021, Mr. Soudad appealed that decision.

32.

On 22 March 2021, the Appeals Court of Oran upheld the decision. An appeal on

points of law of that ruling was lodged with the Supreme Court, which dismissed the appeal

on the merits on 14 November 2021. Mr. Soudad therefore remains detained.

33.

The Government submits that Mr. Soudad was referred for immediate summary trial

under articles 339 bis to 339 bis (7) of the Code of Criminal Procedure. It explains that this

procedure can be initiated in cases of flagrante delicto, in other words when a case can be

tried immediately and does not require the investigating judge to open a judicial investigation.

34.

The Government submits that the case could be tried immediately because, while

being questioned by the investigative police, Mr. Soudad confessed to posting the remarks

that were offensive to the Prophet and Islam. Furthermore, the technical report drawn up by

the investigative police at the instruction of the public prosecutor had revealed that

Mr. Soudad managed the page on which the content at the root of the proceedings had been

published.

35.

According to the Government, this procedure is not devoid of legal safeguards. First,

under article 339 bis (3) of the Code of Criminal Procedure, suspects have the right to

assistance from a lawyer when brought before the prosecutor. They are questioned in the

presence of counsel, which is noted in the interview record. Secondly, article 339 bis (4)

provides for a copy of the file to be made available to the lawyer, who can communicate

freely with the suspect in a separate, specially equipped space. Lastly, pursuant to

article 339 bis (5), the presiding judge is required to inform suspects of their right to request

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a deferral to prepare their defence; the notification and the suspect’s reply must appear in the

decision. Where suspects take advantage of this option, the court must allow them at least

three days.

36.

According to the Government, Mr. Soudad had the assistance of a lawyer at his trial.

The lawyer, whose name has been provided to the Working Group, received a copy of the

file and was able to communicate with her client. According to the Government, that is why

neither Mr. Soudad nor his lawyer requested a deferral to prepare his defence and why he

was tried on the same day he was brought before the court under the immediate summary

trial procedure.

37.

The Government notes that Mr. Soudad’s lawyer attended the hearing, presented her

arguments and raised mitigating circumstances and that Mr. Soudad requested a pardon.

38.

The Government is of the view that the above demonstrates that Mr. Soudad was

brought to justice in accordance with the procedures established by law and that he enjoyed

sufficient legal safeguards. The Government notes that the legislation of other countries

provides for analogous procedures, for instance in article 395 of the Code of Criminal

Procedure of France.

39.

Consequently, the Government is of the opinion that calling into question the

procedures under which Mr. Soudad was prosecuted and the speed of his trial is irrelevant

and has no basis in law or fact.

40.

In addition, the Government denies the allegation that Mr. Soudad was tried in the

absence of counsel, affirming that he had the assistance of a lawyer at court and, during the

appeal process, benefited from the services of a lawyer, whose name was provided to the

Working Group.

41.

The Government notes that Mr. Soudad’s lawyers did not challenge any of the

adjudication procedures, be it before the lower court or in the appeals. In particular, no

challenge was mounted regarding the allegation of judicial bias despite the fact that, pursuant

to article 554 et seq. of the Code of Criminal Code, the defence could have requested the

judges’ recusal. Therefore, according to the Government, Mr. Soudad enjoyed his right to a

fair trial under current judicial procedures, which it considers to be compatible with the

standards set forth in international instruments, particularly the Covenant.

42.

Concerning the compatibility of article 144 bis (2) of the Criminal Code with the

international human rights obligations of Algeria, the Government specifies that the freedoms

of opinion and expression are guaranteed under articles 51 and 52 of the Constitution, while

article 34 establishes that “restrictions on rights, freedoms and safeguards may only be

imposed by law and for reasons related to maintenance of law and order and security,

preservation of national values and protection of other rights and freedoms enshrined in the

Constitution.”

43.

The Government is of the view that these provisions are not incompatible with

article 19 of the Covenant, whether with regard to the protection of the freedoms of

expression and belief or to permissible restrictions on those rights.

44.

The Government adds that, under article 144 bis (2) of the Criminal Code, anyone

who commits an affront to the Prophet or emissaries of God or who denigrates Islamic dogma

or precepts, whether through writings, drawings, statements or other means, is liable to 3 to

5 years’ imprisonment and/or a fine of DA 50,000 to DA 100,000 and that criminal

proceedings can be initiated ex officio by the public prosecution service.

45.

The Government submits that article 144 bis (2) of the Criminal Code is in line with

article 34 of the Constitution and article 19 (3) of the Covenant. The purpose of the

restrictions it contains is, on the one hand, to protect public order in the light of the prevailing

religious context in Algerian society, for which Islam is a national value enshrined in the

Constitution and whose violation necessarily has an impact on social peace. On the other

hand, their purpose is to maintain coexistence among religions, or religious peace, as referred

to by the European Court of Human Rights.

46.

According to the Government, article 144 bis (2) of the Criminal Code is also in line

with the jurisprudence of the European Court of Human Rights, which, in its judgment of

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25 October 2018 in the case E.S. v. Austria, found that article 10 (freedom of expression) of

the Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights) had not been violated.3 In that case, an Austrian court had

convicted E.S. for posing the question at a seminar “What else can a 56-year-old man with a

6-year-old girl be but paedophilia?”

47.

The European Court of Human Rights found that the statement threatened religious

peace and was of a nature to provoke disagreement among the various social groups and that

E.S.’s conviction was legitimate and did not constitute a violation of article 10 (freedom of

expression) of the European Convention on Human Rights.

48.

As a result, the Government submits that the restriction on freedom of expression

provided for in article 144 bis (2) of the Criminal Code is legitimate and compatible with the

provisions of article 34 of the Constitution and article 19 (3) of the Covenant and with the

country’s international human rights obligations.

49.

With regard to the allegations about the lack of a warrant, the Government points out

that articles 51 and 65 of the Code of Criminal Procedure give the police the power to arrest

persons against which there is evidence that they may have committed an offence that carries

a penalty of prison. Arrests in such circumstances can be carried out without a warrant.

Furthermore, under national law, a suspect’s lawyer cannot be present during the preliminary

investigation; however, a suspect can call a lawyer immediately, who may then visit as of the

midpoint of the period of policy custody.

50.

According to the Government, Mr. Soudad was sentenced to prison following his

conviction by a court, in keeping with the law. He enjoyed all safeguards of a fair trial,

including the ability to appeal and assistance of counsel at every stage of proceedings. The

Government notes that only the judiciary has the power to release Mr. Soudad, in keeping

with the principle of the independence of the judiciary enshrined in article 163 of the

Constitution, which establishes that the judiciary is independent and that judges are subject

only to the law.

51.

Mr. Soudad is entitled to health-care services like any other prisoner, in accordance

with article 57 of Act No. 05-04 of 6 February 2005 on the Code on prisons and the social

reintegration of detainees. Given his history of arthritis, he underwent a number of medical

examinations and tests at the Oran short-stay prison, which showed normal results. After his

transfer to the Mascara short-stay prison, Mr. Soudad saw a dentist eight times and a general

practitioner six times for various reasons. His last medical check-up, on 9 January 2023,

showed that he is in normal health and stable physical and mental condition.

52.

The Government submits that family visits take place regularly and that Mr. Soudad

has received 42 visits since 1 April 2021, when he was transferred to a rehabilitation

establishment in Mascara; his last visit was on 27 December 2022.

Additional comments from the source

53.

The reply of the Government was submitted to the source for further comments, which

were provided on 25 January 2023.

54.

First, the source points out that the Government does not contest the fact that

Mr. Soudad was arrested on 19 January 2021 without being shown an arrest warrant issued

by a judicial authority. Yet, the offence of which he was accused, namely sharing a post on

social media, was committed on 6 June 2018, several years before Mr. Soudad’s arrest;

therefore, it was not a case of flagrante delicto, which in specific circumstances can justify

not producing a court-issued arrest warrant. The source also points out that the Government

does not contest the fact that Mr. Soudad was not informed of the reasons for his arrest at the

time. Nor does the Government contest the fact that, while he was held in police custody and

questioned at the gendarmerie station, Mr. Soudad did not receive assistance from a lawyer

3 European Court of Human Rights, E.S. v. Austria, application No. 38450/12, judgment, 25 October

2018.

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of his choosing or a court-appointed lawyer and was not informed of his right to counsel at

any time during his time in custody, including immediately following his arrest.

55.

The source submits that the Government does not present any tangible evidence to

refute the allegations that, during his time in police custody, Mr. Soudad was subjected to

psychological pressure while being questioned by gendarmes, alone and without the

assistance of counsel, to compel him to incriminate himself and sign a confession. The source

stresses that, during questioning, Mr. Soudad was surrounded by five gendarmes who shouted

at him and subjected him to an aggressive, simultaneous barrage of questions with no

opportunity to reply. Mr. Soudad felt suffocated and feared he might be subjected to physical

violence. The source notes that one of the gendarmes allegedly told him that “a person who

changes from Islam to another religion, that’s apostasy, which amounts to treason against

one’s nation.” The source also notes that, although the Government is in sole possession of

the trial record, it does not present any evidence to show that the judge informed Mr. Soudad,

at the start or during the trial, of his right to request a deferral in order to prepare his defence

or that the trial unfolded in a serene and calm manner before an impartial court. The source

further notes that article 144 bis (2) of the Criminal Code is in itself discriminatory since all

religions other than Islam are excluded from its scope.

56.

In addition, the source emphasizes that the Government does not deny that the

atmosphere at the hearing was intimidating for all those present owing to the religious

character of the case. The source alleges that Mr. Soudad’s conversion and Christian faith

were remarked upon numerous times to justify a harsher sentence. The source submits that

Mr. Soudad should have received a lighter sentence since he had no criminal record. In

support of this claim, the source provides similar decisions in which defendants of Muslim

faith were imposed less severe punishments.

57.

The source draws attention to the lack of evidence presented by the Government that

the restrictions on Mr. Soudad’s freedom of expression were justified and in line with

international law. The Government merely asserted that such restrictions are permitted under

the Constitution.

Discussion

58.

From the outset, the Working Group recalls that, on 26 November 2021, it, together

with the Special Rapporteur on freedom of religion or belief, the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression and the Special

Rapporteur on minority issues, issued an urgent appeal in which they expressed their serious

concern over Mr. Soudad’s case.4 The Working Group takes note of the Government’s

response to the urgent appeal, dated 20 January 2022.5

59.

The Working Group thanks the source and the Government for their comments in the

present procedure.

60.

In determining whether Mr. Soudad’s detention is arbitrary, the Working Group has

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

source has established a prima facie case for breach of international law constituting 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.6

61.

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

proceedings against Mr. Soudad were in full compliance with national law, including the

Criminal Code and Code of Criminal Procedure. Nevertheless, even when a detention was

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

application of the law complied with international human rights law.7

4 See communication DZA 10/2021, available at:

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26833.

5 https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36760.

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

7 Opinions No. 5/2020, para. 71; No. 55/2020, para. 70; and No. 7/2021, para. 60.

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Category I

62.

The source submits that Mr. Soudad was arrested on 19 January 2021 without being

shown a warrant or being informed of the reasons for his arrest.

63.

In its response, the Government does not refute the alleged failure to show a warrant

at the time of Mr. Soudad’s arrest, claiming that the arrest was conducted in flagrante delicto

under articles 51 and 65 of the Code of Criminal Procedure. Nor does it challenge the

allegation that Mr. Soudad was not informed of the reasons for his arrest at the time of the

arrest. It notes, however, that Mr. Soudad admitted to being the author of the contentious post

during his first questioning by police.

64.

Under article 9 (1) of the Covenant, no one shall be deprived of his or her liberty

except on such grounds and in accordance with such procedure as are established by law. As

the Working Group has previously stated, in order for a deprivation of liberty to have a legal

basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must

invoke that legal basis and apply it to the circumstances of the case. This is typically done

through an arrest warrant or order, or equivalent document.8,9 Furthermore, article 9 (1) of

the Covenant establishes that anyone who is arrested shall be informed, at the time of arrest,

of the reasons for his or her arrest and shall be promptly informed of any charges against him

or her. A summons by the gendarmerie in connection with an investigation cannot be used as

a pretext to skirt these requirements. The assessment in this regard is factual and consists in

determining whether the authorities intend to arrest the person rather than summon him or

her as a witness.

65.

In the present case, Mr. Soudad was summoned by the gendarmerie and arrested more

than two and half years after allegedly sharing a caricature on his social media page in June

2018. In certain specific cases, such as situations of flagrante delicto, the nature of the act

may justify the lack of an arrest warrant ex ante. It appears from the information submitted

to the Working Group that there was no such situation in the present case. As noted in its

jurisprudence, the Working Group is of the opinion that an offence is flagrant if the accused

is either apprehended during the commission of an offence or immediately thereafter, or is

arrested in hot pursuit shortly after an offence has been committed.10 But that is clearly not

the case here. Moreover, while the Government contends that it was not made aware of

Mr. Soudad’s post until 19 January 2021, it was not a case of violence or urgency that would

justify derogating from habitual human rights standards. Consequently, the Working Group

considers that the source has provided credible evidence, insufficiently refuted by the State,

that Mr. Soudad was arrested without a warrant.

66.

In addition, in the absence of information from the Government to the contrary, the

Working Group finds that Mr. Soudad was not immediately informed of the reasons for his

arrest when he was arrested, in violation of article 9 (2) of the Covenant. The Working Group

notes that the authorities had ample time between the date of the alleged social media post

and Mr. Soudad’s arrest to prepare and issue the notification. According to the source, the

public prosecutor verbally notified Mr. Soudad of the charges against him on 21 January

2021. However, the Working Group does not consider this as offsetting the failure to explain

to Mr. Soudad the reasons for his arrest at the time of his arrest. As the Working Group has

previously told the Government, an arrest is arbitrary when it is carried out without informing

the arrested person of the reasons for the arrest.11

67.

The Working Group therefore finds that Mr. Soudad’s arrest and detention violated

articles 3 and 9 of the Universal Declaration of Human Rights, article 9 of the Covenant and

principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment. The Working Group considers that the arrest and

detention of Mr. Soudad are without legal basis and therefore arbitrary under category I.

8 Human Rights Committee, general comment No. 35 (2014), para. 23.

9 In cases of arrest in flagrante delicto, obtaining an arrest warrant is generally not an option.

10 Opinions No. 36/2017, para. 85; No. 9/2018, para. 38; and No. 7/2021, para. 63.

11 Opinion No. 7/2021, para. 64.

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Category II

68.

The source submits that Mr. Soudad is detained for exercising his right to freedom of

religion, opinion and expression under articles 18 and 19 of the Universal Declaration of

Human Rights and articles 18 and 19 of the Covenant. The source believes that Mr. Soudad

was deprived of his liberty for having expressed his views through a caricature of the Prophet

Mohammed published on his social media page.

69.

In response to these allegations, the Government underscores that freedom of

conscience, opinion, religion and expression are protected under articles 51 and 52 of the

Constitution. The Government notes that restrictions can be placed on fundamental rights

only by law to maintain law and order and public security or to safeguard other rights and

freedoms enshrined in the Constitution.

70.

The Government adds that the Constitution establishes Islam as the State religion.

Therefore, any restrictions placed on freedom of conscience, opinion, religion or expression

pursuant to a legal provision, such as article 144 bis (2) of the Criminal Code, are justified to

protect law and order by virtue of the State religion. In support of this assertion, the

Government refers to the decision of the European Court of Human Rights in E.S. v. Austria.

71.

The Working Group recalls that arrest or detention for the purpose of punishing

someone for exercising legitimate rights enshrined in the Covenant, such as the right to

freedom of thought, conscience and religion (art. 18) or the right to freedom of opinion and

expression (art. 19), is arbitrary.

72.

The Working Group specifies that freedom to communicate, receive and search for

information via the Internet is protected under international law in the same manner as other

ways of expressing opinions, ideas and beliefs. Thus, the detention of an Internet user either

in connection with a criminal investigation, prosecution or conviction or by an administrative

authority constitutes a restriction on freedom of opinion and expression. The detention must

meet the conditions set forth in international law, otherwise it is arbitrary and therefore

illegal.12

73.

The Working Group adds that, under article 19 (3) of the Covenant, two limitative

areas of restrictions on the right to freedom of opinion and expression are permitted, which

may relate either to respect of the rights or reputations of others or to the protection of national

security, public order or public health or morals. Such restrictions can be imposed only under

the conditions set forth in article 19 (3) of the Covenant, namely that they must be provided

by law, be imposed for one of the grounds set out in the aforementioned article and conform

to the strict tests of necessity and proportionality.13

74.

Furthermore, the Human Rights Committee notes that prohibitions of displays of lack

of respect for a religion or other belief system, including blasphemy laws, are generally

incompatible with the principles enshrined in the Covenant. The Committee also notes that

any such laws may not discriminate in favour of or against one or certain religions or belief

systems or their adherents over another, or religious believers over non-believers.14

75.

The Government submits that article 144 bis (2) of the Criminal Code is in line with

article 34 of the Constitution and article 19 (3) of the Covenant. It asserts that the restrictions

therein are aimed at protecting public order in the light of the society’s religious context – in

which Islam is a national value under the Constitution – and at preserving coexistence among

religions, or religious peace, as referred to by the European Court of Human Rights.

76.

The Working Group has raised with the Government the point that proceedings

brought pursuant to overly vague or general criminal provisions heighten the risk of arbitrary

detention.15 It reiterates that laws formulated in vague or general terms are liable to lead to

12 Working Group on Arbitrary Detention, deliberation No. 8 (E/CN.4/2006/7, sect. II), paras. 38 and

39.

13 Human Rights Committee, general comment No. 34 (2011), paras. 21 and 22.

14 Ibid., para. 48.

15 See, for example, opinions No. 49/2012, para. 19; and No. 7/2021, para. 79. See also

CCPR/C/DZA/CO/4, para. 43, on the concerns about article 144 bis (2) of the Criminal Code, among

other provisions, not being in line with article 19 of the Covenant.

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GE.23-08053

abuse and, therefore, to impede the exercise of the right to freedom of expression.

Furthermore, as the Working Group has previously noted, the principle of legality under

article 15 (1) of the Covenant requires that laws be: (a) adequately accessible so that the

individual has a proper indication of how the law limits his or her conduct; and (b) formulated

with sufficient precision so that the individual can regulate his or her conduct.16 The legal

basis for justifying detention must be accessible, understandable, non-retroactive and applied

in a consistent and predictable way to everyone equally.17

77.

In the present case, the Working Group is concerned by the fact that the offences of

which Mr. Soudad was convicted, namely, denigration of Islam and the Prophet, under

article 144 bis (2) of the Criminal Code, are so vague and general as to impede the peaceful

exercise, by Mr. Soudad, of his rights under the Covenant. Indeed, the Working Group

considers that Mr. Soudad could not have predicted that sharing a caricature on his social

media account would constitute criminal behaviour under this provision.18

78.

The Working Group also notes that the Government has not explained how the

proceedings against Mr. Soudad were necessary for the protection of a legitimate interest

within the meaning of article 19 (3) of the Covenant and how the penalty imposed on him

was proportional to his actions.

79.

There is nothing to suggest that the permissible restrictions were applicable to the

present case. The caricature that was shared on social media is humorous in nature, as

reflected in the medium used to present the content. The caricature does not contain any

incitement to hatred or violence or call for the rights of a person or group to be denied. The

Working Group points out that the Government has not explained or justified how any

restriction was legal, proportionate and necessary in the light of the prima facie credible

allegations by the source. As for the judgment in the case E.S. v. Austria, noting that the

European Court of Human Rights emphasized the circumstances of the case and that the

impact of the contested statements must be assessed on the basis of the country situation,

times and context in which they were made, the Working Group points out that in E.S. v.

Austria, the target religion represents a minority in Austria, whereas in Algeria, it represents

the majority since, as the Government mentioned, 99 per cent of the population is Muslim.

Moreover, the fine imposed on the applicant was small; in the case before the Working

Group, Mr. Soudad was sentenced to 5 years’ imprisonment and a fine of DA 100,000.

80.

In these circumstances, the Working Group considers that Mr. Soudad’s arrest and

detention result from the exercise of his right to freedom of expression, particularly as it

relates to his right to freedom of thought, conscience and religion, and thus constitute a

violation of articles 18 and 19 of the Universal Declaration of Human Rights and articles 18

and 19 of the Covenant. His detention is therefore arbitrary under category II.

81.

The Working Group refers the case to the Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression.

Category III

82.

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

Working Group emphasizes that no trial should have taken place. Yet, on 21 January 2021,

Mr. Soudad was sentenced to 5 years’ imprisonment and a fine of DA 100,000. Consequently,

the Working Group proceeds to consider the alleged violations of the right to a fair trial and

due process.

83.

The source submits that Mr. Soudad did not receive the assistance of counsel after his

arrest, while he was in police custody or during questioning by the police. Specifically,

Mr. Soudad was questioned without being informed of his right to have a lawyer present or

16 Opinion No. 41/2017, paras. 98 and 99. See also opinions No. 33/2019, para. 51; and No. 7/2021,

para. 79.

17 A/HRC/22/44, para. 62.

18 See also European Court of Human Rights, Gachechiladze v. Georgia, application No. 2591/19,

judgment of 22 July 2021, in which the Court reiterated that in a pluralistic democracy, those who

choose to freely display their religion must tolerate and accept that others may reject those religious

beliefs or even spread dogmas hostile to their faith.

A/HRC/WGAD/2023/4

GE.23-08053

11

his right to remain silent. He was reportedly permitted to see a lawyer only once he was

brought before the public prosecutor, on 21 January 2021, which was also the day of his trial,

thus preventing him from gaining access to his file and from adequately preparing his

defence.

84.

The Government does not refute the allegation that Mr. Soudad did not have access

to a lawyer while in police custody. It notes that neither Mr. Soudad nor his lawyer claimed

any procedural violations during the trial or the appeal proceedings despite being entitled to

under the Code of Criminal Procedure. The Government also notes that Mr. Soudad’s trial

was in line with the immediate summary trial procedure provided for in the Code of Criminal

Procedure and that neither Mr. Soudad nor his lawyer requested a deferral to prepare his

defence. In addition, the Government stresses that article 339 bis (5) of the Code of Criminal

Procedure requires the presiding judge to inform defendants of their right to request a deferral

for the purpose of preparing their defence, specifying that it must appear in the decision that

the notification was made. The Government affirms that, under national law, lawyers cannot

be present during preliminary investigations and that Mr. Soudad’s right to a fair trial was

therefore not violated.

85.

Article 11 (1) of the Universal Declaration of Human Rights establishes that everyone

charged with a criminal offence has the right to be presumed innocent until proved guilty

according to law in a public trial at which he or she has had all the guarantees necessary for

his or her defence. Article 14 (3) (b) of the Covenant provides that any person deprived of

his or her liberty must have adequate time and facilities for the preparation of his or her

defence and to communicate with counsel of his or her own choosing. The right to legal

assistance by counsel of a person’s choice must be granted at any time during detention,

including immediately after the moment of apprehension, and it must be granted promptly.19

Under the Basic Principles on the Role of Lawyers and principles 17 and 18 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

persons must be immediately informed by the competent authority of their right to be assisted

by a lawyer of their own choice when charged with a criminal offence.20

86.

In the present case, the Government has not refuted the allegation that Mr. Soudad did

not have access to a lawyer while in police custody. On the contrary, the Government notes

that the Code of Criminal Procedure does not allow a lawyer to be present during police

custody. Nevertheless, the mere fact that domestic law allows police custody without access

to a lawyer cannot deprive the detainee of his or her rights under international human rights

law. All persons deprived of their liberty have the right to legal assistance by a lawyer of

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

apprehension, and such access must be provided promptly.21 Any legislation that purports to

remove the right to counsel is inherently contrary to international human rights standards.22

Furthermore, the Government does not convincingly demonstrate that the police or the judge

informed Mr. Soudad of his rights at the start of or during the trial. There is no mention of

any such notification in the decision convicting Mr. Soudad. The fact that a lawyer was

appointed to defend Mr. Soudad at the hearing and during the appeal process does not

compensate for the earlier breach of his right to assistance by counsel.

87.

Consequently, the Working Group considers that not allowing Mr. Soudad to contact

his lawyer while he was in police custody violated his right to communicate with counsel of

his choosing and to prepare his defence in keeping with article 14 (3) (b) and (d) of the

Covenant. The Working Group also considers that this violation is even more troublesome

given the vagueness and harshness of the criminal provision under which Mr. Soudad was

convicted and the lag between the alleged social media post and Mr. Soudad’s arrest. Since

Mr. Soudad faced the penalty of 5 years’ imprisonment, the authorities should have taken

particular care to ensure that he had sufficient time to mount his defence. The Working Group

19 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), principle 9

and guideline 8.

20 Basic Principles on the Role of Lawyers, para. 5.

21 A/HRC/30/37, annex, principle 9 and guideline 8; see also A/HRC/45/16, para. 53.

22 Opinion No. 40/2021, para. 84.

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reiterates the concerns expressed by the Human Rights Committee about article 51 bis of the

Code of Criminal Procedure, which allows for persons in police custody to be denied access

to a lawyer until halfway through the period of custody, thus denying them the right to

assistance of counsel from the start of their detention as enshrined in the Covenant.23

88.

The source submits that Mr. Soudad’s right to a fair trial before an independent and

impartial court was violated inasmuch as the judge exhibited hostility towards Mr. Soudad,

several times referring to his religious beliefs and his conversion to Christianity for no

substantive reason. According to the source, Mr. Soudad was sentenced to the strictest

penalty provided for under article 144 bis (2) of the Criminal Code when he had never been

prosecuted or convicted in the past, which should have constituted mitigating circumstances

in determining his penalty, as happened in other cases relating to the same provision of the

Criminal Code.

89.

The Government denies that the judge acted in a biased manner but does not provide

any specific evidence to refute the prima facie credible allegations by the source. The

Government could have submitted the trial record (or any other procedural document) to

demonstrate that the appropriate procedures were followed and the safeguards established by

law were applied. Consequently, the Working Group considers that the source has made a

prima facie credible case, which has not been sufficiently refuted by the Government, that

Mr. Soudad was denied his right to due process within the meaning of article 14 of the

Covenant.

90.

Furthermore, the source submits that during his questioning by police, Mr. Soudad

was subjected to psychological pressure and insults regarding his conversion with a view to

compelling him to confess. According to the source, Mr. Soudad was questioned by five

police officers, alone and without a lawyer present, for the purpose of forcing him to sign a

confession and to incriminate himself. Mr. Soudad retracted his statement during the trial.

The Government submits that Mr. Soudad was not subjected to any psychological pressure

whatsoever while detained but does not provide any specific evidence to support this claim.

In addition, the Government refers to a “confession” by Mr. Soudad but does not specify how

the confession was obtained. The Working Group recalls that it is the Government’s

responsibility to demonstrate that the authorities did not subject the suspect to psychological

pressure.24 The Working Group therefore considers that the source has made a prima facie

credible case, insufficiently refuted by the Government, that Mr. Soudad was subjected to

psychological pressure and insults for the purpose of getting him to confess.

91.

The Working Group stresses that it is absolutely prohibited, under article 14 (3) (g) of

the Covenant and article 2 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, to which Algeria is a party, to subject a person to torture

or ill-treatment to obtain a confession. Any use of evidence obtain through torture is contrary

to article 15 of the Convention against Torture, and the Working Group considers that a

forced confession mars the entire proceedings, whether or not there is other evidence in

support of the verdict. 25 The Working Group will refer the present case to the Special

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

92.

The Working Group concludes that the violations of Mr. Soudad’s right to a fair trial

were of such gravity as to give his deprivation of liberty an arbitrary character under

category III.

Category V

93.

Lastly, the source notes that the arrest and detention of Mr. Soudad, who belongs to a

religious minority in Algeria, were the result of his religious beliefs and, specifically, his

conversion to Christianity, in violation of article 26 of the Covenant.

94.

According to the source, Mr. Soudad’s religious beliefs and conversion to Christianity

were raised several times as early as his arrest. The source notes that during Mr. Soudad’s

23 CCPR/C/DZA/CO/4, paras. 17 and 18.

24 See, for example, opinion No. 33/2019, para. 68; and No. 7/2021, para. 84.

25 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019,

para. 43; No. 59/2019, para. 70; and No. 73/2019, para. 91.

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GE.23-08053

13

questioning by the gendarmes, one of the officers said that “a person who changes from Islam

to another religion, that’s apostasy, which amounts to treason against one’s nation.”

Moreover, the judge raised the matter of his conversion to Christianity a number of times.

The source submits that neither Mr. Soudad’s religious beliefs nor his conversion to

Christianity were relevant to his trial. In support of these claims, the source underscores that

other defendants, of Muslim faith, being prosecuted under article 144 bis (2) of the Criminal

Code were not questioned about their religion and received lesser punishments, even a State

pardon in some cases. The source therefore considers that Mr. Soudad suffered religious

prejudice.

95.

In its response, the Government does not refute the source’s prima facie credible

allegations that Mr. Soudad was the victim of discriminatory statements and treatment due to

his religious beliefs. The Government merely underlines that article 163 of the Constitution

guarantees the independence of the judiciary.

96.

The Working Group recalls that 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, the detention is arbitrary.

97.

The source provides detailed information to show that the detention of Mr. Soudad

and the harsh penalty imposed on him are tied to his Christian faith. The Government, on the

other hand, does not provide sufficiently convincing information to refute the source’s prima

facie credible allegations. Merely stating that the judiciary is independent on the sole basis

of an article of the Constitution does not negate the fact that the judiciary is an organ of the

State whose actions can be taken into consideration in assessing a State’s respect for its

human rights obligations.

98.

The Working Group notes the concluding observations of the Human Rights

Committee concerning the fourth periodic report of Algeria, in which the Committee also

expressed its concern about legal provisions that violate freedom of thought, conscience and

religion and freedom of expression, including article 144 bis (2) of the Criminal Code.26 In

the light of several submissions and documents considered by the Working Group, it appears

that the Christian minority is being persecuted by way of legal provisions such as article 144

bis (2) of the Criminal Code, among others. The Working Group considers that these

submissions and documents corroborate the source’s statements.

99.

The Working Group thus concludes that Mr. Soudad was deprived of his liberty on

discriminatory grounds, namely his religion, contrary to articles 2 and 7 of the Universal

Declaration of Human Rights and articles 2 (1) and 26 of the Covenant. Mr. Soudad’s

deprivation of liberty is thus arbitrary under category V.

100.

The Working Group refers the present case to the Special Rapporteur on freedom of

religion or belief.

Disposition

101.

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

The deprivation of liberty of Hamid Soudad, being in contravention of articles

2, 3, 7, 9, 11, 18 and 19 of the Universal Declaration of Human Rights and articles 2,

9, 14, 18, 19 and 26 of the International Covenant on Civil and Political Rights, is

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

102.

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

to remedy the situation of Mr. Soudad 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 International Covenant on Civil and Political Rights.

103.

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

case, the appropriate remedy would be to release Mr. Soudad immediately and accord him

26 CCPR/C/DZA/CO/4, paras. 41–43.

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GE.23-08053

an enforceable right to compensation and other reparations, in accordance with international

law.

104.

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

investigation of the circumstances surrounding the arbitrary detention of Mr. Soudad and to

take appropriate measures against those responsible for the violation of his rights.

105.

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

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, the Special Rapporteur on the promotion and protection of the right

to freedom of opinion and expression and the Special Rapporteur on freedom of religion or

belief, for appropriate action.

106.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

107.

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 Mr. Soudad has been released and, if so, on what date;

(b)

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

(c)

Whether an investigation has been conducted into the violation of

Mr. Soudad’s rights and, if so, the outcome of the investigation;

(d)

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;

(e)

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

108.

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.

109.

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 of any failure to take action.

110.

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.27

[Adopted on 27 March 2023]

27 Human Rights Council resolution 51/8, paras. 6 and 9.