Opinion; Subjects: ALGERIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-19912 (E) 201223 271223
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-seventh session,
28 August–1 September 2023
Opinion No. 53/2023 concerning Abderrahmane Zitout (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 25 May 2023 the Working Group
transmitted to the Government of Algeria a communication concerning Abderrahmane
Zitout. The Government submitted a late response on 31 July 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/2023/53
General Assembly
Distr.: General
20 October 2023
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Abderrahmane Zitout is an Algerian shop owner who was born on 24 November 1982
in Laghouat and is usually resident in that city.
(i)
Context
5.
Mr. Zitout is said to be a close family member of a former Algerian diplomat who has
been in exile since 1995 and who obtained political refugee status after having exposed and
denounced serious human rights violations committed by the Algerian authorities during the
civil war.
6.
According to the source, Mr. Zitout’s family member is a political dissident who has
been campaigning for human rights and freedom of expression in Algeria for 27 years. He is
said to be one of the leaders of the Hirak movement, which emerged in 2019, and the
co-founder of the Rachad movement. Since going into exile, he has called for the
establishment of the rule of law and democracy and for the army’s control over the Algerian
State to be brought to an end. He was also reportedly placed on a list of “terrorist” individuals
due to his involvement in the Rachad movement. According to the source, the Rachad
movement is a pacifist and non-ideological political movement that, in accordance with its
statutes and Charter, is calling for the establishment of the rule of law and democracy in
Algeria.
7.
The source explains that, in retaliation for their criticism of the Government, the
authorities have placed political dissidents, journalists and bloggers on national lists of
“terrorist” individuals and entities. According to the source, these listings are illegal and
arbitrary and have led to peaceful political opposition movements, such as the Rachad
movement and the Mouvement pour l’autodétermination de la Kabylie, being placed on the
list of “terrorist” entities, which was appended to an order of 6 February 2022 on inclusion
in the national list of terrorist individuals and entities. The source states that the procedures
for placing terrorist individuals and entities on, and removing them from, the national list, in
addition to the resulting implications, are set out in Executive Decree No. 21-384 of
7 October 2021. The source adds that the order of 6 February 2022 is based on a series of
executive texts that have already been the subject of a joint communication by special
procedure mandate holders of the Human Rights Council.2 According to the source, the texts
in question contravene international counter-terrorism standards and standards on respect for
fundamental rights and freedoms.
8.
The source argues that the inclusion of individuals in this list constitutes a serious
infringement of their and their families’ fundamental rights and freedoms and that it
demonstrates a particularly dangerous use of international counter-terrorism cooperation by
the authorities, which are taking their repression to an international level by targeting
peaceful dissidents who have sought refuge abroad.
9.
In addition, the source notes that some activists are being held in prison due to their
involvement in the Rachad movement or simply because they expressed their support on
social media by “liking” publications.
10.
The source claims that the repression of peaceful dissidents carrying out activism from
abroad has consequences for their relatives still residing in Algeria, as demonstrated by the
present case. According to the source, the authorities arrested and detained Mr. Zitout to put
pressure on his exiled family member.
(ii)
Arrest and detention
11.
Mr. Zitout was reportedly arrested at 6 p.m. on 30 March 2022 by around 10 armed
agents, some in uniform and others wearing plain clothes and balaclavas. He was arrested
while in his clothing shop on the ground floor of his family home. The police searched his
2 See communication DZA 12/2021, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26905.
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3
shop and home and seized all his electronic equipment, including his phone and computer.
Mr. Zitout was then taken to an unknown location, where he was held incommunicado until
4 April 2022.
12.
According to the source, despite enquiries by his family, Mr. Zitout’s place of
detention remained unknown until 4 April 2022, when his family learned that he was being
held in the El Harrach prison in the outskirts of Algiers.
13.
Mr. Zitout’s family then discovered that he had spent the five days following his arrest
at the central police station in Algiers. There, he was allegedly questioned at length by
officers from the criminal investigation department about his ties to his exiled family member
and the type of relationship that they had. The officers also asked him whether he shared his
exiled family member’s political beliefs. In addition, Mr. Zitout was questioned about events
linked to the Hirak movement and about the financial assistance provided by his exiled
relative to the rest of his family back in Algeria. According to the source, Mr. Zitout was at
no point questioned about any subversive activities, membership of a terrorist group or
publication of false information. However, on 5 April 2022, he was brought before the public
prosecutor at the Sidi M’Hamed court and personally accused of these crimes for the first
time.
14.
Although Mr. Zitout denied the criminal charges being brought against him, the
magistrate requested the opening of a judicial investigation into Mr. Zitout for having:
(a) joined and participated in associations, groups and organizations, notably the Rachad
movement, with terrorist and subversive motives and engaged in terrorist and subversive
activities falling under article 87 bis of the Criminal Code; (b) compromised the security and
territorial integrity of the country, on the basis of article 79 of the Criminal Code;
(c) published and intentionally disseminated false and malicious information undermining
public security and order, on the basis of article 196 bis of the Criminal Code; and
(d) received funds from abroad with the intention of taking action that would compromise
State security and institutions through the implementation of a plan orchestrated within and
outside of the country.
15.
The accusations against Mr. Zitout are said to be based on the testimony of a former
soldier, who became a whistle-blower and used social media to denounce corruption among
senior Algerian military officials. The individual in question took refuge in a third country,
where he applied for asylum in 2019. After being handed over to the Algerian authorities,
this individual was allegedly subjected to severe torture in order to force him to make a
confession on prime-time television. These confessions were used to justify Mr. Zitout’s
arrest.
16.
According to the source, the investigating judge ordered Mr. Zitout to be held in
pretrial detention despite the total absence of material evidence in his case, with the exception
of the above-mentioned forced confessions. Mr. Zitout’s lawyers appealed against the
investigating judge’s order on 7 April 2022. On 20 April 2022, the indictments chamber,
which, according to the source, is under the control of the executive branch, upheld the order
due to the seriousness of the charges.
17.
On 9 June 2022, Mr. Zitout’s lawyers submitted a second request for his release, citing
the absence of material evidence in the case and the fact that the proceedings had been
initiated based solely on a statement obtained under torture. The request was rejected, which,
according to the source, demonstrates the lack of independence of the investigating court and
the purely political nature of the case.
18.
The source notes that Mr. Zitout’s state of health and the lack of care mean that his
life is at risk. Mr. Zitout went on hunger strike from 14 August to 1 September 2022 in protest
against the arbitrary nature of his detention. During this period, he was allegedly placed in
solitary confinement in a small cell with no natural light. On 11 September 2022, he was
rushed to hospital following a deterioration in his health. His family was not given access to
his medical records.
19.
Since his arrival in prison, Mr. Zitout’s health problems have forced him to use a
wheelchair. He is said to be suffering from untreated back problems and a herniated disc. On
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16 February 2023, Mr. Zitout began a new hunger strike in protest against his prolonged
pretrial detention, which had already lasted for more than a year.
20.
According to the source, the present case demonstrates that the Algerian authorities
are using legal counter-terrorism provisions as an instrument of repression and retaliation
against political dissidents and members of their families who have remained in Algeria. In
addition, since July 2022, several other members of Mr. Zitout’s family have reportedly been
persecuted and frequently summoned to the police station for questioning about their
relationship with Mr. Zitout’s exiled family member.
(iii)
Legal analysis
21.
The source argues that Mr. Zitout’s detention is arbitrary under categories II and III
of the methods of work of the Working Group.
a.
Category II
22.
According to the source, Mr. Zitout’s deprivation of liberty is arbitrary under category
II as he has been detained due to the exercise by a member of his family of the rights and
freedoms guaranteed by articles 18, 19, 21, 22 and 26 of the Covenant.
23.
The source notes that, since going into exile in 1995 and obtaining political refugee
status, Mr. Zitout’s family member has publicly denounced the serious violations of human
rights and humanitarian law committed by the Algerian army during the civil war. He has
done so on Arab and European television channels, on which he is a regular guest. Since
going into exile, he has been a political dissident calling for the establishment of the rule of
law and for the army’s control over the Algerian State to be brought to an end.
24.
According to the source, the peaceful political activism carried out by Mr. Zitout’s
family member and his involvement in the Rachad movement led the Algerian authorities to
place him on the list of “terrorist” individuals. In this connection, the source notes that the
Rachad movement is a non-ideological movement, whose Charter and statutes call for
political change by peaceful means. The Algerian authorities, however, have designated it an
“Islamist movement” and a “terrorist movement”. The source considers that these
designations are intended to provoke a rejection of the movement in the West and to discredit
its members and supporters by invoking the fight against terrorism.
25.
The source recalls that, in a joint communication dated 27 December 2021, several
special procedure mandate holders of the Human Rights Council expressed their concerns
about the regular invocation of Algerian counter-terrorism legislation as a basis for
accusations against opponents of the Government. 3 According to the source, this
counter-terrorism legislation is concerning because of the lack of a clear and predictable
definition of terrorism and because its scope has been extended to provide for the
criminalization of acts linked to freedom of opinion, expression and peaceful assembly.
Accordingly, the mandate holders called on the Government to review the legislation,
expressing concern that the definition of “terrorism” in the new version of article 87 bis of
the Criminal Code was inconsistent with the definitions formulated by the Security Council
and the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism.
26.
According to the source, Mr. Zitout was deprived of liberty in retaliation for his exiled
family member’s peaceful expression of dissenting opinions and exercise of rights
guaranteed by the Covenant. The source claims that Mr. Zitout is being detained because of
his family member’s exercise of the rights guaranteed by articles 18, 19, 21, 22 and 26 of the
Covenant.
27.
The source therefore concludes that Mr. Zitout’s detention is arbitrary under category
II.
3 Communication DZA 12/2021, p. 3.
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b.
Category III
28.
According to the source, Mr. Zitout’s deprivation of liberty is arbitrary under category
III because he has been the victim of serious violations of his rights under articles 9 and 14
of the Covenant.
29.
The source claims that, at the time of his arrest, Mr. Zitout was not informed of the
reasons for his arrest or the charges against him and that he did not receive that information
until he was brought before the competent judicial authority. The source therefore concludes
that the authorities violated Mr. Zitout’s rights under article 9 (1) and (2) of the Covenant.
30.
The source also argues that Mr. Zitout is being kept in detention despite the total
absence of evidence, in violation of article 14 (2) of the Covenant.
31.
Moreover, Mr. Zitout was reportedly deprived of all contact with his family and
lawyers for five days following his arrest, in violation of article 14 (3) (b) and (d) of the
Covenant.
(b)
Response from the Government
32.
On 25 May 2023, the Working Group transmitted a communication to the
Government requesting it to provide detailed information on Mr. Zitout by 24 July 2023 at
the latest. Specifically, the Working Group requested the Government to clarify the legal
provisions justifying Mr. Zitout’s continued detention and their compatibility with the
obligations of Algeria under international human rights law, in particular with the treaties
that the State has ratified. Moreover, the Working Group called upon the Government to
ensure the physical and mental integrity of Mr. Zitout.
33.
The Government submitted its response on 31 July 2023, which was after the set
deadline. The Government did not request an extension of the time limit for its response, as
provided for under the Working Group’s methods of work. As such, the Working Group
cannot accept the response as if it were submitted on time.
2.
Discussion
34.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
35.
In determining whether Mr Zitout’s deprivation of liberty 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.4 In the present case, the Government has
chosen not to challenge the prima facie credible allegations made by the source in a timely
manner.
(a)
Category I
36.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without a legal basis.
37.
The source claims that, at the time of his arrest, Mr. Zitout was not informed of the
reasons for his arrest or the charges against him and that he did not receive that information
until his appearance before the competent judicial authority.
38.
As the Working Group has 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 an equivalent document).5 In addition, article 9 (2) of
4 A/HRC/19/57, para. 68.
5 Human Rights Committee, general comment No. 35 (2014), para. 23. See also opinions No. 88/2017,
para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. See also Arab Charter on Human Rights,
art. 14 (1).
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the Covenant provides that anyone who is arrested shall be informed, at the time of arrest, of
the reasons for his arrest and shall be promptly informed of any charges against him. Respect
for these rights is essential for the other rights set forth in article 9 of the Covenant, since all
individuals must know the reasons for their arrest to be able to challenge it effectively and
must be brought before a court or magistrate to be able to file an appeal.
39.
According to the source, following his arrest on 30 March 2022, Mr. Zitout was taken
to the central police station in Algiers, where he was questioned at length by officers from
the criminal investigation department about his ties to his exiled family member. His
appearance before the public prosecutor at the Sidi M’Hamed court on 5 April 2022 marked
the first time that he was accused of subversive activities, membership of a terrorist group
and the publication of false information.
40.
In its late response, the Government admits that Mr. Zitout was arrested and detained
from 30 March to 5 April 2022, when he was brought before the competent public prosecutor.
However, the Government claims that the extension of Mr. Zitout’s detention was ordered
and authorized in writing by the competent prosecutor. The Government submits that
Mr. Zitout was notified of the reasons for his arrest, as evidenced by the preliminary
investigation records. The Government adds that all the questions put to Mr. Zitout concerned
the activities that led to his arrest.
41.
The Working Group notes that the Government does not specify when and how
Mr. Zitout was informed of the reasons for his arrest and the crimes of which he was accused.
Furthermore, the Government makes no mention of any arrest warrant or order being
presented at the time of Mr. Zitout’s arrest. The Working Group is concerned by the
Government’s argument that Mr. Zitout could have worked out the reasons for his detention
from the questions put to him during his interview, which it does not consider convincing.
The Working Group recalls that the reason that individuals have the right to be informed of
the reasons for their arrest, as guaranteed by article 9 of the Covenant, is so that they have
the opportunity to understand the allegations on the basis of which they were arrested before
answering the authorities’ questions. Should defendants be required to guess the reasons for
their arrest based on the questions put to them, they could run the risk of unknowingly
providing information that is prejudicial to their case. In view of the Government’s response,
the Working Group considers credible the source’s allegations that, at the time of his arrest,
Mr. Zitout was neither informed of the reasons for his arrest nor promptly informed of any
charges against him, in violation of article 9 (2) of the Covenant.
42.
Pursuant to article 9 (3) of the Covenant, anyone arrested or detained on a criminal
charge shall be brought promptly before a judge. The Human Rights Committee has observed
that 48 hours is ordinarily sufficient to satisfy this obligation, and any longer delay must
remain absolutely exceptional and be justified under the circumstances.6 The facts reported
by the source and the Government indicate that Mr. Zitout was not brought before the public
prosecutor until 5 April 2022, six days after his arrest on 30 March 2022. According to the
Government, the extension of Mr. Zitout’s detention was authorized in writing by the
competent prosecutor. As the Working Group has stated, a prosecuting body cannot be
considered to be a judicial authority for the purposes of article 9 (3) of the Covenant.7 The
Government provided no explanation to justify why Mr. Zitout did not appear before the
competent public prosecutor until five days after his arrest. The Working Group therefore
concludes that the Government has violated the provisions of article 9 (3) of the Covenant.
43.
According to the source, the investigating judge ordered Mr. Zitout to be held in
pretrial detention despite the total absence of material evidence in his case. In its late
response, the Government claims that the investigating judge has the discretion to take any
of the measures, such as release, judicial review or pretrial detention, provided for in articles
123 and 123 bis of the Code of Criminal Procedure. The Working Group notes that the
6 Human Rights Committee, general comment No. 35 (2014), para. 35. See also opinion No. 67/2019,
para. 64.
7 Opinions No. 64/2020, para. 56 and No. 31/2022, para. 81; Human Rights Committee, general
comment No. 35 (2014), para. 32; and A/HRC/45/16/Add.1, para. 35 (in which the Working Group
notes that prosecuting bodies do not possess the requisite degree of independence to assess the
necessity and proportionality of detention).
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Government has not contested the fact that Mr. Zitout has been held in pretrial detention for
more than a year and that all his requests for release have been refused.
44.
Pursuant to article 9 (3) of the Covenant, pretrial detention should be the exception
rather than the norm and should be ordered for the shortest time possible.8 It must be based
on an individualized determination that it is reasonable and necessary for such purposes as to
prevent flight, interference with evidence or the recurrence of crime. 9 The courts must
examine whether alternatives to pretrial detention, such as release on bail, would render
detention unnecessary.10 In determining whether the conditions governing pretrial detention
have been met, the Working Group focuses on whether the national courts have taken into
account the particular circumstances of the person concerned but does not check whether
there are risks that would make detention necessary.11
45.
The Working Group considers that the Government has failed to explain why it was
necessary to hold Mr. Zitout in pretrial detention. Noting the Government’s argument that
national law authorizes judges to order pretrial detention, the Working Group stresses that
even if the detention is in conformity with national legislation, regulations and practices, the
Working Group is entitled and obliged to assess the circumstances of the detention and the
law itself to determine whether such detention is also consistent with the relevant provisions
of international human rights law.12
46.
The Working Group notes the source’s allegations that, following his arrest on
30 March 2022, Mr. Zitout was taken to an unknown destination. Despite enquiries by his
family, his place of detention remained unknown until 4 April 2022. As a result, the source
maintains that Mr. Zitout was deprived of all contact with his family and lawyers for five
days. In its late response, the Government claims that the preliminary investigation reports
indicate that Mr. Zitout refused to contact his family and his lawyer and that he signed and
fingerprinted police records.
47.
The Working Group recalls that holding individuals incommunicado or in secret,
particularly from their family and lawyer, constitutes a violation of their right under article 9
(4) of Covenant to challenge the lawfulness of their detention before a court. The Working
Group found that the secret or incommunicado detention of individuals is in itself a violation
of international human rights law and gives the deprivation of liberty an arbitrary character.13
48.
The Working Group notes that the source has provided a detailed and consistent
account to support its allegations. The Working Group also notes that the Government does
not deny that, following Mr. Zitout’s arrest, members of his family went to enquire about his
fate, in vain, and that the authorities refused to inform them of Mr. Zitout’s situation, the
reasons for his arrest and his place of detention. In these circumstances, the Working Group
considers that Mr. Zitout was subjected to enforced disappearance. Enforced disappearances
violate numerous substantive and procedural provisions of the Covenant, including articles 9
and 14, and constitute a particularly aggravated form of arbitrary detention.14 The fact that
Mr. Zitout was deprived of his right to challenge the lawfulness of his detention means that
his right to an effective remedy under article 8 of the Universal Declaration of Human Rights
and article 2 (3) of the Covenant has also been violated. Furthermore, the Working Group
concludes that Mr. Zitout was held outside the protection of the law, in violation of article 6
of the Universal Declaration of Human Rights and article 16 of the Covenant.15
8 A/HRC/19/57, paras. 48–58; and opinions No. 5/2019, para. 26; No. 62/2019, paras. 27–29; and
No. 64/2020, para. 58.
9 Human Rights Committee, general comment No. 35 (2014), para. 38.
10 See, for example, opinion No. 64/2020, para. 58.
11 Opinions No. 46/2020, para. 62; No. 37/2021, para. 72; and No. 15/2022, para. 66.
12 See opinions No. 1/1998, para. 13; No. 76/2019, para. 36; and No. 6/2020, para. 36.
13 A/HRC/51/29, para. 47. See also, for example, opinions No. 25/2021, No. 30/2021, No. 32/2021,
No. 42/2021, No. 45/2021, No. 47/2021, No. 48/2021, No. 51/2021, No. 53/2021, No. 59/2021,
No. 70/2021, No. 80/2021 and No. 81/2021.
14 Human Rights Committee, general comment No. 35 (2014), para. 17; and opinions No. 11/2020,
para. 41; No. 41/2020, para. 61; No. 37/2021, para. 65; and No. 15/2022, para. 62.
15 See opinions No. 32/2019, No. 33/2019 and No. 45/2019.
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49.
In view of its above conclusions, the Working Group considers that Mr. Zitout’s
detention has no legal basis, in violation of article 9 of the Covenant and articles 3 and 9 of
the Universal Declaration of Human Rights. His detention is therefore arbitrary under
category I.
(b)
Category II
50.
According to the source, Mr. Zitout’s deprivation of liberty is arbitrary under category
II as he has been detained due to the exercise by a member of his family of the rights and
freedoms guaranteed by articles 18, 19, 21, 22 and 26 of the Covenant. The source argues
that the peaceful political activism carried out by Mr. Zitout’s family member and his
involvement in the Rachad movement led the Algerian authorities to place that family
member on the list of “terrorist” individuals.
51.
In its late response, the Government submits that Mr. Zitout was arrested and detained
for publishing leaflets that insulted symbols of the Algerian State and praised the actions of
individuals belonging to the Rachad movement, which is classed as a terrorist movement,
and for being in possession of leaflets that incited police officers to rebel.
52.
The Working Group recalls that arrest or detention is arbitrary if used to punish an
individual for the legitimate exercise of the rights protected by the Covenant, including
freedom of opinion and expression, as guaranteed by article 19. In addition, under article 19
(3) of the Covenant, restrictions on the right to freedom of opinion and expression are
permitted in just two scenarios, which relate either to respect of the rights or reputations of
others or to the protection of national security or of public order (ordre public) or of public
health or morals.
53.
The Working Group notes that, by claiming that Mr. Zitout was arrested for publishing
leaflets considered to insult State symbols, support the Rachad political movement and call
for rebellion by law enforcement officers, the Government is, in reality, recognizing that
Mr. Zitout was prosecuted for exercising his right to freedom of expression. According to the
source, the Rachad movement is a pacifist and non-ideological political movement that, in
accordance with its statutes and Charter, is calling for the establishment of the rule of law
and democracy in Algeria. The Government provides no detailed or specific information on
the content of the leaflets that Mr. Zitout was alleged to have published and fails to
demonstrate that he called for any acts of violence. The Working Group therefore concludes
that Mr. Zitout was arrested and has been detained for having exercised his legitimate rights
under article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights.
54.
According to the source, Mr. Zitout is being held on charges under article 87 bis of
the Criminal Code. In 2018, the Human Rights Committee expressed concern about this
article and noted that it defines the crime of terrorism in overly broad and vague terms that
would allow for the prosecution of actions that might constitute exercise of the freedom of
expression or peaceful assembly. 16 The Committee was also concerned about the
inappropriate use of counter-terrorism measures against human rights defenders. 17 The
Working Group reiterates its concerns about the vague nature of the Algerian
counter-terrorism law under which Mr. Zitout is being held.18 The Working Group recalls
that laws that are vaguely and broadly worded may have a deterrent effect on the exercise of
protected rights, including freedom of thought, conscience and religion, freedom of opinion
and expression and freedom of peaceful assembly and association, as they have potential for
abuse, including the arbitrary deprivation of liberty.19
55.
The principle of legality requires that laws be formulated with sufficient precision so
that the individual can acquire access to and understand the law and regulate his or her
conduct accordingly. However, article 87 bis and other provisions of the Criminal Code
define terrorist offences in excessively broad terms, which may, as in this case, proscribe the
16 CCPR/C/DZA/CO/4, para. 17; see also opinion No. 15/2022, para. 77.
17 CCPR/C/DZA/CO/4, paras. 17 and 18.
18 See communication DZA 12/2021.
19 Opinions No. 36/2017, para. 102; No. 41/2017, para. 98; No. 51/2017, para. 56; No. 56/2017,
para. 71; No. 57/2017, para. 65; No. 88/2017, para. 50; and No. 10/2018, para. 55.
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9
peaceful exercise of rights guaranteed by international law.20 In some circumstances, the laws
are so vague and broadly worded that it is impossible to invoke any legal basis justifying the
deprivation of liberty. In the present case, the application of vague and overly broad
provisions adds weight to the Working Group’s conclusion that Mr. Zitout’s deprivation of
liberty is arbitrary under category II. In addition, the Working Group considers that, in some
circumstances, laws may be so vague and overly broad that it is impossible to invoke them
as a legal basis justifying the deprivation of liberty.
56.
The source also claims that the authorities arrested and detained Mr. Zitout to put
pressure on his exiled family member. According to the source, Mr. Zitout was questioned
by officers from the criminal investigation department about his ties with that family member
while detained. In its late response, the Government claims that, although Mr. Zitout’s
relative has been opposing the Government from abroad for 27 years, nobody close to him
has been harassed or prosecuted during this period. As these allegations are dealt with under
category V below, the Working Group does not consider it necessary to address them here.
57.
Nevertheless, in view of its above conclusions, the Working Group concludes that
Mr. Zitout has been detained for having exercised his right to freedom of expression and
opinion, as provided for in article 19 of the Covenant and article 19 of the Universal
Declaration of Human Rights. His detention is therefore arbitrary under category II.
(c)
Category III
58.
As the Working Group has found that Mr. Zitout’s detention is arbitrary under
category II, it stresses that he should not have been brought to trial. However, the source
provided the Working Group with additional information that, on 23 July 2023, Mr. Zitout
was convicted and sentenced to 2 years’ imprisonment for contempt for constituted bodies
and for publishing false information with the aim of undermining public order and public
safety.
59.
The source claims that Mr. Zitout’s detention is arbitrary under category III, since it
is contrary to article 14 of the Covenant. The source submits that Mr. Zitout was deprived of
all contact with his lawyers for five days, in violation of article 14 (3) (b) and (d) of the
Covenant. In its late response, the Government highlights that the preliminary investigation
reports indicate that Mr. Zitout was informed of his rights, but refused to contact his lawyer,
and that he signed and fingerprinted police records.
60.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel of their choice, as guaranteed by article 14 (3) (b) and (d) of the
Covenant. This right applies at any time during their detention, including immediately after
the moment of apprehension, and access to counsel must be granted promptly. 21 Any
legislation that purports to remove the right to counsel is inherently contrary to international
human rights standards.22
61.
The Working Group considers that the allegations made by the source are detailed and
consistent and that the Government failed to refute them convincingly in its late response.
Although the Government claims that Mr. Zitout was assisted by five lawyers, it provides no
information to prove that Mr. Zitout had access to a lawyer immediately after his arrest. In
these circumstances, the Working Group considers that the authorities violated Mr. Zitout’s
right to legal assistance by counsel of his choice, as guaranteed by article 14 (3) (b) and (d)
of the Covenant.
62.
According to the source, the accusations against Mr. Zitout and his arrest are based
on the testimony of a former soldier that was obtained after the former solider had been
subjected to severe torture. In its late response, the Government stresses that it is not for the
Working Group to evaluate the facts and evidence in the case and that the Working Group
20 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59.
21 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; A/HRC/45/16, para. 51; and Human Rights Committee, general comment No. 35
(2014), para. 35.
22 Opinion No. 40/2021, para. 84.
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cannot act as a substitute for national courts of appeal. However, the question is not whether
the Working Group may evaluate the facts and evidence, but, rather, whether the Government
used evidence obtained through torture. Given that the Government does not directly address
this issue, and taking into account the detailed information provided by the source, the
Working Group considers that this is a real risk. The Working Group recalls that the use of
confessions obtained under torture is contrary to article 15 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and taints the entire
proceedings. Furthermore, the admission as evidence of a statement obtained under torture
renders the entire proceedings unfair and contrary to article 14 of the Covenant and article 10
of the Universal Declaration of Human Rights.
63.
The Working Group concludes that the violations of Mr. Zitout’s right to a fair trial
are of such gravity as to render his deprivation of liberty arbitrary under category III.
(d)
Category V
64.
According to the source, Mr. Zitout is a close family member of a former Algerian
diplomat who has been in exile since 1995 and who obtained political refugee status after
having exposed and denounced serious human rights violations committed by the Algerian
authorities during the civil war. The source claims that the authorities arrested and detained
Mr. Zitout to put pressure on his exiled family member. In its late response, the Government
argues that Mr. Zitout was imprisoned due to his own actions and that his relative has been
living abroad for 27 years, which contradicts the source’s claim that Mr. Zitout was arrested
due to his ties with this relative.
65.
The Working Group notes the source’s allegations that Mr. Zitout was questioned at
length by officers from the criminal investigation department about his ties to his exiled
family member and the type of relationship that they had. He was also asked whether he
shared his exiled family member’s political beliefs. In addition, the source claims that, since
July 2022, several other members of Mr. Zitout’s family have been frequently summoned to
the police station for questioning about their relationship with Mr. Zitout’s exiled family
member, which the Government does not deny. Furthermore, the Working Group notes that,
in its late response, the Government provides no evidence to prove that Mr. Zitout was
criminally responsible for the acts of which he was accused.
66.
The Working Group therefore considers that Mr. Zitout is being detained on
discriminatory grounds, in particular because of his family ties and in retaliation for the
activism and political views of his exiled family member. This is a case of guilt by
association.23 The Working Group reaffirms that, in a free and democratic society, no one
should be deprived of their liberty for crimes, real or not, committed by his or her family
member by birth or marriage.24
67.
The Working Group concludes that Mr. Zitout was deprived of his liberty on
discriminatory grounds, in violation of articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant. His detention is therefore arbitrary under
category V.
(e)
Concluding remarks
68.
The Working Group is concerned by the source’s allegations that Mr. Zitout went on
hunger strike from 14 August to 1 September 2022. During this period, he was allegedly
placed in solitary confinement in a small cell with no natural light. On 11 September 2022,
Mr. Zitout was rushed to hospital following a deterioration in his health. On 16 February
2023, Mr. Zitout reportedly began a new hunger strike in protest against his prolonged pretrial
detention, which had lasted for almost a year. The Working Group notes the lack of detailed
information provided by the Government to refute these allegations.
23 Opinions No. 1/2017, para. 59; No. 33/2017, para. 98; No. 83/2017, paras. 87 and 88; No. 65/2019,
para. 85; and No. 2/2021, para. 82. See also opinions No. 34/2013, No. 35/2013 and No. 36/2013.
24 Opinion No. 65/2019, para. 83.
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11
69.
The Working Group recalls that, according to rule 45 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the imposition
of solitary confinement should be accompanied by certain safeguards. Solitary confinement
should be used only in exceptional cases as a last resort, for as short a time as possible, subject
to independent review and pursuant to authorization by a competent authority. Prolonged
solitary confinement lasting more than 15 consecutive days is prohibited under rules 43 (1)
(b) (prohibiting the use of solitary confinement as a punishment), 44 and 45 of the Nelson
Mandela Rules. In addition, the Working Group recalls that a detainee’s poor state of health
or poor detention conditions may compromise his or her ability to participate in legal
proceedings and prepare his or her defence, in violation of article 14 of the Covenant and
article 10 of the Universal Declaration of Human Rights.25
70.
The Working Group takes this opportunity to remind the Government of its obligation
under article 10 (1) of the Covenant to ensure that all persons deprived of their liberty are
treated with humanity and with respect for the inherent dignity of the human person. The
Working Group also recalls that, under rules 24 and 118 of the Nelson Mandela Rules, any
person deprived of his or her liberty must be allowed to enjoy the same standards of health
care that are available in the community and must be allowed to be visited and treated by his
or her own doctor if there are reasonable grounds for the application and he or she is able to
pay any expenses incurred. The Working Group urges the Government to ensure that
conditions in all places of deprivation of liberty in Algeria are compatible with international
standards.
71.
Lastly, the Working Group is concerned by the source’s allegations that, since
July 2022, several other members of Mr. Zitout’s family have been persecuted and frequently
summoned to the police station for questioning about their relationship with Mr. Zitout’s
exiled family member. Although the Government claims that Mr Zitout’s family member has
been opposing the Government from abroad for 27 years, during which time none of his
relatives have been harassed or prosecuted, it does not directly contest this allegation of
reprisals against Mr. Zitout’s family since July 2022. The Working Group takes this
opportunity to reaffirm that any form of reprisals is unacceptable and that States have a duty
to act with due diligence to protect individuals and groups. The Working Group urges the
Government to put an end to all acts of intimidation or reprisals against members of
Mr. Zitout’s family.
3.
Disposition
72.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abderrahmane Zitout, being in contravention of
articles 2, 3, 6, 7, 8, 9, 10 and 19 of the Universal Declaration of Human Rights and
articles 2, 9, 14, 16, 19 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II, III and V.
73.
The Working Group requests the Government of Algeria to take the steps necessary
to remedy the situation of Mr. Zitout 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.
74.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Zitout immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
75.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary detention of Mr. Zitout and to
take appropriate measures against those responsible for the violation of his rights.
25 Opinions No. 46/2014, para. 37; No. 29/2017, para. 63; No. 59/2019, para. 69; and No. 31/2022,
para. 99.
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76.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
77.
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. Zitout has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Zitout;
(c)
Whether an investigation has been conducted into the violation of Mr. Zitout’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.
78.
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.
79.
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.
80.
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.26
[Adopted on 31 August 2023]
26 Human Rights Council resolution 51/8, paras. 6 and 9.