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.24-01792 (E) 050324 050324
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-eighth session, 13–17 November 2023
Opinion No. 58/2023 concerning Azzedine Maache (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 24 July 2023, the Working Group
transmitted to the Government of Algeria a communication concerning Azzedine Maache.
The Government has not replied to the communication. 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/2023/58
General Assembly
Distr.: General
9 February 2024
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Azzedine Maache, born on 8 May 1973 in Ichmoul, in the wilaya (governorate) of
Batna, Algeria, is an Amazigh employed by a national airline. He is also a poet and is said to
write Tamazight poems with the aim of promoting Amazigh culture.
(i)
Context
5.
According to the information provided by the source, Mr. Maache is Amazigh and
lives in the city of Batna, located in the Aurès, a Tamazight-speaking region in eastern
Algeria. The region is inhabited by the Chaouis, an ethnic group belonging to the Amazigh
people.
6.
According to the source, Mr. Maache is a peaceful activist campaigning for the
cultural rights of the region’s Amazigh people and for democracy in Algeria. He reportedly
participated in all the peaceful pro-democracy demonstrations organized by the Hirak
movement from February 2019 onward. This movement is said to have been suppressed in
2020.
(ii)
Arrest and detention
7.
According to the source, Mr. Maache had already been arrested in 2019 for carrying
the Amazigh flag during a peaceful Hirak demonstration. His arrest was said to have been
ordered by the former Chief of Staff of the Algerian army, who had ordered the arrest of all
individuals carrying the Amazigh flag. Mr. Maache was arrested and brought before the court
on charges of undermining territorial unity, of which he was acquitted.
8.
The source reports that, on 14 September 2021, Batna city police officers arrested
Mr. Maache in his neighbourhood in the city. The officers failed to show him an arrest
warrant and to inform him of the reasons for his arrest. The officers, who had a search warrant
issued by the public prosecutor attached to Batna court, proceeded to take Mr. Maache to his
home, conduct a search thereof and seize his personal belongings, namely an Algerian flag,
a flag of the Amazigh people, his telephone and his electronic tablet.
9.
The officers then took Mr. Maache to an unknown location, where he was held for
nine days. Neither Mr. Maache nor his family was informed of his place of detention. It was
later discovered that Mr. Maache had been held in police facilities. According to the source,
Mr. Maache was held incommunicado, as he was prohibited from contacting his family or a
lawyer for the entire nine-day period that he spent in police custody. The source reports that,
during this period, Mr. Maache was not informed of his right to challenge the lawfulness of
his detention before a judicial authority.
10.
The source indicates that Mr. Maache’s time in police custody ended on 22 September
2021. On that day, he was brought before the public prosecutor at Batna court, who verbally
notified him of his indictment without a lawyer being present. The prosecutor requested the
opening of a judicial investigation based on the following charges: undermining territorial
unity, joining a terrorist group, publishing recordings promoting terrorism, publishing false
information with the aim of undermining public order and security, creating and managing
an online account or page in order to disseminate information likely to incite hatred in society,
and contempt of a constituted body, under articles 79, 87 bis 3, 87 bis 5, 144 and 196 bis of
the Criminal Code and article 34 of Act No. 20-05 of 28 April 2020 on Preventing and
Combating Discrimination and Hate Speech.
11.
That same day, Mr. Maache was brought before the investigating judge at Batna court
and heard for the first time. No lawyer, not even a State-appointed one, was present. The
investigating judge ordered Mr. Maache’s release under judicial supervision, but the public
prosecutor subsequently appealed that decision.
12.
According to the source, on 4 October 2021, the indictments chamber of Batna court
of appeal overturned the decision by Batna court to release Mr. Maache and ordered his
placement in pretrial detention. Mr. Maache was detained in Tazoult-Lambèse prison, which
is located in the Batna region and run by the Ministry of Justice.
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13.
The source reports that, during Mr. Maache’s detention in Tazoult-Lambèse prison,
his family was allowed to spend 30 minutes with him in the prison’s visiting room once a
fortnight.
14.
The source indicates that the indictments chamber of the court of appeal referred the
case to the criminal court of first instance on 17 April 2022 following the conclusion of the
judicial investigation.
15.
According to the information received, on 7 July 2022, after a trial lasting several
hours, Batna criminal court of first instance sentenced Mr. Maache to 10 years’ imprisonment
and a fine of 10,000 Algerian dinars and ordered the confiscation of the items seized during
the search of his home and the removal of his civic rights for a period of three years. He was
found guilty of publishing false information with the aim of undermining public order and
security, creating and managing an online account or page in order to disseminate information
likely to incite hatred in society, and of contempt of a constituted body. He was acquitted of
the charges of undermining territorial unity, joining a terrorist group and disseminating
recordings promoting terrorism. The prosecutor is reported to have requested the death
penalty during Mr. Maache’s trial before the criminal court of first instance.
16.
According to the source, Mr. Maache appealed his conviction. On 13 November 2022,
the criminal court of appeal acquitted Mr. Maache of four charges − joining a terrorist group,
disseminating recordings promoting terrorism, disseminating false information likely to
disturb public order, creating and managing an online account or page with the aim of
disseminating information likely to incite hatred in society, and contempt of a constituted
body − but found him guilty of undermining territorial unity. The criminal court of appeal
also upheld the decision to confiscate Mr. Maache’s seized belongings and increased the
period of time during which he would be deprived of his civic rights to five years. According
to the source, the criminal court of appeal reduced Mr. Maache’s sentence to 7 years’
imprisonment.
17.
The source reports that, one week after the verdict, Mr. Maache was transferred to the
prison run by the Ministry of Justice in the city of Bordj Bou Arreridj. In this prison, Mr.
Maache is able to receive visits from his family for a period of 15 minutes once a fortnight,
in contrast to the 30 minutes that he was granted in Tazoult-Lambèse prison.
18.
According to the source, Mr. Maache lodged an appeal in cassation with the Supreme
Court on 11 January 2023. The Supreme Court has yet to rule on this appeal.
19.
The source indicates that Mr. Maache remains in detention at Bordj Bou Arreridj
prison.
(iii)
Legal analysis
20.
The source argues that Mr. Maache’s detention is arbitrary under categories I, II, III
and V of the methods of work of the Working Group.
a.
Category I
21.
The source notes that a detention is arbitrary under category I when it is clearly
impossible to invoke any legal basis justifying the deprivation of liberty. According to the
source, in order for a deprivation of liberty to have a legal basis, it is not sufficient for there
to be a law that authorizes 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, arrest
order or equivalent document.2 Furthermore, under article 9 (2) of the Covenant, anyone who
is arrested should be informed, at the time of arrest, of the reasons for his or her arrest.3
22.
According to the source, Mr. Maache was arrested without being presented with an
arrest warrant or another document issued by a judicial authority and was not informed of the
reasons for his arrest at the time thereof. The source therefore concludes that there has been
a violation of article 9 (1) and (2) of the Covenant.
2 Opinion No. 4/2023, para. 64.
3 Ibid.
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23.
The source also claims that Mr. Maache was held incommunicado in police facilities,
as he was prohibited from contacting his family and having access to a lawyer. Mr. Maache
was questioned for nine days, from 14 to 22 September 2021, without having the right to
challenge the lawfulness of his detention before a judicial authority. The source therefore
concludes that there has been a violation of articles 2 (3) and 9 (4) of the Covenant. The
source also claims that Mr. Maache was not brought promptly before a judicial authority, and
that there was no justification for that delay, in violation of article 9 (3) of the Covenant.
b.
Category II
24.
The source recalls that a detention is arbitrary under category II when it results from
the exercise of fundamental rights or freedoms protected under international law, including
the rights to freedom of expression and freedom of association.
25.
The source alleges that Mr. Maache’s rights to freedom of expression and freedom of
association have been violated. The source states that Mr. Maache was arrested, detained,
prosecuted and convicted for peacefully campaigning for the cultural rights of the Amazigh
people and for the establishment of a pluralist and democratic political system and that, as
part of these activities, he merely expressed peaceful political opinions on social media and
during peaceful demonstrations for democracy and the cultural rights of the Amazigh people.
26.
The source states that the Criminal Code punishes the exercise of these rights, which
are recognized in, inter alia, article 19 of the Universal Declaration of Human Rights and
articles 19, 21 and 22 (1) of the Covenant, on freedom of expression, freedom of peaceful
assembly and freedom of association. According to the source, the national legal texts on the
basis of which Mr. Maache was charged, namely articles 79, 87 bis 3, 87 bis 5, 144 and
196 bis of the Criminal Code and article 34 of Act No. 20-05, are vague, very broad4 and
imprecise and were adopted and formulated without respect for the principle of lawfulness
and, therefore, in violation of article 15 (1) of the Covenant.
c.
Category III
27.
The source argues that Mr. Maache’s detention is arbitrary under category III and
recalls that due process is one of the fundamental aspects of the right to a fair trial.
28.
The source recalls that the minimum international standards of due process are
established in the Covenant, the Universal Declaration of Human Rights, the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules). According to the source, the Government has committed numerous
violations of Mr. Maache’s rights as provided for by these texts.
29.
The source states that Mr. Maache had no access to a lawyer, either of his own
choosing or appointed by the State, and was not informed of his right to a defence or to
remain silent at the time of his arrest or at any point during the period of time he spent in
police custody, including when he was being questioned by the police.
30.
The source adds that, on the day he appeared before the public prosecutor and during
his first appearance before the investigating judge, Mr. Maache received no legal assistance
from a lawyer of his own choosing or a lawyer appointed by the State. The source concludes,
therefore, that Mr. Maache’s rights to have adequate time for the preparation of his defence
and to communicate with counsel of his own choosing, which are guaranteed by
article 14 (3) (b) of the Covenant, were violated.
31.
The source also claims that Mr. Maache was arbitrarily detained because the
authorities violated his rights to receive visits from his family and to have medical
examinations before, during and after his time in police custody. According to the source,
Mr. Maache was held incommunicado, in total isolation from the outside world, and was
subjected to severe psychological pressure, forcing him to make confessions to the police
4 See communication DZA 12/2021, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26905.
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that were then used in the proceedings against him. Consequently, the source concludes that
there has been a violation of article 15 of the Convention Against Torture.
32.
In addition, the source alleges that the violation, from the outset of Mr Maache’s
detention, of his rights to a defence means that he has been denied his right to a fair trial and
that the proceedings against him are marred by irregularities.
33.
The source notes that the search of Mr. Maache’s home and his arrest were ordered
by the public prosecutor. However, the source recalls that the public prosecution service is
not a judicial authority and was not, therefore, empowered to authorize the search of
Mr. Maache’s home without first obtaining permission from such an authority. According to
the source, this act amounts to arbitrary interference with Mr. Maache’s home and privacy,
in violation of article 17 of the Covenant and article 12 of the Universal Declaration of
Human Rights.
34.
The source also points out that the Amazigh flag, taken by police officers during the
search, was used as evidence to prosecute and convict Mr. Maache.
d.
Category V
35.
The source claims that Mr. Maache’s detention is arbitrary under category V because
his arrest and detention are a consequence of his belonging to the Amazigh minority
(the Chaouis). According to the source, a detention can be considered arbitrary within the
meaning of category V when it is based on ethnic origin or language and aims towards or can
result in ignoring the equality of human beings.
36.
In the present case, the source claims that Mr. Maache’s arrest and detention were
motivated by his position as a defender of the cultural rights of the Amazigh people and his
active participation in all Amazigh cultural activities in the Tamazight-speaking regions of
Algeria. The source concludes that Mr. Maache is therefore being held for discriminatory
reasons, in violation of article 26 of the Covenant.
(b)
Response from the Government
37.
On 24 July 2023, the Working Group transmitted a communication concerning
Mr. Maache to the Government, requesting it to provide detailed information about him by
22 September 2023 and to ensure his physical and mental integrity.
38.
The Government requested an extension in accordance with paragraph 16 of the
Working Group’s methods of work, which was granted and lasted until 20 October 2023.
The Working Group regrets that, despite the granting of additional time, it has not received
a response from the Government.
2.
Discussion
39.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
40.
In determining whether the deprivation of liberty of Mr. Maache 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.5 In the present case, the Government
has chosen not to challenge the prima facie credible allegations made by the source.
(a)
Category I
41.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without a legal basis.
42.
According to the source, Mr. Maache was arrested by the police on 14 September
2021 without being shown a warrant or being informed of the reasons for his arrest. He was
5 A/HRC/19/57, para. 68.
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not informed of the reasons for his arrest for the first nine days of his detention. In addition,
the police officers, who had a search warrant issued by the public prosecutor attached to
Batna court, proceeded to conduct a search of Mr Maache’s home and seize his personal
belongings, such as an Algerian flag, a flag of the Amazigh people, his telephone and his
electronic tablet.
43.
Under article 9 (1) of the Covenant, no one may 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 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, an arrest order or equivalent document.6 Furthermore, article 9 (2) of the Covenant
states that anyone who is arrested must be informed, at the time of arrest, of the reasons for
his or her arrest and must be promptly informed of any charges against him or her. Respect
for these rights is essential for the other rights set out in article 9 of the Covenant, since all
individuals must know the reasons for their arrest in order to challenge it effectively and must
be brought before a court or magistrate in order to lodge an appeal.
44.
Noting the absence of a response from the Government, the Working Group considers
credible the source’s allegations that Mr. Maache was arrested without being shown a warrant
or equivalent document, outside of a situation of in flagrante delicto, and that his arrest was
thus in breach of articles 3 and 9 of the Universal Declaration of Human Rights, article 9 (1)
of the Covenant and principles 2 and 10 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment. The Working Group notes that a
search warrant signed by the public prosecutor does not satisfy the requirement to present a
valid arrest warrant as detailed above.7
45.
Furthermore, the Working Group considers that the arresting officers did not, at the
time of Mr. Maache’s arrest, inform him of the reasons for his arrest and failed to inform him
of the charges against him until 22 September 2021. The Working Group therefore finds a
violation of article 9 (2) of the Covenant.8
46.
The source also claims that Mr. Maache did not appear before a judge until
22 September 2021, nine days after his arrest on 14 September 2021. During that period, he
was detained and questioned without being given the opportunity to petition a court to rule
on the lawfulness of his detention. He was held incommunicado, and neither he nor his family
was informed of his place of detention.
47.
Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge
must be brought “promptly” before a judge. The Working Group recalls that, according to
the Human Rights Committee, longer detention in the custody of law enforcement officials
without judicial control unnecessarily increases the risk of ill-treatment and must remain
absolutely exceptional and be justified under the circumstances.9
48.
In the present case, the Working Group notes the absence of any response from the
Government that would justify the detention of Mr. Maache for nine days without judicial
control. The Working Group therefore finds a violation of article 9 (3) of the Covenant.
49.
The Working Group also notes the source’s allegations, which are uncontested by the
Government, that Mr. Maache was detained in an unknown location from the date of his
arrest on 14 September 2021 until his hearing on 22 September 2021 and was prevented from
contacting a lawyer and his family. The Working Group recalls that holding persons
incommunicado violates their right under article 9 (4) of the Covenant to challenge the
lawfulness of their detention before a court.10 The Working Group considers that, by holding
Mr. Maache incommunicado for nine days after his arrest, the authorities deprived him of the
right to challenge the lawfulness of his detention before a court and violated article 9 (4) of
the Covenant. Furthermore, in view of the source’s allegations, which are uncontested by the
6 See, inter alia, opinion No. 4/2023, para. 64.
7 Opinion No. 63/2022, para. 111.
8 Human Rights Committee, general comment No. 35 (2014), para. 30.
9 Ibid., para. 33.
10 See, inter alia, opinions No. 45/2017, No. 46/2017, No. 79/2017, No. 11/2018 and No. 35/2018.
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Government, that neither Mr. Maache nor his family was informed of his place of detention,
the Working Group considers that Mr. Maache was subjected to enforced disappearance,
which constitutes a particularly aggravated form of arbitrary detention.11 The Working Group
recalls that enforced disappearance violates numerous substantive and procedural provisions
of the Covenant, including articles 9 and 14, and is prohibited under international law.
50.
In this regard, the Working Group is concerned about the source’s allegations, which
are unrefuted by the Government, that, once Mr. Maache had appeared before the judge, his
family was allowed to visit him for just 30 minutes every two weeks from October 2021 to
July 2022. Since then, the duration of the visits has reportedly been reduced to 15 minutes
every two weeks. The Working Group recalls that certain conditions of detention (such as
denial of access to counsel and family) may result in procedural violations of article 9 (3) and
(4) of the Covenant.12 According to principles 15, 17 and 19 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment and rule 58 of the
Nelson Mandela Rules, communication of detained or imprisoned persons with the outside
world, and in particular their families or counsel, should not be denied for more than a matter
of days, subject to reasonable conditions. In addition, they may not be denied the right to
inform or tell the authorities to inform their families or other persons of their choosing of
their arrest. The Working Group urges the Government to ensure that Mr. Maache receives
regular family visits of a reasonable duration in order to avoid further violations of his rights.
51.
In view of the above findings, the Working Group considers Mr. Maache’s detention
to have 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
52.
The source asserts that Mr. Maache’s detention is arbitrary under category II, since it
resulted from his exercising fundamental rights and freedoms protected by international law,
including the right to freedom of expression, which is protected by article 19 of the Covenant
and article 19 of the Universal Declaration of Human Rights, and the rights to freedom of
peaceful assembly and freedom of association, which are protected by articles 21 and 22 of
the Covenant and article 20 of the Universal Declaration of Human Rights.
53.
According to the source, Mr. Maache was arrested, detained and convicted because of
his peaceful involvement in efforts to promote a pluralist democracy and the cultural rights
of the Amazigh people.
54.
Article 19 of the Covenant and article 19 of the Universal Declaration of Human
Rights provide that everyone has the right to freedom of expression. This right includes the
right to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
55.
The Working Group notes that Mr. Maache was previously arrested in 2019 and
accused of undermining territorial unity by carrying a flag of the Amazigh people. He was
subsequently acquitted of those charges. According to the source, Mr. Maache participated
in peaceful demonstrations in support of democracy and the Amazigh people and culture. He
is also said to be a poet and to write Tamazight poems with the aim of promoting Amazigh
culture. The Working Group considers that Mr. Maache’s efforts to defend the rights of the
Amazigh people, including his participation in peaceful demonstrations, fall within the scope
of his right to freedom of expression guaranteed by article 19 of the Covenant and article 19
of the Universal Declaration of Human Rights.
56.
Moreover, articles 21 and 22 of the Covenant guarantee the right of peaceful assembly
and the right to freedom of association. Article 21 of the Covenant provides that no
restrictions may be placed on the exercise of the right of peaceful assembly other than those
imposed in conformity with the law and which are necessary in a democratic society in the
interests of national security or public safety, public order (ordre public), the protection of
11 Human Rights Committee, general comment No. 35 (2014), para. 17. See also opinion No. 37/2021,
para. 65.
12 Human Rights Committee, general comment No. 35 (2014), para. 59.
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public health or morals or the protection of the rights and freedoms of others. Article 22 of
the Covenant states that everyone must have the right to freedom of association with others,
including the right to form and join trade unions for the protection of his or her interests.
According to the source, Mr. Maache participated in the peaceful pro-democracy
demonstrations organized by the Hirak movement from 2019 onward.
57.
The Working Group notes that the Government chose not to refute the source’s
specific allegations despite being given the opportunity to do so. Although Mr. Maache was
charged with terrorism-related crimes, the Government has provided no information to
demonstrate that he was arrested for committing violent acts rather than for peacefully
exercising his rights.
58.
Accordingly, the Working Group concludes that Mr. Maache’s detention resulted
from the exercise of his rights to freedom of expression, peaceful assembly and freedom of
association, in violation of articles 19 and 20 of the Universal Declaration of Human Rights
and articles 19, 21 and 22 of the Covenant. Mr. Maache’s arrest and detention are thus
arbitrary under category II.
59.
In addition, according to the source, Mr. Maache was accused of joining a terrorist
group, on the basis of article 87 bis of the Criminal Code. The Working Group has previously
expressed concern about the vague and overly broad wording of this article.13 The Working
Group is concerned that the definition of terrorism in article 87 bis of the Criminal Code is
inconsistent with the definitions proposed by the Security Council and the former holder of
the mandate of Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism.14 The imprecise definition of terrorism
contained in that article and the negative repercussions that it could have on fundamental
rights were also highlighted in 2018 by the Human Rights Committee in its concluding
observations on the fourth periodic report of Algeria.15
60.
The Working Group reiterates that the principle of legality enshrined in article 15 of
the Covenant requires laws to be formulated with sufficient precision so that individuals can
have access to and understand the law and regulate their conduct accordingly. The legal basis
for justifying detention must be accessible, understandable, non-retroactive and applied in a
consistent and predictable way to everyone equally.16 The Working Group reiterates that
article 87 bis of the Criminal Code defines terrorist offences in overly broad terms, which
may, as in the present case, proscribe the peaceful exercise of the rights guaranteed by
international law. The Working Group recalls that, in certain circumstances, the laws are so
vague and broadly worded that it is impossible to invoke any legal basis justifying the
deprivation of liberty.
61.
The Working Group refers the case to the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism.
(c)
Category III
62.
Given its finding that the detention of Mr. Maache was arbitrary under category II,
the Working Group emphasizes that no trial should have taken place. However, according to
the source’s allegations, which are uncontested by the Government, Mr. Maache was tried
and convicted and is currently serving his sentence after the court of appeal sentenced him to
7 years’ imprisonment, upheld the decision to confiscate the items seized during the search
of his home and increased the period of time during which he would be deprived of his civic
rights to five years.17 Mr. Maache is now awaiting the Supreme Court’s decision after lodging
his appeal in cassation on 11 January 2023.
13 Opinion No. 15/2022, para. 77.
14 See communication DZA 12/2021, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26905.
15 CCPR/C/DZA/CO/4, paras. 17 and 18.
16 Opinion No. 4/2023, para. 76.
17 The Working Group notes that it has no information on the decision made by the court of appeal
regarding the fine of 10,000 Algerian dinars imposed by the court of first instance.
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63.
According to the source, Mr. Maache received no legal assistance after his arrest or
during his detention, including when he was being questioned by the police. He was
questioned without being informed of his right to legal assistance or his right to remain silent.
Furthermore, he was denied his right to a lawyer during his appearance before the public
prosecutor and his first appearance before the investigating judge on 22 September 2021,
which prevented him from having access to his case file and adequately preparing his
defence. The Government has chosen not to refute these allegations despite being given the
opportunity to do so.
64.
Article 11 (2) of the Universal Declaration of Human Rights, article 14 (2) of the
Covenant and principle 36 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment provide that everyone charged with a criminal
offence must be presumed innocent until proved guilty according to law at a fair and public
trial at which they have had all the guarantees necessary for their defence. Article 14 (3) (b)
of the Covenant provides that all individuals charged with a criminal offence must have
adequate time and facilities for the preparation of their defence and to communicate with
counsel of their own choosing. In addition, article 14 (3) (d) guarantees individuals the right
to defend themselves in person, to have legal assistance of their own choosing or to have
legal assistance assigned to them, and without payment if the individual does not have
sufficient means to pay for it. These rights are also protected by principles 17 and 18 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. It is therefore incumbent upon States to permit and facilitate access to a
lawyer, who should, in principle, be of the detained person’s choosing, and to do so from the
outset of his or her detention.18
65.
In the present case, Mr. Maache was denied access to a lawyer from the time of his
arrest until his first appearance before the investigating judge on 22 September 2021, which
also took place without his lawyer being present. In the absence of a response from the
Government, the Working Group considers that the source has presented credible allegations
that demonstrate that Mr. Maache was denied his right to a lawyer following his arrest and
during his detention. The Working Group notes in particular that Mr. Maache was unable to
meet with his lawyer when he appeared before the public prosecutor and then before the
investigating judge. The Government thus denied Mr. Maache his right to prepare his defence
with the assistance of a lawyer of his own choosing, in violation of, inter alia, article 14 of
the Covenant.
66.
The source also claims that Mr. Maache was held incommunicado for the first nine
days of his detention, during which time he was held in total isolation and subjected to severe
psychological pressure, which led him to make confessions to the police. These confessions
were then used in the proceedings against him.
67.
The Working Group emphasizes that the onus is on the Government to demonstrate
that it has not exerted pressure on the detained person and that no improperly obtained
evidence was used in the proceedings.19 The Working Group also stresses that it is absolutely
prohibited, under article 14 (3) (g) of the Covenant and article 2 of the Convention against
Torture, to which Algeria is a party, to subject a person to torture or ill-treatment to obtain a
confession. Any use of evidence obtained 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.20
68.
Noting the absence of a response from the Government, the Working Group considers
credible the source’s allegations that Mr. Maache was forced into making a statement in
which he confessed his guilt and that this statement was subsequently used in the proceedings
against him. The Working Group therefore concludes that Mr. Maache’s rights not to confess
guilt and to a fair trial, guaranteed by article 14 of the Covenant and articles 10 and 11 of the
Universal Declaration of Human Rights, have been violated.
18 Human Rights Committee, general comment No. 35 (2014), paras. 34 and 35.
19 Opinion No. 79/2022, para. 72.
20 Opinion No. 4/2023, para. 91.
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69.
The Working Group notes the similarities between the present case and other cases
that it has previously examined and refers the case to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment.21
70.
Lastly, the source argues that the search of Mr. Maache’s home amounts to arbitrary
interference with his home and privacy and that the flag of the Amazigh people confiscated
during the search was used as evidence in the proceedings against him. Furthermore,
according to the source, the fact that the public prosecution service is not a judicial authority
means that it was not empowered to authorize the search of a home. The Working Group
recalls that it has consistently refrained from taking the place of the national judicial
authorities or acting as a kind of supranational tribunal when it is urged to review the
application of national law by the judiciary or other authorities.22 Noting that the source failed
to provide sufficient information demonstrating that the search had not been duly authorized
and explaining how the seized items were used in the proceedings against Mr. Maache, the
Working Group considers that it is not in a position to formulate conclusions in this regard.
71.
In the light of all the above, the Working Group concludes that the violations of
Mr. Maache’s right to a fair trial are of such gravity as to give his detention an arbitrary
character under category III.
(d)
Category V
72.
According to the source, Mr. Maache was targeted because of his political activism
and efforts to promote the cultural rights of the Amazigh people. In addition, the source
claims that Mr. Maache was arrested and detained because he belongs to an ethnic minority,
namely the Amazigh people.
73.
The Working Group takes into account a number of non-cumulative factors in order
to determine whether a deprivation of liberty is discriminatory in nature. The factors taken
into account by the Working Group include: (a) whether the deprivation of liberty is part of
a pattern of persecution against the detained person, including, for example, through previous
detentions; (b) whether other persons with similarly distinguishing characteristics have also
been persecuted; or (c) whether the context suggests that the authorities have detained a
person on discriminatory grounds or to prevent them from exercising their human rights.23
74.
The source claims, and the Government does not contest, that Mr. Maache had been
arrested on a previous occasion in 2019 for carrying the flag of the Amazigh people during a
peaceful Hirak demonstration. His arrest was said to have been ordered by the former Chief
of Staff of the Algerian army, who had ordered the arrest of all individuals carrying the
Amazigh flag.
75.
In this context, and in the absence of any information from the Government that might
justify the arrest and detention of Mr. Maache, the Working Group considers that the
deprivation of liberty of Mr. Maache is part of a pattern of him being targeted because of his
identity and activism. The Working Group also highlights its findings in other cases brought
before it in which other activists and members of the Amazigh community had been
arbitrarily detained in Algeria, particularly because they belonged to the same ethnic minority
as Mr. Maache and because of their political activism.24
76.
Consequently, the Working Group finds credible the source’s allegations that Mr.
Maache was deprived of his liberty on discriminatory grounds, that is, on the basis of his
national, ethnic or social origin and the political opinions that he expressed through his
participation in demonstrations to promote the rights of the Amazigh people and by
displaying and having an Amazigh flag in his home. The Working Group therefore finds a
violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1)
and 26 of the Covenant. Mr. Maache’s deprivation of liberty is thus arbitrary under
category V.
21 Ibid.
22 See, for example, opinions No. 40/2005, No. 15/2017, No. 16/2017, No. 49/2019 and No. 58/2019.
23 A/HRC/36/37, para. 48.
24 Opinions No. 34/2017, No. 53/2020, No. 15/2022 and No. 79/2022.
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11
77.
The Working Group refers the case to the Special Rapporteur on minority issues.
3.
Disposition
78.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Azzedine Maache, being in contravention of
articles 2, 3, 7, 9, 10, 11, 19, and 20 of the Universal Declaration of Human Rights
and articles 2, 9, 14, 19, 21, 22 and 26 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories I, II, III and V.
79.
The Working Group requests the Government of Algeria to take the steps necessary
to remedy the situation of Mr. Maache without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the Covenant.
80.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Maache immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
81.
The Working Group requests the Government to bring its laws, particularly article 87
bis of the Criminal Code, into conformity with the recommendations made in the present
opinion and with the commitments made by Algeria under international human rights law.
82.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Maache and to take appropriate measures against those responsible for the violation of
his rights.
83.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of human rights
and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur on
minority issues, for appropriate action.
84.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
85.
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. Maache has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Maache;
(c)
Whether an investigation has been conducted into the violation of
Mr. Maache’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.
86.
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.
87.
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
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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.
88.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.25
[Adopted on 13 November 2023]
25 Human Rights Council resolution 51/8, paras. 6 and 9.