Observations on the periodic report to the Human Rights Committee
Alkarama for Human Rights and Algeria-Watch, 23 July 2007
Algeria was required by the Human Rights Committee to issue its third periodic report in June 2000. It did not do so, however, until 22 September 2006, six years later. The period taken into account in our observations thus stretches from 1998 until today.
The human rights situation has changed a lot over this period.
The most striking fact concerns the massacres, which are no longer “widespread” as the Committee called them in 1998.
Forced disappearance, also systematic in 1993-1997, has practically stopped, although a very large number of people arrested remain in secret detention sometimes for months on end, amounting to disappearance.
Systematic violations of human rights committed by State agents are also no longer as massive as at the time covered by the second periodical report, although they still continue. Torture is still routinely practiced.
Serious restrictions on public freedoms continue to be recorded, and important violations of international commitments have been added to the list, notably through the adoption of two legal texts together termed the “amnesty” although they are not officially defined as such.
It must also be noted that despite the Committee’s recommendations, independent inquiries into the massacres have never been set up, as we see below. The same goes for the Committee’s other recommendations, such as putting independent bodies into place to examine violations, setting up a credible system to monitor the treatment of detainees, bodies to help find the disappeared, etc., which have had no concrete or credible results.
In consequence, the periodic report presented by the Algerian government appears in many respects to bear little relationship to the reality of a situation dominated by the “war on terror” used to justify the abuses and mistakes committed. The government’s action is characterised by a lack of transparency at every level.
I. Follow-up of the concerns and recommendations of the Human Rights Committee during the period covered by Algeria’s 2nd periodic report
The Human Rights Committee had adopted some final observations during its session of 29 July 1998 after examining Algeria’s 2nd periodic report. In these observations, the Committee noted that “it does not provide sufficient specific data on the prevailing human rights crisis” and that “many of [the Committee’s] questions were not fully answered by the Delegation”. Moreover, the Algerian government did not follow up on many of the Committee’s recommendations:
1. The « widespread massacres » that concerned the Committee were not adequately dealt with by the Algerian authorities. These massacres have continued to afflict Algerians, even though the number of victims has decreased from year to year and is no longer comparable to the macabre tolls of 1996-1998. During 1999-2002, many killings of villagers were perpetrated, each claiming some 10 to 20 victims1. Afterwards, the number of victims decreased, but the massacres have never stopped. Attacks by unidentified armed groups, notably at fake roadblocks, have recurred over the last two years. While these are regularly presented as acts committed by terrorists, no credible inquiry has made it possible to confirm who has really committed and/or ordered these deeds.
Among these massacres must also be counted those committed during military offensives where responsibility is clearly established. We take, for example, the army’s attack in the Seddat mountains, in the wilaya of Jijel: a group consisting of many women and children took refuge in a cave to escape the military offensive that began in March 2006 in this region. On 9 May, the cave was taken by assault, and the testimony of members of the civil protection indicate the use of chemical weapons. “The bodies were rigid, petrified in positions which indicated to these agents that toxic gases had caused their deaths. They report, for example, seeing a seated women feeding her child with a bottle, with two children sitting at her side, all four frozen in the position they were in when death surprised them.” The final operation, which lasted several days, culminated, according to the official report, in the death of 52 people, including 22 children, seven women and 23 presumed terrorists, of whom only three were definitively identified as part of an armed group. 2
The Algerian authorities have not proceeded to make “proper investigations” by “an independent body” in most massacre cases. The government’s claims in point 80 must be the object of deeper independent enquiries, because many testimonies and facts contradict them. It is true that sometimes the guilty have been named, tried and condemned in a swift trial, as with the Bentalha massacre (one of the largest massacres committed in September 1997) in early August 2004, which lasted only a single day. One of those found responsible, Fouad Boulemia, claims to be innocent and claims to have confessed under torture. He had already been condemned to death for the assassination of Abdelkader Hachani, one of the leaders of FIS, in November 1999. At no point did the massacre’s survivors confront the 9 suspects tried that day.
The government’s response to the concerns and recommendations formulated by the Committee does not appear to us to be consistent with its international commitments as a state party to the Covenant. Claiming that the information presented is authentic does not guarantee its correctness, given that it does not result from any public, transparent enquiry. Stating that these crimes were committed by terrorists does not relieve the government of the obligation to set up an independent enquiry and seek the truth, nor, whatever the cause, of its duty to protect the population. The role played by the armed forces has never been examined. It has always been claimed that the army intervened “as soon as possible” and thus limited the number of victims. But many troubling points contradict this version, including, in certain cases, the fact that military barracks were right next to the scenes of the massacres.
2. The “self-defence groups”, about which the Committee wanted to obtain more extensive information in order to evaluate their importance, their function, and the controls on them, are a matter of real concern. These groups were not set up in a transparent manner. There are many texts and laws governing them, but these were adopted well after many “militias” had been founded. The legal framework was not established until January 1997, whereas civilian groups formed into militias were operating since 1993 in Kabylie and in the areas of Lakhdaria, Chlef, Relizane, etc.
The Algerian government affirms in its report (point 84) that “these groups are not set up to fight terrorism, which remains the exclusive responsibility of the forces constituted by the State.” They claim they have only an “essentially preventative” role in protecting infrastructure. But it is clear from very many testimonies and reports that the “self-defence groups” have been a pillar of the war on terror, notably in regions where the army did not have a strong presence.
Some of the “self-defence groups” were in fact defensive in character, but alongside them were “patriot” groups consisting in particular of former members of the National Liberation Front (FLN) who knew the area well. But above all, these militias were commanded by local bosses, who became true “warlords”, linked both to military officials and to politico-economic circles. These militias were frankly offensive in character, taking the fight to the families of those engaged in the armed struggle. Many people were forced by the authorities to take up arms, and whole villages were blockaded into agreeing to form militias.
The militia run by one Zidane El Mekhfi at Bouderbala, in the wilaya of Bouira, was set up in 1994 and received extensive media publicity both on State television and in the private press close to the government. Habib Souaidia, a member of the special forces stationed in the Lakhdaria region in 1994, reports: “From 1995 on, the villagers of Bouderbala started to wage their own war across the region […] Initially, they had three or four hundred men at their disposal. Consisting of villagers with no experience in counterterrorism, this militia did not settle for protecting villages: it also tracked terrorists in the adjoining maquis. El Mekhfi and his men attacked all the villages where some youth had joined the maquis, sowing death and desolation in their path.” 3
In its 1997 report, Amnesty International clearly noted this offensive character, increasingly publicly encouraged: “Initially the authorities tended to deny the existence of militias or to play down their role, but from the end of 1995 they openly encouraged the civilian population to take up arms and organize themselves in militia groups. State television gave coverage to the activities of militias, praising their role in « combatting and eradicating terrorism », and even ran « advertising » spots encouraging men to form militias; the motto was rijal khuliqu li-l-watan (men born for their motherland).” The organisation notably states that “in addition to guarding their villages and communities to defend them from attacks, they were increasingly involved in fully-fledged military operations in their region and elsewhere. In some areas they virtually replaced the security forces – who according to the local population had been absent and had failed to protect them from attacks by armed opposition groups – setting up roadblocks and checkpoints, and organizing ambushes and « anti-terrorist » operations. They also participated increasingly in such operations alongside the army and security forces.” 4
It must be noted that according to press articles, some “self-defence groups” were dissolved, and their members recycled in guard societies. New militias were nonetheless sometimes created during the period covered by the periodic report5. In September 2005, the Minister of the Interior said that the dismantling of “self-defence groups” was not “the order of the day”. 6
The communal guard was also created in the context of the war on terror. The 50,000 to 80,000 men enrolled have received two months’ basic training by the gendarmerie, and wear uniforms. They are stationed inside built-up areas. It appears that there are no plans to dismantle these either.
3. The decree of 9 February 1992 establishing the State of Emergency was extended on 6 February 1993, but is still in force. It continues to provide the legal framework justifying restrictions on principals of constitutional and international law. The first observation on this matter is that the State of Emergency intended to last one year was renewed just once, in 1993, for an indeterminate time span; afterwards, it has neither been debated nor renewed by decree. Prof. Mohand Issad, professor of international public law at the University of Algiers, who was appointed by President Bouteflika to chair an commission of enquiry following the serious events that rocked Kabylie in 2001, has analysed (unpublished) edicts and decrees establishing responsibilities and powers regarding the maintenance of security. He establishes that “the chronology of the texts allows one to note a subtle slide from a state of emergency to something more like a state of siege. The powers given by the 1993 decree to commanders of military regions are personal powers, which is characteristic of a state of siege.” 7
To this state of siege which dares not speak its name has been added the law on “subversion and terrorism” promulgated on 30 September 1992. This was abrogated in February 1995, but its most important provisions were integrated into the Penal Code. The Algerian government affirms in its report that “certain provisions of this law” were incorporated. It would be more appropriate to ask which of its provisions were not incorporated. The Committee noted that among the provisions included were the extension of the definition of “crimes constituting terrorist or subversive acts”, the prolonging of detention without trial, and the lowering of the penal age of discretion to 16. Other points include the doubling of penalties for actions qualified as terrorism, the authorisation of criminal police officers to issue all warrants or arrests, day and night, in every place in the country.
Questions: What are the decrees or other legislative or regulatory texts governing the treatment of the security situation, and why have they not been published? Has the interministerial decree (National Defence/Interior) of 25 July 1993 to which the aforementioned commission refers been made public?
The government claims (points 7 and 8) that the length of custody without trial only exceptionally exceeds 48 hours. But in reality, people suspected of terrorism of of supporting terrorism are detained for a much longer period, often more than 12 days and sometimes several months, during which they are held in secret without contact with the outside world and tortured. We will return to this point further on.
4. Forced disappearances remain a serious concern despite the time that has passed since the Committee’s last observations. The state has not responded appropriately to its recommendations and nothing serious has been done to learn the fate of, open enquiries into, or start legal proceedings against the presumed authors of thousands of recognised cases of forced disappearance, nor to punish those responsible for this serious crime. The government has made further efforts to evade this question. Without recognising any culpability in the issue – it has launched the “slogan”: the State is responsible, but not culpable – it claims to deal with the social concerns of the families, often in absolute poverty after the disappearance of their sole supports, with a view towards compensating them.
An ad hoc body has been set up by the President of the Republic to make a list of the disappeared and their families. This body does not have a mandate to make an enquiry and can in fact only base itself on the details provided by the families and the record offices set up in each wilaya according to the recommendations of, notably, the Committee, and consult the security forces for further information. The president of the ad hoc body, Farouk Ksentini, who is also president of the National Consultative Commission for the Promotion and Protection of Human Rights (CNCPPDH), established by presidential decree and succeeding the National Huma Rights Observatory, sent his report to the President of the Republic in March 2005 without giving public opinion a chance to learn of it. He reported to the press that the number of disappeared was 6146. Is this the figured given in the report?
The question is justified since Mr. Ksentini claimed later that half the disappeared – ie, in theory, those cases examined and confirmed – were really fake-disappeared8 – people who supposedly went into the mountains to join armed groups or fled abroad.
Mr. Ksentini later announced on 23 June 2006 on national radio that “183 people taken to be disappeared had been found again alive and removed from the list.” Answering the question of a journalist from the Arabic-language daily El Khabar, Mr. Ksentini specified the following June 25th as the date when these cases “had been removed from the list by their own request or by the request of their parents and relatives”, who had supposedly “presented documents proving that they were still alive.”
Neither the list of 6146 disappearances for which the security forces are to blame counted by the CNCPPDH, nor that of the 183 people supposedly rediscovered, have been made public, despite the requests made by associations of the families of the disappeared and by NGOs.
Questions: Does the treatment of the issue of the disappeared not constitute a violation of the Covenant? Why has Mr. Ksentini’s report not been published?
II. Observations and questions on certain points discussed in the 3rd periodic report on Algeria
1. Article 4
About the State of Emergency
The Algerian government states that the State of Emergency was put into place fully respecting article 4 of the Covenant – that is, that this exceptional measure which has lasted more than 15 years already “does not interrupt the pursuit of the democratic process, while the freedom to exercise basic rights and liberties continues to be guaranteed.” To back this claim up, the government insists that the most coercive measures taken under the state of emergency have been lifted. Among the examples given we find warrants and custody, limitations on the freedom of assembly, of association, and of expression.
But instruments allowing them to reduce the field open to civil society for action were put in place before the State of Emergency was promulgated. The army’s participation in carrying out missions related to the safeguarding of public order, outside of the exceptional situations provided for by the Constitution, has been decided since late 1991. The army can be mobilised, on the head of state’s decision, after preliminary consultation with the competent civil and military authorities, to respond to needs for protection and help to the population, for territorial security, and for maintaining order.9 This law was clarified by a decree of 21 December 1991, notably regarding the definition of civil and military authorities. The civil authorities are represented by the Minister of the Interior and local communities, and the military authorities by the Minister of Defence and the National Popular Army’s Chief of Staff10. These texts are still in force today.
The day after the state of emergency was proclaimed, on 10 February 1992, an interministerial decree (Defence and Interior) was issued, regarding the “general organisation of measures for preserving public order under the State of Emergency.” Recall the words of Prof. Mohand Issad, who chaired a commission of enquiry into the events that rocked Kabylie in Spring 2001: the decree “maintains the powers of the Minister of the Interior as “responsible for the maintenance of order on the national level”, which “ensures the general management of the implementation of measures for the preservation and maintenance of public order…” (Article 1.) He is assisted by a general staff composed of representatives from the forces participating in the maintenance of order (Article 2). The commanders of the military regions and of the ground forces for the wilaya of Algiers “are the delegated military authorities charged with managing operations for re-establishing public order… in accordance with article 9 of decree 92/44 of 9 February 1992” (article 3.) The wali exercises the prerogatives regarding public order “provided by the terms of article 4 of decree no. 92/44 above…” He “activates” the services of the police and national gendarmerie on the wilaya’s territory falling under his authority (article 6).
However, article 4 of the decree of 9 February 1992 targets preservation measures as much as measures for the reestablishment of public order, which falls under the authority of the Minister of the Interior, for part or all of the national territory, and of the wali for his district. The decree of 10 February 1992 does not specify the powers of the minister for re-establishing order. This decree introduces a distinction between, on the one hand, the preservation and safeguarding of public order, and on the other the reestablishment of public order; the former falls to the civil authorities, the latter to the military ones. The distinction is extremely difficult to see on the ground.
Moreover, it introduces a double power, of the civil authorities to preserve and safeguard public order, and of the military authorities to re-establish public order, whether by request of the Minister of the Interior (under the first reading) or by virtue of article 3 of the decree of 10 February 1992 (under the second.) It seems that the second reading is correct, otherwise this decree does not make much sense. But this is contrary to the decree, constituting a violation of the rule of hierarchy of norms. The question that immediately arises is which authority evaluates and decides whether the situation is one of preserving public order or re-establishing it.” 11
This confusion between civil and military powers allows the executive power’s intervention in political and social life to be passed over in silence.
In reality, a whole judicial arsenal preceded the promulgation of the State of Emergency, already considerably reducing public freedoms. In December 1991, for instance, a law on gatherings and public demonstrations was issued, and remains in force.12 It modifies the provisions of the 1989 law governing this subject. The notion of a public gathering is redefined there, and the central administration (the governor) rather than the local (the mayor) is assigned to authorise such demonstrations.
The restrictions that this exceptional situation leads to are everywhere, even if they are often insidious. Let us not forget that the Minister of the Interior and the territorially competent governor can, under the State of Emergency decree, “limit or forbid the movement of people and vehicles in given places at set times” and order by decree “the provisional closing of theatres, gathering places of any sort and forbid any demonstration that might disturb public order.”
By virtue of these exceptional legal provisions, peaceful marches or any form of public demonstration have been forbidden in Algiers since 18 June 2001. Likewise, a number of public gatherings in other regions have not been permitted. Requests for permission for demonstrations protesting against the war in Iraq in 2003 and in Lebanon in 2006 were not granted. An international seminar on “Truth, Peace, and Reconciliation” planning to gather experts, international and Algerian NGOs, and the families of victims on 8 February 2007 was stopped at the last miniute when the speakers and participants were already there. Foreign experts were not permitted to come to Algeria, such as Mr. Roberto Garretón, invited on this occasion as an expert on transitional justice, a Special Rapporteur of the United Nations on the human rights situation in the Democratic Republic of Congo, and a member of ODEP, the Chilean organisation for the defence of political prisoners’ families.
The Charter for Peace and National Reconciliation issued in August 2005 and put to a referendum on 29 September was not debated at all due to the public authorities’ lockdown. Those who criticised the text were silenced. The police arrested those who collected signatures. The radio and television completely ignored them. The political parties or associations that attempted to rent rooms to organise meetings about this were refused.
Three experts from DRI – Democracy Reporting International – who wanted to go to Algeria in 2006 to evaluate the electoral frameworkin in Algeria did not receive a visa. Even a march planned in Annaba on 8 November 2006 by the MSP, a political party in the presidential alliance, to protest insecurity in this city, was not permitted to do so. The public gathering on the problem of peace and national reconciliation, planned for Illilten in early September 2005 by the Algerian League for the Defense of Human Rights (LADDH) could not take place because the public authorities would not allocate it a room. The Raï singer Cheb Azzedine and his editor were condemned to 12 months in prison for “defamation and contempt of constituted bodies” as a result of his song “Shouf el hogra shouf” (“Look at the oppression, look.”) The two were pardoned in July 2005 after 4 months in prison. These are just a few examples from a long list of restrictions and bans.
Most political parties, including those in the “presidential coalition”, and associations demand an end to the State of Emergency.
Question: If this state of emergency is no longer motivated, public order and security having been restored as the periodic report seems to suggest, then why hasn’t it been ended?
2. Article 5
Regarding the “Civil Concord” law and the “Ordinance implementing the Charter for Peace and National Reconciliation”
The Algerian government defends itself against the criticism that these texts restrict or abrogate fundamental rights. We summarise here the basic points contained in these two judicial instruments.
The Civil Concord law promulgated on 13 July 199913 only concerns combatants implicated in “acts of terrorism or subversion” and provides for such among them as give themselves up to the authorities within six months of the law being promulgated either to be exempted from prosecution, or to be put on probation, or to face a reduced penalty. Exemption from penal prosecution, itself constituting impunity, is proposed for those who have not committed collective massacres, rapes and setting off explosions in public places. Exemption is subject to the approval of the “competent authorities”14, whom it does not define. It must therefore be supposed, given the sensitivity of the subject, that this refers to the officials of the national army. It provides for this category of persons’ civil rights to be suspended for a period of ten years.15
Probation, for its part, blocks penal prosecution for a probationary period of three to ten years.16 Here again, only those who have not committed blood crimes, except for those who served the state in the war on terror, are eligible.17 Probation is accompanied by deprivation of civil rights during the probation period, except where the person in question is “admitted to serve the State in the struggle against terrorism.”18 The probation committee is composed of representatives of the security organs of the state (the army, courts, gendarmerie, and police) and a representative of the lawyer’s bar.19
The final measure concerns the halving of penalties, notably for those who have committed blood crimes.
Karim Kettani, a Moroccan jurist, observes that “the exoneration and probation follow an administrative procedure from which the judiciary is excluded. It is not assured that the deliberations and decisions will be public either. The victims of acts blamed on people benefiting from these two measures as well as the reduction of the penalty do not have the right to be heard, and cannot act as a civil party against the people who were exonerated or successfully passed their probationary period. Finally, only the reduction of the penalty is performed within a judicial framework. All this in a context of de facto impunity for members of the security forces and the so-called “Patriot” militias. This not very transparent framework is thus conducive to the authorities in charge of exoneration or probation taking into consideration political factors, possibly thus emptying the provisions of the Concord law of their restrictive content, notably regarding the conditions to be fulfilled for receiving exoneration or probation. It must also be noted that the absence of a serious independent enquiry conducted into the very many collective massacres and assassinations makes the determination of whether or not a candidate for these was involved – which, as we have seen, should exclude him from the benefits of exoneration or probation – at least a matter of chance.” 20
In the framework of this “civil concord”, a presidential decree accords an “amnesty pardon” to the fighters of the Islamic Salvation Army (AIS) who are in fact exonerated. The list enumerating the beneficiaries of this measure was supposed to have been attached to this decree, but this has not happened, at least not publicly. The suspension of civil rights is also not enacted for this category of people. It must be added that according to the newspaper articles and declarations of Algerian politicians, the terms of this law were applied after the six months’ period. But there too the criteria for granting candidates exoneration or probation were not made public.
The Ordinance implementing the Charter for Peace and National Reconciliation was promulgated in February 2006.21 It provides for ending public action against any person who gave himself up to the authorities between the end of the period provided for by the previous law, 13 January 2000, and the date on which the new ordinance was promulgated22, for those who give themselves up within six months23, or detainees not permanently condemned, on condition of not having committed collective massacres, bombings, or rapes.24 In such cases, exemption from prosecution may be decided by the government prosecutor.25 Commutations or reductions of penalties are provided for in certain cases.26
In the context of “measures for consolidating the national reconciliation”, it repeals measures for depriving rights established against people who have benefited from the provisions of the Civil Concord law.27 Nonetheless, the ordinance provides for a ban from all political activity for those who “are responsible for the exploitation of religion that has led to the national tragedy.”28 This definition is so vague that it is difficult not to see in it a restriction of certain fundamental freedoms.
In addition to the treatment of people suspected of terrorist activity or complicity in it, the security forces are for the first time mentioned in the text. While in the Civil Concord text it was possible to see an implicit desire to leave violations committed by members of the security forces unpunished, in this text impunity is explicitly enshrined in law.
Article 45 states that “No legal proceedings may be initiated against an individual or a collective entity, belonging to any component whatsoever of the defense and security forces of the Republic, for actions conducted for the purpose of protecting persons and property, safeguarding the nation or preserving the institutions of the Democratic and Popular Republic of Algeria.” The question poses itself: how do we know whom “any component whatsoever of the defense and security forces of the Republic” refers to? Are the “communal guards” and the “self-defence forces” counted among these forces?
This article of law, which practically amounts to a general amnesty for these forces, is incompatible with international human rights law. Despite its lack of clarity which raises numerous questions, paragraph 2 appears to suggest that this article’s validity extends even to the violations committed by these forces after the promulgation of this law, since it stipulates that “The competent judicial authorities are to summarily dismiss all accusations or complaints.” But not only does the amnesty come at the expense of the victims of the crimes committed, it is also contrary to the international obligations of the state that has promulgated it. The government explains that the « summary dismissal of all accusations or complaints” against the security forces is a provision “chosen by popular plebiscite on 28 November 2005.” It must be remembered that in the text of the Charter for Peace and National Reconciliation30 nothing was mentioned about the idea of amnestying this category of people, even though it paid homage to the security forces and their helpers. The question which Algerians were to decide through the referendum was “Are you for or against peace and national reconciliation?” The answer under such circumstances is predetermined, all the more so given that critical voices were denied the right to express themselves.
Recall that some of the crimes committed in Algeria since 1992 constitute continued crimes under international law: “forced disappearances” on a massive and systematic scale and massacres that count as crimes against humanity. To this must be added the crimes of torture and arbitrary detention, to be discussed further on.
But the Algerian legislation has gone even further; not only does it seek to block judicial prosecution of the perpetrators of these crimes, it tops it off by making any criticism of the Algerian government’s position on the drama Algeria has suffered for more than 15 years a misdemeanour liable for penal prosecution and a prison term: “Anyone who, by speech, writing or any other act, uses or exploits the wounds of the national tragedy, to harm the institutions of the Democratic and Popular Republic of Algeria, to weaken the State, or to undermine the good reputation of its agents who honourably served it, or to tarnish the image of Algeria internationally, shall be punished with three (3) to five (5) years’ imprisonment and a fine of 250,000 DA to 500,000 DA.”31 In case of a second offence, the penalty is doubled.
This provision constitutes a real menace to every human rights defender, researcher, journalist, victim of human rights abuses, etc. who does not accommodate himself to the official version of the facts and works to seek truth and justice.
Questions: Are the provisions of the Civil Concord law and the Ordinance implementing the Charter for Peace and National Reconciliation compatible with the principles of international law to which Algeria subscribes?
Have charges laid by victims against the agents of the security forces been closed without follow-up? Are charges submitted after the promulgation of the latter text receivable?
3. Article 6
Right to life:
The Kabylie events: On 18 April 2001, a high school student of 19 was arrested at Beni-Douala and taken into custody at a gendarmes’ brigade. He was seriously wounded by a burst of fire from a Kalashnikov by a gendarme within the brigade. He succumbed to his wounds the next day at the Mustapha hospital in Algiers. The gendarmerie called it an accidental death, the result of an unfortunate maneuver with a Kalashnikov by a gendarme. His father called it murder. His friends denounced his summary execution. Riots shook all of Kabylie and spread beyond the region, lasting months. The gendarmerie, violating the principle of proportionality, shot at the demonstrators with live ammunition, leading to 120 deaths and thousands of injuries. Many people were arrested and tortured. A big demonstration was organised in protest for 14 June 2001 and was violently suppressed. In this situation of general agitation, the government banned marches in Algiers – a prohibition still in force today. The government promised to inquire into the violations committed by the security forces and to judge the guilty, in particular the gendarmes accused of committing summary executions.
Questions: Have the members of the security forces who committed extrajudicial executions and torture been judged and sentenced? Have the victims and their families been compensated as the government had promised?
4. Article 7
4.1 Torture and cruel, inhuman, or degrading punishment or treatment
In its periodic report, the Algerian government emphasises that the penal code has bee revised and that the offence of torture has been redefined on the basis of the Convention against Torture. Henceforth, the act of torture committed by any civil servant is punishable by 10 to 20 years’ imprisonment, and not informing on such a crime is punishable by 5 to 10 years.
Torture continues to be widely practiced in Algeria; the testimonies of victims and the reports of human rights organisations attest to its systematic character. In the 1990s t all constituted bodies, as well as the “self-defence forces”, practiced torture. In recent years, especially since 11 September 2001, the Intelligence and Security Department (DRS) has been the main security body in charge of people suspected of terrorist activity.
The people arrested are generally transferred to a DRS locale, very often in Algiers (the Antar centre.) They at first disappear into a secret detention place for a period varying from a few days to several months, and generally undergo torture during the first stage of this secret detention, which itself constitutes a form of torture. The methods most often employed, aside from hitting, are the chiffon, hanging, and electricity. The purpose of the torture is to make the suspect admit to being a member of a terrorist group or to providing support for such a group.
Confessions signed under torture are placed in a statement which the accused have to sign without being able to read. Very often, on leaving the place of their secret detention, they are forced to sign a testimony confirming that they were well-treated. Few victims dare to mention torture afterwards even before the trial judge. Despite the threats made against them, however, some have nonetheless testified. Here are a few examples:
Mohamed Sebbar, arrested 27 December 2002, had lived in Bosnia in the early 1990s, where he had fought alongside the Bosnian army. He had obtained Bosnian nationality. In 2001, having got guarantees from the Algerian president, he decided to return to Algeria with his family. Six months later, on 27 December 2002, he was arrested by DRS agents. He was detained in secret for more than 9 months before being brought before the judge in late September 2003. But first his torturers forced him to sign a document testifying that he had been well treated and that no object had disappeared from his home. He signed an interrogation statement, garnished with confessions extorted under torture, because the officer threatened him with death. He led him to understand that he had already executed many people and that he had not chance of leaving prison because the prosecutor and the judge belonged to their system. On reaching the tribunal, Mr. Sebbar informed the two magistrates that he wanted to press charges against the DRS agents. Both told him that if he did not know the names of his torturers, he could not press charges. 32
M’hamed Benyamina, an Algerian living in France, was arrested on 9 September 2005 at Oran airport as he tried to return to France after one month’s stay in Algeria. The DRS agents, who did not identify themselves, informed him that he had been arrested on the French authorities’ request. He was held in secret in an Army centre in Algiers for five months. He was not brought before a judge until 6 February 2006. During the whole time that he was being secretly detained, he was not permitted to see a lawyer, and his family did not know where he was being held. When he was brought before the judge, he complained that he had been tortured and had been forced to sign an interrogation statement without reading it. He was then imprisoned without any verdict. The Working Group on Arbitrary Detention, made aware of the case, declared on 21 November 2006 that his detention is arbitrary.
Nouamane Meziche who has Algerian and French double nationality and lives in Germany, was arrested during a trip to Algeria on 5 January 2006 on reaching the Algiers airport. No arrest warrant had been issued and he had not been condemned in absentia. He was detained in secret for 43 days in the DRS’ “Antar” centre where he was tortured. Not until 19 February was he brought before a judge, who charged him with “belonging to a terrorist group acting abroad.” Under the provisions of the Ordinance implementing the Charter, the charges against him were cancelled and he was freed on4 March 2006.
The Ain Taghrout affair: More than ten people were kidnapped by DRS agents in the little village of Ain Taghrout (Wilaya of Bordj Bou Arreridj) between 20 and 23 December 2006. They were all systematically tortured in DRS places in Constantine, then got accused of “apology for terrorism” and placed in provisional detention.
Mounir Hammouche died under torture. Kidnapped on the open road at Ain Taghrout, Wilaya of Bordj Bou Arreridj, by a number of people in civilian clothes on 20 December 2006, he was driven to a DRS centre. He was accused of “not praying in the closest mosque to his house” and of “growing a beard and wearing Islamic clothes”. He was freed the next day but then kidnapped again in the same conditions on 23 December, along with about ten other people in the same village, including Antar Zaibet, Mourad Zaibet, Fares Messahel, Walid Laggoune, Mahmoud Belaid and Mounir Rezazga. They were all tortured at a DRS centre in Constantine and bore visible marks of torture when they were brought before the judge.
The body of Mounir Hammouche was returned to his parents on the evening of 29 December. They were told that “he had killed himself.” His parents, noting that his body showed many signs of torture, including a wound to the head and bruises to the hands and feet, asked for an autopsy to be conducted before his burial. They were answered that “an autopsy had taken place anyway.” Despite the family’s protests, the burial took place the next day under police surveillance. Since the autopsy report has never been communicated to the family, they wrote to the public prosecutors of the Ras El Oued tribunal and the Bordj Bou Arreridj court to ask for a copy. They have never received a reply to this day. His case was communicated to the Special Rapporteur on Torture on 16 January 2007 and to the Special Rapporteur on Extrajudicial Executions on 18 January 2007.
4.2 The families of the disappeared have also undergone a type of torture
Apart from the other rights protected by the Covenant that are violated by forced disappearance, this practice, widespread in the years 1993-1997, continues to produce dramatic effects in society, and in particular on the victim’s relatives, still ignorant of their loved ones’ fate and without legal access to the truth.
These disappearances, without official explanation and without political will to shed light on the events, continue to constitute a painful and distressing ordeal for the victims’ parents, and to keep them in a state of uncertainty and of deep suffering amounting to torture.
Even for the families of people kidnapped by the security services and disappeared who have been officially informed of their relatives’ deaths, the authorities refuse to tell them the circumstances of their deaths or the locations where they were buried.
Questions: Is Article 45 of the Ordinance implementing the Charter for Peace and National Reconciliation compatible with the provisions of the penal code punishing the crime of torture?
Does the public prosecutor undertake inspections of places of custody, including DRS locations, to verify that there is no violation of Article 7?
5. Article 9
Right to freedom and security
The Algerian government asserts in its periodic report that custody is limited in time by law according to the needs of preliminary enquiry. It claims that this limit, fixed at 48 hours, is only rarely surpassed to reach 12 days “with the judicial authorities’ agreement.” In reality, the length of custody systematically surpasses 49 hours, even in the case of minor offences, and the limit of 12 days, fixed by the provisions of the Law against Terrorism integrated into the penal code, is itself very often broken in cases claimed to involve terrorism.
Worse, during this excessively long custody, the detainees are not authorised to contact a lawyer or their family who in most cases do not know where they are being held if it is happening in a DRS location, as is the case in this type of affair. They do not get a medical visit. Often, the victims are brought before a judge at the end of the 12 days’ custody, but in many cases, they are held in secret for periods ranging from a few weeks to a few months. In the case of Harizi Mohamed, arrested at his family home at Mehdia (Tiaret) by DRS agents on 15 December, he was secretly detained at the Antar Centre for two years and 46 days before being brought before a magistrate on 2 February 2004.
Many tricks have been observed for masking such violations of the law, noably by falsifying the date of arrest on the charge sheet established in the preliminary proceedings.
This is what happened in the case of Youssef Belmouaz (22), and Brahim Abed (23), both kidnapped from the open road by DRS agents at Tiaret, respectively on 26 and 27 November 2006, and detained secretly at the Antar Centre in Ben Aknoun (Algiers), who weren’t brought before the Algiers tribunal judge until 4 March 2007, 97 and 98 days respectively after their arrest.
Their respective parents had been pointing this out to the public prosecutors of the Tiaret and Algiers courts since December 2006, without the latter ever opening an enquiry into their kidnapping and sequestration, as they are required to by law. These magistrates could not have been unaware that the victims were in fact detained by the DRS. The date of arrest mentioned in the trial, however, was that given by the charge sheet written by the DRS: 25 February 2007. Both were the object of urgent appeals by the Working Group on Forced Disappearance and the Special Rapporteur on Torture.
In certain cases where custody lasts weeks or even months, the detainees are officially “assigned to residence” by the Minister of the Interior. In these assignation orders, which constitute de facto administrative detention not subject to judicial control, it is indicated that the person may not leave the wilaya without mentioning the exact address to which he is assigned or the duration of this measure. In reality, the detainees are kept in secret at DRS centres.
These DRS centres are kept secret; they are not mentioned on any document, and the charge sheets mention police locations, not DRS ones. The detainees’ families do not know where the latter are located.
6. Article 14
Right to Justice
Although it is guaranteed constitutionally, as the government says in point 299 of its report, and although denial of justice is punishable by penal sanctions (Article 136 of the penal code), serious violations of this right are routine in Algeria.
It is clear that in such cases as we have cited above, the people concerned did not have access to justice so that, within a reasonable period, their case could be heard equitably and publicly by a competent, independent and impartial tribunal.
Abbassi Madani had been tried in 1992 by a military tribunal for “harming the security of the State and the good functioning of the national economy” without the Algerian state then having justified its recourse to this tribunal nor demonstrated that ordinary civil tribunals or ““other alternative forms of special or high-security courts” were not competent to undertake the trial. “The prosecution and sentence by such a court, and the deprivation of liberty constitute a violation of article 14.”
In other even more revealing cases, the people arrested underwent a legal procedure but were then detained in secret without being handed over to justice to be judged.
This is notably the case for Amari Saifi, alias “El-Para”, GSPC zone 5 emir, accused of kidnapping 32 European tourists in the Algerian Sahara in early 2003. He was handed over to the Algerian authorities by Libya on 27 October 2004. Before being judged for “belonging to a terrorist group”, his case was enrolled for the second session of the Algiers criminal court on 16 June 2005, after a first report to the hearing of 24 April, during which the president of the tribunal had asked the public prosecutor to proceed with taking the detainee out of Constantine prison where he was presumed to be being held. The president of the tribunal, having again noted the public prosecutor’s delay in bringing the detainee before the court, proceeded with it and condemned him to life imprisonment in absentia, although legally, this procedure is applicable only to defendants who have become fugitives. The kidnapping of the tourists in 2003 was to have been the subject of a trial during the criminal session starting in early May 2007. According to the Algerian press, he “will be judged in absentia” since the judicial proceedings engaged in this case began before “‘El Para’ was handed over to the Algerian authorities and, therefore, is considered as a fugitive”, explains a judicial source, according to whom “the law stipulates that these proceedings must be completed.” 33
In the case of Malik Medjnoun, kidnapped in Tizi-Ouzou on 28 September 1999 by DRS agents, then tortured and detained secretly at the Antar Centre in Ben Aknoun for more than eight months, the instruction of the proceedings was closed by a judgement to remand it before the Tizi-Ouzou criminal court on 10 December 2000 and his case was fixed before the venue of judgement for 5 May 2001. It has been remanded sine die since this date.
The case of Malik Medjnoun was the subject of a letter to the Human Rights Committee on 11 June 2004 (case 1297/2004) which issued its response on 9 August 2006.
In the course of this procedure, the Algerian authorities had informed the Committee on 28 December 2004 that “the case would shortly be brought before the criminal tribunal of Tizi-Ouzou to be judged there.” Since this date 8 criminal sessions, including at least 2 since July 2006, have been held at the Tizi-Ouzou Court, without this case being scheduled by the public minister.
Despite the Committee’s observations that the Algerian state has violated article 7, paragraphs 1, 2, and 3 of article 9, and paragraphs 3a) and c) of article 14 of the Covenant, Malik Medjnoune has still to this day not been judged after nearly 8 years of detention including 8 months in secret at a DRS centre.
Questions: What measures has the government taken in such established cases of denial of justice? Are the officials and magistrates responsible for such violations being prosecuted in accordance with article 136 of the penal code?
7. Article 19
Freedom of expression, of opinion, and of information
In its article 46, cited above, the ordinance implementing the Charter for Peace and National Reconciliation threatens to punish those who publicly denounce human rights violations or defend and interpretation of the situation of the past 15 years not in accordance with that codified by the legislature.
Question: Does this article not contradict article 19 of the Covenant?
While it is true that after 1990 real advances were recorded in freedom of the press, these were rapidly reined in after 1992. The government’s methods were various and sometimes subtle, allowing it to present the image of a free and diverse press. The penal code was amended to introduce provisions hardening legislation on the press and defamation (see articles 144b and 146 of the penal code.)
On 14 October 2002, a draft law on information was published on the Ministry of Communication site, constituting, according to Khaled Bourayou, a lawyer specialised in press affairs, “another way to muzzle the press, after the penal code.” “The worst thing [in the text] is the rewriting of article 14 of the 1990 law. The new provision stipulates among other things that all publication be subject … to a statement before the appearance of the first issue by the services of the minister in charge of information; … a receipt is delivered with a delay not to exceed 30 days from the date the file was deposited. The administration’s silence beyond this delay is equivalent to a refusal.” 34 The law thus returns us to an authorisation system, although article 14 of the 1990 law on information stipulates that “the editing of any publication is free. It is subject, for the sake of record and inspection of accuracy, to a statement before the appearance of the first issue by the services of the minister in charge of information. The declaration shall be recorded with the Public Prosecutor.”
In reality, this new article, which speaks clearly of “refusal”, codifies what was already being practiced. For a long time the law in vigour had been twisted to impose de facto bans on certain new newspapers. In 1998, the journalist Abed Charef wrote that “the prosecutors have started not to deliver this receipt, which constitutes an obvious violation of the law. Later, the Ministry of Justice imposed itself to give its advice as a prerequisite for delivering this receipt turned agreement. The press has rarely discussed this development.” 35 Ahmed Kaci, who tried to create two newspapers, reported for his part in January 2002 that: “I lodged my permit file at the Sidi M’Hamed tribunal, at Algiers in August 200, and since then it has stayed there without any follow-up. … Obtaining an agreement is thus subject to hidden rules and to a deliberate intention to forbid some titles before they even come out.” 36
8. Article 22
Freedom of association
With the democratic process set in motion in 1989, freedom of association was introduced in the Constitution and a law defining the means and application of this law was promulgated in 1990. A multitude of parties and associations were created. After January 1992, association life saw a real decline as a result of the government’s desire to restrain and control public freedoms. The authorities considerably reduced associations’ field of action by various means. The most subtle was the one described above regarding the press, sited upstream from the creation of structures issuing from the dynamism of a civil society.
Since August 1992, the Minister of the Interior has had the power to suspend by administrative decree associations whose activities are judged likely to “harm public order, State security, the normal functioning of institutions or the higher interests of the nation.” 37
Every association newly created is required to respond to a request for a permit, receipt, and deposit of file. But with the installation at the level of police commissariats of a bureau responsible for “associations of a social or political character”, the associations undergo restrictions and intimidations before getting their permit, as was the case with the associations of the families of the disappeared or the teachers’ union, the CNAPEST: “The law on associations, some of whose articles are ambiguous, has thus become a filtering and selection system for the pouvoir. Many associations do not get this receipt, just official proof of deposit of a permit request. They then find themselves subjected to a sort of “blackmail” by the services of the wilaya or the Ministry of the Interior, who openly violate the regulation: they are pressured to revise the initial statutes and objectives defined by their general assembly. Once the objectives and the statutes have been revised and “corrected” by the administration, with the forced cooperation of the associations, the founding members are individually called up to the commissariat of their district for an enquiry, before getting the precious receipt of deposit. Through these practices, the services in charge of associations are not required to respond to a permit request in time as defined by the December 1990 law. Some associations, depending on their degree of cooperation, have not obtained an permit file or a deposit receipt after a year of administrative harassment.” 38
No association of families of the disappeared has been officially recognised, they add, to this day, in a context where they are tolerated but not legal. Human Rights Watch wrote in its 2001 report on this subject: “The National Association of Families of « Disappeared » (ANFD) held weekly demonstrations outside the offices of the ONDH to demand that the government provide information about missing relatives, but it was not able to obtain official authorization to function. The Association of Families of « Disappeared » in Constantine faced a similar problem, and said that the authorities had interfered several times with their regular demonstrations outside government offices. Ali Mrabet, a founder of Sumoud (Steadfastness), which advocates investigation of killings and kidnapings, said that the Ministry of Interior had ignored its three-year-old application for registration, without which the group could not obtain permits to hold meetings or open a bank account.”39
On 6 March 1997, the new law on parties led to the suspension of two political parties. Following that, there was practically no further legislation of new parties, despite the permit requests formulated. As with human rights associations and starting newspapers, the government went for a de facto ban by not dealing with the permit files. In 1999 the Trust and Justice Movement (WAFA), headed by the former Minister of Foreign Affairs and 1999 presidential candidate Ahmed Taleb Ibrahimi, tried to register its party. Although the delay of sixty days after the registration expired without the government formally rejecting WAFA’s request, amounting to a recognition of its party status, the Minister of the Interior did not publish any notification of registration in the Official Journal, necessary for obtaining authorisation to meet up and organise conferences. Two other parties suffered the same fate: Sid Ahmed Ghozali’s Democratic Front (FD), and Amara Benyounes’ UDR.
Law 90.14 of 2 June 1990 on the means of exercising the right to form unions opened the way for the creation of unions labelled “independent.” The right to strike, among other things, became part of the prerogatives of unions. The right to belong to international union organisations of their choice, and the possibility of individual membership of union members in political parties, were guaranteed. Many legal amendments have made it the case that since 1991, following the FIS-led strike, the right to strike has been limited. Participation in a work stoppage “in violation of the legislative provisions in vigour” has been defined by the law of 21/12/91 modifying the preceding law on work relations as serious malpractice. Other amendments to the law bearing on the right to strike reinforce the employer’s power, since he gets the right to pronounce on the strike’s legality or illegality (the law expressly allows him to do this.) Previously, only a judge had the power to rule on the licit or illicit character of a strike, to pronounce disciplinary measures such as laying off, or to proceed to dissolve a union.
Many independent unions have not obtained the permit requested. As with political parties and other associations, the union is not declared formed after the deposit of a declaration of constitution with the administration concerned until the delivery of a registration receipt which should be delivered at the latest within 30 days. The authorities do not deliver this registration receipt and thus prevent the creation of new organisations representing workers.
The law further provides that unions should be consulted in domains of activity that concern them during the elaboration of national plans for social and economic development, that they should negotiate collective agreements, that they should be represented in the administrative councils of social security organisations, etc. In reality they are excluded from all these domains and are de facto reduced to the sole function of being spokesmen for demands, in particular regarding salaries.
In 1994, the independent union of education and training workers (SATEF), along with about ten other unions, had their request to create a federation refused without explanation. In September 2000, the SNAPAP, wanting to create a union federation called “National Independent Union of Algerian Workers” (SNATA), had its request rejected by the authorities on the pretext that it did not conform with articles 2 and 4 of law 90-14 of 2 June 1990. According to the International Labour Organisation (ILO), appealed to by the SNAPAP on 17 September and 15 October 2001, the legislator has adopted so restrictive an interpretation of this 1990 law that it should as a consequence ban the national union, the UGTA, which includes workers from all fields without being a federation since the workers join it individually. Some union sections have not been able to be created, notably in hospitals.
The judicial prosecution and restrictions to which the independent unions have become victims are uncountable. The law provides that the employer provide places for the use of unions, but they often do not even get a central seat. Union members have been suspended as a result of their activities, their salaries blocked, they have been prosecuted before tribunals, their offices have been closed. Holding general assemblies of affiliated unions is often prevented.
To cite only the latest attacks on union freedoms: Since 6 June 2007, the National Secretary in charge of union relations and freedoms within the SNAPAP, Mr. Sadou Sadek, has been suspended from his job as an official of the General Inspection Service for his union activities, and has been prevented from entering the bureau of the union section of the wilaya seat of Bejaia, where he works. The police services have just banned again a protest meeting by the workers of the Wilaya of Bejaia and the Wali has lodged a complaint with the summary judge to block the workers’ protest planned for Sunday 08/07/2007 in front of the Bejaia Wilaya seat.
Question: Does the administration’s practice and the refusal to deliver registration receipts not constitute violations of article 22 of the Covenant?
III. The follow-up on the Human Rights Committee’s observations
The cases of Salah Saker, Riad Boucherf, Malik Medjnoune and Abbassi Madani.
In its observations issued on the occasions of the cases cited, the Human Rights Committee has noted Algerian violations of many articles of the Covenant.
Questions: Has the government followed up on the Human Rights Committee’s recommendations by answering it and explaining what measures have been taken to put the Committee’s observations into effect? Has the government made the Committee’s observations public?
1 Chronologie des massacres en Algérie (1994 – 2002), http://www.algeria-watch.org/mrv/2002/bilan_massacres.htm
2 The Seddat massacre: chemical weapons in the anti-terrorist struggle, Algeria-Watch, 31 May 2006, < http://www.algeria-watch.org//en/aw/seddat.htm>
3 Habib Souaïdia, La sale guerre, Editions La Découverte, Paris 2001, p. 150 .
4 Amnesty international, Algeria: Civilian population caught in a spiral of violence, 1997.
5 In the Tipaza region, the inhabitants that had fled violence resettled and created militias. El Khabar, 15 Nov. 2006.
6 Le Jeune Indépendant, 26 septembre 2005.
7 Final report of the National Commission of Enquiry into the Events of Kabylie, Le Jeune Indépendant, 30 Dec. 2001.
8 Le Quotidien d’Oran, 8 Dec. 2005
9 Law n°91-23 of 6 December 1991 relating to the participation of the army in missions to safeguard public order outside of exceptional situations.
10 Presidential decree n° 91-488 of 21 December 1991 relating to the participation of the army in missions to safeguard public order outside of exceptional situations.
11 Final report of the National Commission of Enquiry into the Events of Kabylie, Décembre 2001, published in Le Jeune Indépendant, 30 Dec. 2001
12 Law n°91-19 of 2 Dec. 1991.
13 Law n° 99-08 of 13 Jul. 1999 relating to the reestablishment of civil concord.
14 Articles 3 and 4.
15 Article 5.
16 Articles 6 and 12.
17 Article 8.
18 Article 13.
19 Article 15.
20 Karim Kettani, Algérie: concorde civile, impunité et droit international, Sanabil, Journal électronique pour un Maghreb des droits de l’Homme, No. 1 – Mars 2001, http://www.maghreb-ddh.sgdg.org/sanabil/numero1 and http://www.algeria-watch.org/farticle/kettani.htm
21 Ordinance n°06-01 of 28 Moharram 1427 corresponding to 27 February 2006 implementing the Charter for Peace and National Reconciliation.
22 Article 4.
23 Articles 5-8.
24 Article 9.
25 Article 15.
26 Articles 18-20.
27 Article 21.
28 Article 26.
29 Article 45 paragraph 1.
30 Project of the Charter for Peace and National Reconciliation, presidential decree n° 05-278 of 14 August 2005 summoning the electoral body for the referendum of Friday 29 September 2005 on national reconciliation.
31 Article 46.
32 ODHA, Témoignage de torture: « Je t’abats et tu rejoindras la liste des ‘disparus' », Mohamed Sebbar, 2003 http://www.algeria-watch.org/fr/mrv/observatoire/torture_sebbar.htm
33 Le Jour d’Algérie, 1 Apr. 2007.
34 Brahim Brahimi, teacher at the Institute of Information Sciences and Communication in Algiers, quoted by Reporters sans frontières, 25 Nov. 2002, http://www.rsf.org/article.php3?id_article=4367
35 Abed Charef, Autopsie d’un massacre, L’Aube, La Tour d’Aigues, 1998, p. 166-167.
36 El Watan, 24 February 2002.
37 Presidential decree n° 92-320 of 11 August 1992.
38 Abdelhaq Illeli, « Des associations sous contrôle », algeria-interface.com, 9 Feb. 2001.
39 Human Rights Watch, 2001 world report.