Committee against torture hears response of Algeria
5 May 2008
The Committee against Torture this afternoon heard the response of Algeria to questions raised by Committee Experts on the third periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Friday, 2 May 2008, the delegation, which was led by Idriss Jazairy, Permanent Representative of Algeria to the United Nations Office at Geneva, underlined that the state of emergency did not constitute a denial of democratic rights. How else could one explain the three presidential elections that had taken place, the increase in the number of associations, the free movement of millions of travellers coming to and departing from Algeria, and the hundreds of conferences of international and regional organisations and cultural, scientific and sporting events that had taken place? Embassies had been reopened and airline companies had returned. All these were indicators of the ongoing improvement of the security situation and the return to normality. The attacks on the United Nations headquarters in Algiers on 11 December 2007 were a sign of the need to remain vigilant and to keep the state of emergency in force.
On the Charter of Peace and National Reconciliation, Mr. Jazairy noted that Article 45 did not say that any act that had been perpetrated by the security could not be prosecuted. It said that the State could not prosecute what had happened during military operations where soldiers had been fighting against an enemy in a battle that was not covered by the status and rules of normal military conflicts. Algeria had not been fighting a foreign state, but individual terrorists. It was not a blanket amnesty. If anybody was guilty of a heinous crime he could be prosecuted. Concerning the list of reported disappeared persons, it was noted that only a court could certify that an individual had disappeared. The Committee had been provided with the list of families which had benefited from compensation for the disappearance of a family member. As everyone could claim a disappearance, there was need for a judicial certificate.
The Committee will submit its conclusions and recommendations on the report of Algeria towards the end of the session which concludes on Friday, 16 May 2008.
As one of the 145 States parties to the Convention against Torture, Algeria is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Tuesday, 6 May, it is scheduled to begin consideration of the second periodic report of Indonesia (CAT/C/72/Add.1).
Response of Algeria
IDRISS JAZAIRY, Ambassador and Permanent Representative of Algeria to the United Nations Office at Geneva, introducing the delegation’s answers in response to a series of questions raised by Committee Experts on 2 May 2008, said that the questions had surprised the delegation as many went beyond what they understood to be the mandate of the Committee. In the view of Algeria, the Committee was carrying out a mini Universal Periodic Review. This reflected the interest of the Committee members in the review of Algeria’s periodic report and their commitment concerning the challenges Algeria had been confronted with since the terrorist aggressions in the 1990s.
On the state of emergency, Mr. Jazairy said that this constituted none other than the continuation of the rule of law in exceptional circumstances. It could only be evoked by the Head of State, according to the Constitution. The state of emergency was a safeguard for the State to ensure the ongoing protection of people and the normal functioning of institutions. Although it had been enforced in 1992, it had not led to the cancellation of the Constitution. Restrictions had been regularly lifted since then. Special Courts had been dissolved in 1995. Since then, crimes of terrorism were judged under common law jurisdictions. The only remaining application was the option to call units of the army to conduct missions to ensure public order and security.
Mr. Jazairy underlined that the state of emergency did not constitute a denial of democratic rights. How else could one explain the three presidential elections that had taken place, the increase in the number of associations, the free movement of millions of travellers coming to and departing from Algeria, and the hundreds of conferences of international and regional organisations and cultural, scientific and sports events that had taken place? Embassies had been reopened and airline companies had returned. All these were indicators of the ongoing improvement of the security situation and the return to normality.
Still, the threat remained, scattered, sporadic and underlying, said Mr. Jazairy. The attacks on the United Nations headquarters in Algiers on 11 December 2007 were a sign of the need to remain vigilant and to keep the state of emergency in force. One should note that the main political parties, expressing the will of the majority of the people, were against ending the state of emergency. When it was question of saving lives and implementing the will of the people, it was not so terrible to have one’s ID controlled a few times a day.
Concerning the Charter of Peace and National Reconciliation, this was the exclusive and inalienable property of the Algerian people, said Mr. Jazairy. The Algerian people had suffered from decades of terrorism and had decided to re-establish their destiny. Was it moral or ethical to tell them they had made a wrong choice and to dictate the road the people had to take? Justice was provided in the name of the people. Human rights should not be used as instruments. The delegation could not accept that the will of millions of Algerians who had accepted the Charter counted for nothing.
Mr. Jazairy said that he had found the word amnesty nowhere in the Charter of Peace and National Reconciliation. Article 45 of the Charter did not provide amnesty to anyone. It protected armed forces from penal proceedings when linked to missions that were conducted to safeguard the nation and protect its people. Any act outside of this framework, including common law crimes, did not fall into the scope of Article 45 of the Charter.
Free speech was guaranteed by the Constitution, said Mr. Jazairy. Article 45 of the Charter gave precedence to peace and reconciliation. Those violating this decision were liable to be prosecuted. These were provisions to deal with cases like those condemning in other countries revisionist ideas or negationism of certain dark ages of history.
On the question of disappearances, it was one of the consequences of the tragedies faced by the Algerian society, noted Mr. Jazairy. The State, as the public power, had recognised it’s civil responsibly and the President had presented his compassion to the families of all victims in October 2005. The Charter was a patriotic answer.
Mr. Jazairy said many members of the Committee had stated that it had been the Algerian State which had responded with a disproportionate use of violence against its adversaries. But in Algeria, the State believed that it had defended the nation from terrorist attacks that had been unprecedented in history. Mr. Jazairy underlined that many police officers and soldiers had died in the struggle. Why should one seek to compare terrorists and those who had sought to protect the nation with their lives? If they were blamed now, who would be ready to protect the country the next time there was trouble? Human rights should not be used as a political instrument. In other cases cited by the Experts, the use of force by public authorities in order to overcome the defenceless opposition had been mentioned, but in fact, these had been actions against armed criminals that had been trying to take the nation hostage.
Concerning the definition of terrorism, Mr. Jazairy reminded that it differed from one State to the other. Concerning the length of custody for terrorist crimes it also varied from one State to another. The lack of consensus at the international level gave rise to various interpretations. Algeria was seeking a global definition of terrorism.
Other members of the delegation, answering specific questions, said that confessions made under torture could not be considered as evidence, and police records were not a means of proof.
On the rights of detainees, the delegation noted that detainees had the right to communicate immediately with relatives and receive visits, they could also be examined by a physician of their choice and had the right to be informed about all their rights. The presence of a defence lawyer was not mentioned in the current legal texts, but a great deal of thought was currently given about this in the context of the current revision of the law. On the death penalty, the delegation confirmed that no executions had taken place since 1993.
Concerning military tribunals, they were established for military offences only, the delegation said. Treason was the only non-military case that could be judged by military courts. Decisions were made public and could be appealed before the Supreme Court. Military tribunals were presided over by a civil judge.
On the question of why public officers were not mentioned in the legal provisions against torture, this was a misunderstanding; the definition of torture was in full accordance with these provisions. Any officer who tortured a detainee or who accepted or ignored acts of torture would be prosecuted and imprisoned.
On the question of the definition of terrorism and on the comments that Algeria used too broad a definition, the delegation noted that it was difficult to give a definition. Before 1992 there had been no definition. It was difficult to define it, as terrorism arbitrarily targeted people or public places in different ways.
With regard to the reduction of criminal responsibility to 16, it was noted that this was not the case. Minors between 16 and 18 could be judged only in cases of terrorism as this was seen as a serious offence. However, a defendant this age could not be sentenced to life imprisonment, a minor must be sentenced to half that the sentence of an adult.
Concerning the assistance granted to victims of the national tragedy, assistance in housing, microcredit and social support was provided to enable them to reintegrate into the society. There was no distinction amongst the various groups. The State compensated all victims of the national tragedy. As regards families who had family members disappear, 5,730 had obtained financial support from the State. Five thousand of those who had lost their work because of the national tragedy had also been supported.
About the conditions required to obtain compensation, the delegation noted that under common law, a disappearance had to be certified by a judge and four years had to pass in order to obtain a death certificate. Under the Charter, this delay had been shortened.
On prevention of violence against women, women’s rights were part of human rights training in law schools, police academies and schools for military officers. Public security officers had a printed manual on international human rights standards. This manual had been distributed widely among the national police and army.
On the advisory Commission on Human Rights, its report had been distributed to the press, there had been a press conference, a brochure was also available and there was a website.
With regards to an Expert’s question on the judges and their probation period of ten years, judges were not removed unless there was a serious fault. The report talked about rotation. For the first ten years judges might move to another region and they could settle down after ten years. It was a question of rotation and not of removal.
Concerning the visits of Special Rapporteurs to Algeria, the delegation said the State wished to receive information and a justification of the reason for a visit before sending an invitation. It was a State’s prerogative to invite a Special Rapporteur and it should not be transformed into an obligation. It was Algeria’s wish to collaborate with every Special Rapporteur but it should happen in an organised way. The Committee was not a court room and Special Rapporteurs were not police inspectors.
Questions by Committee Experts
CLAUDIO GROSSMAN, the Committee Expert serving as Rapporteur for the Report of Algeria, wondered, on the application of the Charter on Freedom of Expression, what happened if somebody in Algeria said that a relative had disappeared and wanted to know what happened and requested an inquiry. He noted that disappearances could also result in torture for the relatives of a disappeared person when they were left not knowing what had happened.
Mr. Grossman also asked if the Committee could be provided with a list of names of the disappeared and what other criteria were used for reparation and how the compensation was established. He believed that Algeria was raising very high obstacles for those who were trying to find answers and get compensation.
ESSADIA BELMIR, the Committee Expert serving as Co-Rapporteur for the Report of Algeria, asked, concerning the emergency situation, how long it would continue and who could judge its necessity? Also, there should be an acceptable way out for those who had lost their relatives and who did not know if they were dead or alive.
Ms. Belmir noted that the delegation had said that 80 per cent of the disappearance cases had been clarified. Was the investigation process stopped after the death certificate was received? Couldn’t there be any national discussion about what had happened? Was there an inquiry planned?
Other Committee experts made comments and asked questions concerning whether allegations of secret interrogation barracks used by the secret service were true or not. There could be no amnesty for cases of rape. Was this right, had there ever been inquiries of such cases?
Response by Delegation
Responding to additional questions raised, Mr. Jazairy said that sometimes he felt that Committee Experts were putting words in the delegation’s mouth that they had not said. He had not said in anyway that the Committee was overstepping its mandate. It was just a remark and he believed it to be okay and they were ready to go over all questions. Also, Algeria did not challenge that torture could not be justified as the Algerian people had undergone acts of torture before gaining their independence. Torture was considered to be a major issue.
On the issue of the Charter, Article 45 did not say that any act that had been perpetrated by the security could not be prosecuted. It said that they could not prosecute what had happened during military operations where soldiers had been fighting against an enemy in a battle that was not covered by the status and rules of normal military conflicts. They had not been fighting a foreign state, but individual terrorists. It was not a blanket amnesty. If anybody was found guilty of a heinous crime he could be prosecuted.
When individuals commented on the missions of policemen or army officers who had been protecting the State against terrorist attacks, this could be prosecuted. This was in reaction to the terrorists’ campaign of propaganda that had taken place and which had been internationally supported, with some saying the terrorists were fighting for their freedom. The Charter was not there to prevent criticism. It did not mean that a person could not claim that a relative had disappeared. But it was wrong when someone said that a relative had disappeared in the hands of security personnel when there was no proof of this; this was defamation.
Concerning the list of reported disappeared persons, it was noted that only a court could establish that an individual had disappeared. The Committee had been provided with the list of those that had benefited from compensation. As everyone could claim a disappearance, there was the need for a judicial confirmation. However the list of names of reported disappeared persons could not be published, as it could lead to a breach of privacy.