The algerian Judiciary
Algeria Interface, 24 May 2001
Algiers, 24/05/01 – The last decade of bloody terrorism and wholesale state repression has exacted a heavy toll on the Algerian legal system. Judges, public prosecutors and investigating magistrates have been suspended or even arrested, while Algerians have grown profoundly cynical of the judiciary, so inured are they to injustice.
They consider it a supine institution that only stirs itself at the sound of its political masters’ voice. Recent reforms to criminal law and procedure have been greeted with widespread scepticism by legal professionals, law court officials and in the country at large.
Strangely, though, an almost imperceptible change is taking place independently of statute and reform. The men and women who work in the legal system are gradually lifting their heads above water. As violence has gradually abated, they are learning how to do their jobs again.
In the articles that make up this special Focus feature on the Algerian legal system, Daikha Dridi affords us insights into how it functions – or malfunctions – and portrays the good, the bad and the ugly behind it.
The system is deeply but not totally flawed. There are signs of hope.
THE BOULEMIA TRIAL, A PARODY OF A PARODY OF JUSTICE
Algiers, 24/05/01 – The widely respected Abdelkader Hachani was murdered on November 22 1999. Barely a month later one Fouad Boulemia was arrested and charged. If the murder had not caused so much consternation the news of Boulemia’s arrest, his confession, published chapter and verse in the papers, would have been a bad joke.
The trial was held on April 12 with scant respect for court procedure. The greenhorn young lawyer the court appointed to defend Boulemia was plainly out of his depth, while the jury’s indifference bordered on boredom.
Fouad Boulemia admitted he had been an Islamist guerrilla from 1995 to 1999 in the Mitidja Plain south of Algiers, a region that has suffered – and still suffers – cruelly from terrorism. However he denied killing Abdelkader Hachani and accused the secret services and its chief, general Mohamed Mediene, of torturing his confession from him.
Altogether Boulemia spoke for some ten minutes, but at no time was he cross-examined or even asked a single question. He then sat down and looked on as 17 witness were called to the stand and heard in less than an hour.
Nothing came to light in the trial that pointed either to Boulemia’s guilt or innocence. The death sentence meted out to him was a foregone conclusion. Equally shameful in this sham trial was that Fouad Boulemia was defended by a lawyer unworthy of the name.
But the appointment of so inept a defence lawyer was not down to sinister police machinations. Of course justice is hard to come by because the system is flawed, but also because people are so poor. Boulemia’s family simply could not afford the services of a professional lawyer.
« When I found out my son was in prison charged with murder I did the rounds of all the lawyers I could find. But they all said that such a sensitive political trial would cost a lot of money. Every single one asked me for astronomical sums, » said Fouad Boulemia’s ageing father outside the courthouse.
He works as a driver in a state-owned company to feed his seven children. Dressed in rags and with holes in his shoes he had not been paid his meagre salary for three months when he learned of his son’s arrest.
He looked on helplessly as Fouad Boulemia was sentenced to death. He was so resigned he even mumbled a word of thanks to the court-appointed lawyer.
THE SERKADJI MUTINY TRIALS
Algiers, 24/04/01 – The Serkadji Mutiny prison uprising in 1995 claimed 100 lives. The « mutineers » were first tried in January 1998. It was a hasty affair with scant regard for procedure and even less for the justice.
The second trial three years later seemed to take place in a different country. Judges, prosecutor and defence lawyers were concerned with seeing justice was done as a right to which the accused were entitled. place. Although the whole truth was not uncovered, no trial has ever come so near since the violence began in 1992.
Why the yawning discrepancy within the same institution? To understand, we must first go back to the tragic events of that night in 1995.
In the night of February 21, 1995, four Islamist prisoners on death row attempted to escape from Serkadji Prison in Algiers. The break-out went wrong almost from the outset; warders intervene and rioting broke out. Inmates opened up all the cells releasing prisoners, many of whom were there on Islamist terrorist charges.
Security forces moved in and put down the uprising in a siege that lasted for 12 hours. Ninety-six prisoners and four warders lost their lives in the carnage.
One of the warders, soon to collect his pension, was captured by prisoners. They tortured him then cut his throat. The security forces lobbed grenades into the cells packed with prisoners. Some bodies were so badly mutilated that they never been identified to this day.
The grisly event became known as the Serkadji Massacre. It aroused such outrage from human rights groups inside and outside Algeria that the government appointed a commission of inquiry.
A group of Algerian lawyers working with independent human rights organisation, the LADDH, decided to conduct their own inquiry. It came up with findings that were diametrically the opposite of those of the government-appointed commission.
The official inquiry laid the blame squarely at the door of the prison inmates. It stated that when negotiations with the inmates failed the security services had no choice but to take action. The prison riot was a powder keg in a country ablaze with violence.
So an all-out attack was launched with the combined police-army special intervention force firing indiscriminately on the prisoners grouped in Wing 25, the prison’s death row.
The LADDH report blamed the massacre on the security forces. It raised doubts over the alleged breakout and ensuing rioting which, it suggested, was engineered to enable the carnage. The aim was a mass execution of diehard Islamist rebel leaders held at Serkadji.
Neither inquiry was truly convincing. The LADDH’s report left ground uncovered and its hasty conclusions showed it did not conduct its investigations with due rigour.
The first trial opens
The first trial was held in 1998 during the holy month of Ramadan, a period that had become a byword for bloody terrorist killings since 1996.
It was a time when the Palais de Justice (law court) in Algiers was wholly subservient to the government. It deserved its nickname of « palais d’injustice ».
The 38 defendants were squashed into the courtroom like sardines. They were haggard and drawn and dressed in the mustard-yellow uniform of death rown inmates. They were blatantly presented to the court as dangerous criminals.
Many lawyers were present, some of whom had high public profiles and were fawned on by the press in the main hostile to the Islamists. Those defending the prisoners the press branded as FIS lawyers.
Abdelkader Hachani was in the public gallery and even though he had been one of the mediators in the aborted negotiations between security forces and prisoners, he was never called upon as a witness.
Most of the journalists covering the proceedings were insurgency specialists whose articles further heightened the tension in the courtroom during the 13 days the trial lasted.
The presiding judge was as much of a joke as the investigating magistrate whose brutal methods the accused tirelessly denounced. The overriding aim of the court and prosecution was to get the trial over and done with.
The defence lawyers’ stressed the responsibility of the security forces whose terrifying assault on prison killed nearly 100 inmates turning them into « human marmalade » as one lawyer put it in his plea voice broken by emotion.
The accused, however, got practically no chance to speak. They were clearly not the issue but excuses for each different version of events.
The final verdict sentenced prison warder Hamid Mebarki to death. He had smuggled weapons into Serkadji. Many of the accused were acquitted or released by sentencing them to the exact duration of the pretrial custody they had already served.
Others, though, had 10 years tagged onto their already long terms. They listened, numbed, to the judge passing sentence.
The second trial
In March 2001, three years after the first trial and six years after the revolt, the second Serkadji trial opened after the Supreme Court ruled Algiers Criminal Court should retry the case.
It was again held in the Palais de Justice in Algiers and in the same courtroom, but the context and atmosphere were totally different. Much had happened since 1998.
The blood and bullets of war had faded. Bouteflika’s civil harmony policy had sown doubt and confusion in many a mind and called into question previously unshakeable convictions on both sides.
Appeals had led to the life and death sentences routinely handed out by special courts at the height of the bloodshed being quashed or commuted.
Star human rights lawyers, either worn out or fed up with constant sham trials, were not in court.
The result was a trial free of the oppressive tension that had weighed on proceedings three years earlier.
The presiding judge who opened the proceedings on March 24 was a woman, Abdelouahab Lila. She was to do a remarkable job
Women at heart of proceedings
Only human rights lawyer Mahmoud Khellili troubled proceedings when he protested on day one that the trial was fixed because a prison warder who was a key witness was absent.
His attempts to the stall proceedings were, however, alien to the concerns of the accused. Said one of them: « We want to be tried, we’re rotting away in prison. » The six accused Khellil was representing politely but firmly distanced themselves from him and requested that the trial should go on without him.
They agreed to his replacement. She was unknown to the media, but the Islamist prisoners seemed to know her well.
Compared to the first trial the change in the attitude of the accused was patent. The hopelessness of three years before had given way to the crazy hope they might actually be found innocent of charges.
When the trial got under way it, too, was in total contrast to the first one. None of the lawyers were interested in politics but only in freeing their clients.
Abdelouahab Lila was masterly in the way she conducted proceedings. She was scrupulous and deeply respectful both of the defendants’ beliefs and of them as human beings.
Above all, and to the delight of journalists present, she was curious about every scrap of evidence.
Respect for the accused
This trial was all about the accused and establishing whether they were innocent or guilty. They were questioned for hours at a time. Some answered evasively, others fully and to the point, while others still delivered long homilies and recited their favourite Koranic verses.
Like all their fellow Algerians, they were mirrors of the terrible evens that had befallen the country since 1992.
Most of them were young, had joined the FIS and then been arrested in 1993. Some were probably fully-fledged criminals, others not quite. All, though, displayed dignity. Even the one who refused to recognise the court because it was presided by a woman was not aggressive either towards here nor towards the court.
Their stories and their mannerisms made them into flesh and blood human beings who eventually won the compassion of people in the public gallery even though they did not necessarily share their views.
Many of them kept silent about the instigators of the revolt, all killed in the assault by the security forces. Nor did they talk about how they had cut the warders’ throats and taken inmates from the wing where policeman, civil servants and foreigners were held to use them as human shields.
The logic of war
But for the very first time they revealed what had gone among the mutineers themselves and how there had been disagreement. It transpired that negotiations had broken down because of the intransigence of some of the more hardline prisoners.
The trigger-happy army alone was not to blame. It may have butchered prison inmates, but they were two were no boy scouts.
It was the logic of war that was ultimately behind the Serkadji Mutiny, the first mass killing of the 90s.
Many observers, however, claim that the second trial did not really change anything. The prisoners who had butchered warders had all been killed during the army assault, whereas those who ordered the killing of 96 prisoners were sitting pretty in impunity. Warder Hamid Mebarki, the mutineers’ accomplice said not a further word about any of the other accomplices who had helped secrete weapons into jail.
But the trial did restore the dignity of the 15 defendants who were cleared of all charges. And when the trial closed, the smile on the face of the 15 free men were extraordinary.
Most moving of all, though, was the presiding judge. The overriding concern of this deeply humane woman was justice.
JURORS PAST THEIR PRIME
Algiers, 24/05/01 – Over the last few years white-haired old men in shabby suits have been regular fixtures in the public gallery at criminal trials in Algeria. There are usually between 20 or 30 of them sitting quietly with their newspapers during the first few days of a trial waiting to see whether they will be drawn to sit in the jury.
Antiterrorist legislation in the early 1990s reduced the size of a jury from four to two. When the legislation was abandoned in 1995 under pressure from rights organisations, juries of two were incorporated into law.
Unease stems not just about the size of juries, but from the ability of the jurors to make sound judgement. During the grimmest years of terrorism in the mid-1990s juries were handpicked from lists of retired policemen and justice ministry employees. But against a background of escalating terrorist attacks many were reluctant to be jurors.
It is a fact that when terrorist attacks were at their peak between 1993 and 1997, anybody seen to be serving the justice ministry became a potential target. Many were killed, sometimes in horrific conditions. But it is also a fact that when the process of law becomes an arbitrary business, it makes more sense to have old firm employees on the jury than ordinary citizens.
What irks legal professionals, though, is that the jurors enter torpid trances during proceedings. Says one legal advisor : « They’re just too elderly and bored. They’re also impervious to logical reasoning and tend to adopt extreme attitudes. Sometimes they’re hypersensitive and see the accused as victims. At other times they’re downright punitive. » She does add this caveat, however: « They might be former policemen, but they never display hate towards the Islamist in the dock. But neither do they have any influence at all in the final verdict. How many times have you heard them say to the presiding judge, ‘you decide as you see fit, I trust your judgement. »
Earlier this year, judges were pleasantly surprised to see that for the first time in nine years doctors, dentists and academics were among the jurors. Their excitement was short-lived, though, as one after the other the jurors pulled out on the grounds they had prior engagements or were too busy.
THERE WAS A CROOKED JUDGE
Algiers, 24/05/01 – Algeria’s magistrates are always on the verge of resigning. At least the few honest, independent ones left. One does not see many of them. Not just because there aren’t many but because the have to keep out of sight of predatory politicians.
We take a walk round the Algiers Palais of Justice (law courts) with a seasoned old lawyer. He is a frank speaker and has a tragi-comic sense of humour. He warmly hails a merry-looking man of about 50. « See that one? He’s a bent magistrate. But he’s a nicer guy than that bastard over giving orders to that shy-looking clerk. »
What percentage of crooked judges does he think there is in the magistrature. « Maybe 70 or 80%, but there are different degrees. Some will eat off any plate. Others execute orders from on high and others are basically honest but they let themselves be manipulated. »
Some are broken men. One walks pass his face and shoulders twitching. « Poor guy, » says another lawyer. « He’s never been up to much. And now he’s scared. He’s just been appointed to preside a criminal court and he doesn’t know how. »
The Algerian magistrature are a cagey lot. If they agree to talk at all, they always insist on not being named. The state prosecutors are the worst – they will not say a word to journalists. All except one who agrees to talk in his office hung with gold embroidered velvet.
He is despondent. « The judiciary suffers from all the ills the rest of the country does, » he sighs before clamming up. When asked if he will answer a few questions from the press, he says he will think about. « Thinking » means asking for permission, which almost never comes. »
He refuses to breathe a word about recent reforms which place the police under the authority of the investigating magistrate in criminal cases.
On the floor above is another kind of office. It is cramped, plain and the creaking furniture is uncomfortable. It is the office of a trial judge, a rare breed in Algeria’s understaffed legal system. Trial judges are said to consider themselves as mere functionaries who do what they are told.
How refreshing it was, then, then to hear a woman trial judge say that she has presided over criminal cases since 1995 and « never had any pressure put on her ». She explains that the authorities realise she is impervious to pressure from above. « I’ve steered clear of trouble because I do my job as it should be done, » she says. « I don’t get emotional and my only concern is that justice should be done. I am rigorous but not unbending. »
But surely it is impossible to ensure justice is done against a background of trumped-up charges, summary investigation and widespread torture.
Hardly surpassing that most of them are uneasy about presiding over cases with political overtones. It is very difficult to consider all the elements in a terrorist case and make allowances.
When a shoddy investigation gives obviously trumped charges, they prefer to turn a blind eye and try to establish the facts in court. « And if there is doubt it is the defendant who gets the benefit, » says another woman judge. She prefers to run the risk of acquitting a guilty defendant rather than send an innocent person to prison.
Torture is the bane of the profession. Judges and magistrates alike are powerless to do anything. Only public prosecutors have the power to open proceedings for torture. All they can do is let defendants who have been tortured describe it in court. There seems little likelihood they will take, or have even considered, any concerted, collective action.
There is feeling, though, that brighter times are ahead. A new generation of judges made of sterner stuff is coming through. It is scant consolation, but consolation nevertheless, after the terrible years they have sat through cases in the faint hope that justice just might be done this time.
A RARE BREED OF LAWYER
Algiers, 24/05/01 – Hassiba Boumerdassi walks and talks slow and easy. She says she’s no human rights activist and hates talking politics. Odd because she’s lawyers and, as she says, « 98% of my cases are terrorist cases and God knows it wasn’t a speciality I chose. »
Some lawyers have chosen to make human rights the focus in their struggle against the regime. Others say their personal and political convictions do not allow them to defend Islamists. Most, though, prefer to defend run of the mill offenders or business cases which pay better.
Forty-nine year old Hassiba, who has children, shrugs and says she is just doing her job.
« At first they refused to have women defending them. Then in 1995 I was asked to take on the case of an Islamist. When I went to see him he asked me not tell any of the other detainees. But in court they all saw I was a woman. There was a whole lot of them and their case was practically a lost cause. Only two defendants were acquitted and one of them was my client. Since then word has got around and now I work almost only on Islamist cases. »
Another reason why many lawyers refuse Islamist terrorist cases is because the accused are usually from poor families who cannot afford the fees. Which is why they are so often defended by court-appointed lawyers. Until recently they were not paid, which accounted for lack of commitment to defendants.
Hassiba is a lawyer who agrees to take on cases free of charge. She compensates with business cases or wealthy clients who can afford to cough up.
« Time are hard, » says Hassiba. « It’s not unusual for someone to come and see and say ‘I’ve lost my job, I can’t pay but I heard you can help me’. » She’s got some 60 cases ongoing. « I won’t earn a penny from a third of them, but that’s too bad. »
She will not take on more than she can cope with, so she has to turn people down. A person’s future can hinge on her, so she takes each case to heart. Which is why her clients hold her in esteem and her name is well known to detainees.
Some of her defendants have been convicted, but when she visits them in prison they give little present they have made behind bars. A speciality is hollow biros embroidered with multicoloured thread.
Anxiety often makes Hassiba physically ill. « I hate it when someone is convicted, » she says. « I can’t stand the idea of somebody going to prison because he couldn’t afford a lawyer who could have drafted his appeal. It’s so unfair. »
Although charges are often summarily compiled and weighted against her clients, he admits that in court the final verdict is often the right one.
The reason is that the bulk of terrorist charges are condoning terrorism and complicity with or belonging to a terrorist organisation. Young men are regularly arrested and detained on such charges after someone else has given their names to the security forces under duress.
As a result, a good lawyer can usually get the case dismissed for lack of evidence. « The number of times I’ve seen my clients get life then, on appeal, acquittals, » says Hassiba.
She takes her head in her hands and admits to having doubts about a brighter future. « Conditions inside are getting better, detainees tell me so, » she says. « Pretrial detention is not as long as it used to be, either. But when they’re in custody they’re still ill-treated and tortured. Sometimes they reckon they haven’t been tortured, just given the rag treatment. » The rag treatment is a well-tried practice of suffocating a suspect to make him talk.
Nevertheless Hassiba feels that some intangible change is taking place in Algeria. She plays with one of her prison presents and in a voice charged with emotion says: » What’s happened here has changed us all. [Her Islamist clients] don’t look at women in the same way any more, or at society. They’re changing, too. »