Contribution in the context of the Universal Periodic Review
Alkarama for Human Rights, Nov. 20, 2007
Abstract
Algeria, a member of the Council on Human Rights at its creation for a period of one year, said in its letter of application to be "convinced that the construction of a state of law and the promotion of the culture of human rights are key to its stability and prosperity".
It is true that after the bloody suppression of uprisings of youth in October 1988 by the army, which caused the deaths of at least 500 people, Algeria conducted a real political opening. Based on a new Constitution, the freedoms of association and expression were devoted. It was at this time that Algeria ratified the major international instruments including the International Covenant on Civil and Political Rights, the Optional Protocol (I), the International Covenant on Economic, Social and Cultural Rights as well as the Convention against Torture.
This "democratic recreation" was short-lived, however, because, under the pretext of the victory of a party presented by the government as undemocratic (Islamic Front for Salvation, FIS), the first free and transparent parliamentary elections ever experienced by the country since Independence was halted and the army de facto took the reins of the country on January 11, 1992. The President of the Republic was forced to resign, Parliament was dissolved and the constitution suspended. On February 9, 1992, the state of emergency was introduced and it is still in force after sixteen years. A decree defining widely terrorism acts within its scope was enacted in September 1992. Although it was repealed, its main punitive provisions have been incorporated into the Algerian penal code - including the duration of police custody extended to 12 days, the doubling of penalties for acts classified as terrorist, lowering of the age of criminal responsibility to 16 years, and so on.
For nearly three years, the country has not experienced constitutional institutions. It was only until 1996, with the new Constitution, that a semblance of democratic institutions was again put in place. These, however, are closely controlled by the military command, particularly by the leadership of the Secret Service, the Department of Intelligence and Security (DRS), through a procedure known as "habilitation", through which it controls the entire service political, economic and social life. Any promotion or appointment to a post of responsibility for the administration or the State must have the endorsement of the DRS.
This service may also oppose any candidate for an elective office, whatever it is, even if the formal decision of rejection is taken by the Ministry of Interior. Thus, many citizens from different political parties, whether from the opposition or even the "governmental Coalition" composed of the three parties that support President Bouteflika (FLN, RND, HMS) have been denied the right to present their candidacy at the last parliamentary or local elections.
Similarly, all citizens who had been elected in the municipal elections of 1990 or the 1991 legislative elections on the lists of the FIS, or simply suspected of having any sympathy for the party were systematically approved dismissed on the basis of their membership prior to FIS - even though they submitted their applications under the banner of legal parties- thus depriving them permanently from participation in the country's political life.
Under the guise of combating terrorism, serious violations of human rights were committed by the security forces and militias set up by the army since 1994. Thousands of people have been administratively detained in internment camps south of the country, for some of them, for nearly 4 years (the camps have been declared officially closed by the end of 1995), tens of thousands of people were arbitrarily arrested and detained, the practice of torture was widespread and tens of thousands of people were summarily executed or have been victims of enforced disappearances.
It is necessary to discuss this recent past because the law enforcement and judicial structures put in place following the introduction of a state of emergency to combat the opposition, whether peaceful or military, are still in place , and, although several heads of state and many governments have held office since 1992, the main leaders of the DRS remain irremovable.
Although the number of victims has fallen considerably in recent years, as part of what the authorities justified by the fight against terrorism, arbitrary arrests, incommunicado detention and torture continue to be widely practised.
With the presidency of Abdelaziz Bouteflika, since April 1999, the authorities claim to have entered a new phase: civil concord and peace and national reconciliation. In reality, members of armed groups who surrendered, have, to the extent that they have collaborated with the authorities, received a total amnesty regardless of their acts and members of Security force also wre granted amnesty and no complaint against them is legally admissible. Although it was ultimately forced to recognize the magnitude of the phenomenon of enforced disappearances, the Algerian State alleges to settle the matter by compensation. Finally, any criticism of the State within or outside the country is liable to a criminal conviction.
1. The state of emergency
According to the Algerian Constitution, a state of emergency can be declared only for a specified period and can be extended only after approval by parliament. Introduced on 09 February 1992, it was renewed a year later for an indefinite period. The Algerian authorities claim that its establishment "does not affect the continuation of the democratic process, as well as continue to be guaranteed the exercise of fundamental rights and freedoms"(1). But Prof. Issad, a renowned Algerian lawye, who had been mandated by the President to head an inquiry into the events in Kabylia in 2001, found that the arrangements put in place gave exorbitant powers to the military authorities and was a creep from a state of emergency to a state of siege.
The confusion of the legal arsenal which increases the importance of the prerogatives of the military imply severe restrictions on civil and political rights, including those guaranteed by the ICCPR. The Committee on Human Rights noted in its recent remarks that the state of emergency "is still evident (…) by the delegation of the functions of the judicial police to the DRS". Very concretely, the government decided in June 2001 to "suspend until further notice any march in Algiers". This prohibition is maintained to this day.
2. Some elements of the legal arsenal of repression
The current legal arsenal in place in Algeria, comprises among other things:
A) The definition given by the Algerian penal code to acts characterized as subversive or terrorist such as mentioned in the decree on the fight against subversion and terrorism of 1992 in articles 87 and 87bis of the Penal Code, allows a very broad interpretation and restricts the rights and fundamental freedoms.
B) The person suspected of a connection with a terrorist act can be held for 12 days in solitary confinement, without contact either with the family or a lawyer or a doctor. The right to silence is not recognized.
C) The penalties for acts described as terrorist were doubled by comparison with the original penal code.
D) The age of criminal responsibility was lowered to 16 years which represents a sharp divergence from international standards.
E) Confession obtained under torture is not formally banned from use as evidence in front ot courts.
3. Torture
Those suspected of terrorist activities were in the majority of cases arrested by agents of the DRS and held in secret detention for periods ranging from a few days to several months. Some, like Mohamed Fatmia and Mohamed Rahmouni, arrested on June 6 and July 18, 2007, have "disappeared".
Those arrested are still systematically tortured during the first phase of their secret detention which is in itself a form of torture. The most commonly used methods of torture, apart from beating, are the "waterboarding,” (pouring water through a cloth in a detainee’s mouth until he suffocates), suspension and electric shocks on all parts of the body. M'hamed Benyamina, an Algerian living in France, was arrested during a trip he made to Algeria on request of the French authorities. Arrested in September 2005, he was kept in solitary confinement for more than five months and tortured. The Working Group on Arbitrary Detention noted in November 2006 his arbitrary detention. Mounir Hammouche arrested on December 23, 2006 and held incommunicado died under torture. The family has so far been unable to gain access to the autopsy report which would have
been practised according to the authorities.
The confessions under torture are recorded in the minutes that must be signed by the torture detainees without being able to read them. Very often at the end of their detention, they are forced to sign a declaration in which they recognize to have been well treated. Few of the victims dare to report that they had been tortured when presented before a judge.
Judicial practice demonstrates that the courts widely rely on the minutes of the preliminary investigations of the security services, even though the defendants said they had been subjected to torture and illtreatment. The detention for prolonged periods can also erase all traces of torture.
4. The Arbitrary detentions
A) Police custody is often extended beyond the 12 days provided for by the law and can take up to several months without access to a judicial authority and without the possibility of contact with family or a lawyer.
B) Individuals are kept in secret detention after the announcement of their arrest for several years and were sentenced in absentia without appearing before a court.
C) The pre-trial detention often exceeds the maximum period of 16 months (20 months when it comes to crimes classified as subversive), without the accused being brought before a court for a decision on his case. Thus, people can remain detained for many years while awaiting trial.
Malik Medjnoun, abducted in Tizi-Ouzou on September 28, 1999 by agents of the DRS, tortured and held incommunicado at the Anter Centre inr Ben Aknoun (Algiers) for more than eight months, has still not been tried. The investigation of the proceeding was terminated by a ruling of referral to the criminal court of Tizi-Ouzou on December 10, 2000 and established his case to the trial court on May 5, 2001. It has been postponed indefinitely since then. Despite the findings of the Committee, namely the violation by the Algerian State of Article 7, paragraphs 1, 2 and 3 of Article 9 and paragraphs 3 a) and c) of Article 14 of the Covenant, Malik Medjnoun has so far not been tried after almost 8 years of detention of which 8 months in a secret centre of the DRS.
5. The Enforced Disappearances
It is well known that the Algerian security services, at all levels, be they agents of the DRS, the military, the gendarmerie, the police or the paramilitary force,s have engaged for almost a decade with a massive, systematic and arbitrary arrest followed by disappearance of civilians of more than 7,000 victims, according to the most conservative estimates, and up to 20,000 according to some other sources. This is a common practice coordinated at the national level, conducted according to a modus operandi and with identifiable characteristics. Nearly one thousand such cases were submitted by our sole Organization to the UN Working Rroup on Enforced or Involuntary Disappearances: None of these cases have so far been clarified by the Algerian authorities.
The widespread and systematic forced disappearances in Algeria represent, according to the definition that is given by the international criminal law, a crime against humanity (Article 7 of the Rome Statute and Article 5 of the International Convention for the Protection of all persons from enforced disappearances.)
Sir Nigel Rodley, expert of the Committee on Human Rights, has described these practices, quite rightly, during the meeting of October 23, 2007 on the review of the 3rd periodic report of Algeria, as crimes against Humanity.
After several years of systematic denial, the Algerian State has been forced to acknowledge the existence of this phenomenon, officially assuming 6146 cases as "individual blunders from state agents". The Algerian Government refuses to investigate these crimes, to prosecute and punish the perpetrators putting forward the slogan "the State is responsible, but not guilty."
As part of the legal order established by the so-called national reconciliation, the Algerian State claims to put an end to the issue of accountability of perpetrators of crimes including forced disappearances by establishing an amnesty law (Article 45 of 'Order). The families of the victims in turn are encouraged to seek compensation which requires them to enter into particularly humiliating administrative and judicial procedures, particularly when they are forced to certify that their parent died in the ranks of terrorist groups.
The associations of families of missing persons, which the authorities have refused to grant official authorisation, have continued, in spite of the repression which they are regularly subjected to, to assert their right to know the fate of their relatives.
Enforced disappearances have not completely ceased with the arrival of Bouteflika at the Presidency . They are rare but cases continue to be recorded (see the two people mentioned above, section 3). The last recorded disappearance notified by NGOs concerned Kamal Akkache, kidnapped on Sept. 11, 2007, around 14:00 hours in Algiers by civilians who were described as agents of the DRS. Since then, the family had not heard from him.
6. The massacres and summary executions
In the early 90s took place daily summary executions in areas known for their support of FIS. During sweeps and neighbourhood blockades by soldiers, gendarmes and special forces, dozens of people were arrested. They were murdered and their bodies dumped on the public highway.
Since 1996, large-scale massacres have emerged. They reached their height in 1997-1998 with the killings of Rais, Bentalha, Sidi Youcef, Relizane and other places where during one night dozens or even hundreds of people were killed, often through throat cutting. The Algerian government has consistently refused to investigate the perpetrators and sponsors of these massacres, saying they were known as members of terrorist groups. But the rare trial of alleged perpetrators of the massacres were unjust and expeditious. Even today, the responsibilities have not been established and serious questions on the Role of DRS and the army in these mass crimes remain.
The Committee on Human Rights, in its final views, reiterated his request to "take all appropriate measures to ensure that grave violations of human rights brought to his attention, such as killings, torture, rape and disappearances are investigated, and that those responsible for such violations, including State officials and members of armed groups, are prosecuted and be held accountable for their actions ".
7. The order for implementation of the Charter for Peace and National Reconciliation
Under the pretext of wanting to overcome the "national tragedy" of the 90s, the so-called reconciliation measures were put in place by the state. However, the corresponding ordinance which was enacted in February 2006, violates however the fundamental principles that the Algerian state is committed to, in particular because :
A) The members of armed groups who surrendered to authorities are exempt from prosecution or benefit from a reduction of the decrease in penalty (chapter 2) if they did not commit massacres, bombings or rapes. In this case, those already convicted may receive a pardon. But the implementation of these measures is not transparent and often discriminatory.
B) The members of the security services who have committed serious violations of human rights can not be prosecuted (art. 45). All complaints shall be declared inadmissible. This measure tantamount to amnesty and is contrary to the fundamental right to an effective appeal established by the international texts.
C) Any statement, writing or any act interpreted as harming the image of Algeria carries a sentence of three to five years' imprisonment (Article 46). This is according to the Committee on Human Rights a violation of the right of expression.
Conclusion
Contrary to claims of the Algerian government, the various measures advocated by the law known as "civil Concord" or the "Charter for peace and national reconciliation" have not helped to overcome the sense of injustice produced by the situation of impunity. Furthermore, serious violations such as forced disappearances, arbitrary detention and incommunicado detention and torture continue to be reported. The authorities so far refused to recognize the majority of the associations for the defence of human rights and as a result, no attention is paid to their work and claims. In accordance with the Universal Periodic Review, states are encouraged to "carry out wide-ranging consultations at the national level with all stakeholders." To our knowledge, no independent organization for the defence of human rights has been consulted by the Algerian state.
(1) Third periodic report to the Committee on Human Rights of the United Nations on September 22, 2006. The final conclusions of the Committee were published on 1 November 2007.