Decision
the Committee. The State party observes that all these “individual” communications dwell on the general context in which the disappearances occurred. The State party notes that the complaints focus solely on the actions of the security forces, without ever mentioning those of all the armed groups that used criminal techniques of concealment in order to incriminate the armed forces. 5. The State party indicates that it will not address the merits of the aforementioned communications until the issue of their admissibility has been settled. It adds that all judicial or quasi-judicial bodies have the obligation to deal with preliminary questions before considering the merits. It considers that the decision in the case in point to consider the questions of admissibility and the merits jointly and simultaneously — aside from the fact that it was not arrived at on the basis of consultation — seriously prejudices the proper consideration of the communications in terms of both their general nature and their intrinsic particularities. Referring to the rules of procedure of the Human Rights Committee, the State party notes that the sections relating to the Committee’s procedure to determine the admissibility of communications are separate from those relating to the consideration of communications on the merits, and that therefore these questions could be considered separately. Concerning the exhaustion of domestic remedies, the State party stresses that the author did not submit any complaints or requests for information through channels that would have allowed consideration of the case by the Algerian judicial authorities. 5. Recalling the Committee’s jurisprudence regarding the obligation to exhaust domestic remedies, the State party stresses that mere doubts about the prospect of success or concerns about delays do not exempt the author from the obligation to exhaust these remedies. As to the question of whether the promulgation of the Charter for Peace and National Reconciliation has barred the possibility of appeal in this area, the State party replies that the failure by the author to submit her allegations to examination has prevented the Algerian authorities from taking a position on the scope and limitations of the applicability of the Charter. Moreover, under the Ordinance in question, the only proceedings that are inadmissible are those brought against “members of any branch of the defence and security forces of the Republic” for actions consistent with their core duties to the Republic, namely, to protect persons and property, safeguard the nation and preserve its institutions. On the other hand, any allegations concerning actions attributable to the defence or security forces that can be proved to have taken place in any other context are subject to investigation by the appropriate courts. 5. On 6 October 2010, the State party, submitting a new copy of the “background memorandum on the inadmissibility of individual communications submitted to the Human Rights Committee in connection with the implementation of the Charter for Peace and National Reconciliation”, reiterated that it contested the admissibility of the communication. Authors’ comments on the State party’s observations 6. On 5 January 2011, the author submitted comments on the State party’s observations on admissibility and provided additional arguments on the merits. 6. The author points out that the State party has recognized the competence of the Committee to consider individual communications. This competence is of a general nature and its exercise by the Committee is not subject to the discretion of the State party. In particular, it is not for the State party to determine whether it is appropriate for the Committee to take up a specific case. That is for the Committee to decide when it considers the communication. The author considers that the adoption by the State party of a comprehensive domestic settlement mechanism cannot be applied in respect of the Human Rights Committee or constitute grounds for declaring the communication inadmissible. In the present case, the legislative measures adopted amount to a violation of the rights enshrined in the Covenant, as the Committee has previously observed.6 6. The author recalls that the declaration of a state of emergency by Algeria on 9 February 1992 does not affect the right of persons to submit individual communications to the Committee. Article 4 of the Covenant allows for derogations from certain provisions of the Covenant during states of emergency but does not affect the exercise of rights under the Optional Protocol. 6. The author again refers to the State party’s argument that the requirement to exhaust domestic remedies calls for the author to institute criminal proceedings by filing a complaint with the investigating judge and suing for damages, in accordance with articles 72 and following of the Code of Criminal Procedure. She recalls that this procedure, if the complaint is not to be declared inadmissible, is subject to the payment of a surety or “procedural fee”, the amount of which is set arbitrarily by the investigating judge. She considers that the procedure represents a financial deterrent to the persons concerned who, furthermore, have no guarantee that it will actually result in proceedings being initiated. The author considers that, given the serious nature of the alleged offences, it was the responsibility of the competent authorities to take up the case. The author refers to the Committee’s jurisprudence in this respect.7 6. The author reiterates moreover that, following the arrests of her husband and her son, she tried to find out from the security forces what had happened to them, to no avail. She also informed the prosecution services of the courts of Taher and Jijel. At no time did any of these authorities ever conduct an investigation into the alleged violations. Consequently, the author and her family cannot be reproached for not having exhausted all domestic remedies since it was the State party that failed to carry out the necessary investigations incumbent upon it. 6. Furthermore, the author notes that the State party seems to contend that the ban, pursuant to article 45 of Ordinance No. 06-01, on bringing proceedings, individual or joint, against members of the State defence and security forces is not absolute, and that the position of the national courts regarding the way in which article 45 would be applied may not be prejudged. The author recalls that the complaint that she filed officially on 25 June 2007 requesting an investigation into the disappearance of her husband and her son was discontinued by the public prosecutor on 17 January 2009, the grounds for the decision being the application of article 45 of Ordinance No. 06-01. The author therefore concludes that Ordinance No. 06-01 has indeed put an end to any possibility of bringing civil or criminal proceedings for crimes committed by the security forces during the civil war, and that the Algerian courts are obliged to declare any such claim inadmissible. 6. With regard to the merits, the author notes that the State party appears to dispute the very fact that massive and systematic enforced disappearances occurred in Algeria, since it paints a set of scenarios involving disappearance, all of which exclude the responsibility of agents of the State. In this context, the author considers it paradoxical that the State party has paid compensation to 5,704 beneficiaries of victims out of the 8,023 persons registered as having disappeared. The State party addresses the issue of enforced disappearances solely from a financial point of view, without trying to identify the perpetrators, who are, on the contrary, presented as “those responsible for saving the country”. Furthermore, the State party has never initiated a comprehensive investigation into the cases of enforced disappearance, as has been recommended several times by different international bodies.8 6. With regard to the State party’s argument that it is entitled to request that the admissibility of the communication be considered separately from the merits, the author refers to rule 97, paragraph 2, of the Committee’s rules of procedure, which permits the working group or the special rapporteur to decide, because of the exceptional nature of the case, to request a written reply that relates only to the question of admissibility. Consequently, it is not for the author of the communication or the State party to make such assessments; that is the sole prerogative of the working group or the special rapporteur. The author considers that the State party was required to submit explanations or observations concerning both the admissibility and the merits of the communication. 6. The author also notes that, since the State party has not submitted observations on the merits, the Committee must base its decision on the existing information and that the author’s allegations must be taken fully into consideration. The author notes that the State party’s refusal to reply to her allegations and to deal with the present communication in its own right is motivated by the involvement of the security services in the disappearance of her husband and her son. The author maintains that, given that the State party has not refuted the alleged facts, these must be considered as proven. Issues and proceedings before the Committee Consideration of admissibility 7. The Committee recalls that the joinder of admissibility and merits, in conformity with the decision by the Special Rapporteur (see para. 1.2), does not preclude the two matters being considered separately by the Committee. Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant. 7. As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement. 7. The Committee notes that, in the State party’s view, the author and her family have not exhausted domestic remedies, since they did not bring the matter before the investigating judge and sue for damages in criminal proceedings under articles 72 and 73 of the Code of Criminal Procedure. The Committee also notes that, according to the State party, the author has written letters to political and administrative authorities and has petitioned representatives of the prosecution service (public prosecutors), but has not, strictly speaking, initiated legal action and seen it through to its conclusion by availing herself of all available remedies of appeal and cassation. The Committee also takes note of the author’s argument that several complaints were lodged with the public prosecutors of the courts of Taher and of Jijel, and that letters were sent to the Minister of Justice, as well as to the President of the Republic. At no time did any of these authorities conduct an investigation into the alleged violations. Lastly, the Committee notes that, according to the author, article 46 of Ordinance No. 06-01 penalizes any person who files a complaint pertaining to actions covered by article 45 thereof. 7. The Committee recalls that the State party has a duty not only to carry out thorough investigations of alleged violations of human rights, particularly enforced disappearances or violations of the right to life, brought to the attention of its authorities, but also to prosecute, try and punish anyone held to be responsible for such violations. Although the family of Tahar and Bachir Bourefis repeatedly contacted the competent authorities concerning their disappearance, the State party failed to conduct a thorough and effective investigation into the events, despite the fact that serious allegations of enforced disappearance were involved. The State party has also failed to provide sufficient information indicating that an effective remedy is indeed available while Ordinance No. 06-01 of 27 February 2006 continues to be applied, notwithstanding the Committee’s recommendations that it should be brought into line with the Covenant. The Committee considers that to sue for damages for offences as serious as those alleged in the present case cannot be considered a substitute for charges that should be brought by the public prosecutor. Moreover, given the vague wording of articles 45 and 46 of the Ordinance, and in the absence of satisfactory information from the State party about their interpretation and actual enforcement, the author’s fears about the effectiveness of filing a complaint are reasonable. The Committee therefore concludes that article 5, paragraph 2 (b), of the Optional Protocol is not an obstacle to the admissibility of the communication. 7. The Committee considers that, for a communication to be deemed admissible, the author must have exhausted only the remedies relevant to the alleged violation; in the present case, remedies with respect to enforced disappearance. 7. The Committee considers that the author has sufficiently substantiated her allegations insofar as they raise issues under articles 6 (para. 1), 7, 9, 10 (para. 1), 16, 17 and 23 (para. 1) and 2 (para. 3) of the Covenant, and therefore proceeds to consider the communication on the merits. Consideration of the merits 8. The Human Rights Committee has considered the present communication in the light of all the written information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. 8. The State party submitted collective and general observations in response to serious allegations by the author and has been content to argue that communications incriminating public officials, or persons acting on behalf of public authorities, in cases of enforced disappearances between 1993 and 1998 should be considered within the broader context of the sociopolitical situation and security conditions that prevailed in the country during a period when the Government was struggling to combat terrorism. The Committee recalls its jurisprudence,13 according to which the State party may not invoke the provisions of the Charter for Peace and National Reconciliation against persons who invoke provisions of the Covenant or who have submitted or may submit communications to the Committee. The Covenant demands that the State party concern itself with the fate of every individual and treat every individual with respect for the inherent dignity of the human person. Ordinance No. 06-01, without the amendments recommended by the Committee, is in this case a contributing factor in impunity and therefore cannot, as it currently stands, be considered compatible with the provisions of the Covenant. 8. The Committee notes that the State party has not replied to the author’s claims concerning the merits of the case and recalls its jurisprudence,14 according to which the burden of proof should not be solely on the author of a communication, especially given that the author and the State party do not always have the same degree of access to evidence and that often only the State party has the necessary information. It is implicit in article 4, paragraph 2, of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its representatives and to provide the Committee with the information available to it. In the absence of any explanations from the State party in this respect, due weight must be given to the author’s allegations, provided they have been sufficiently substantiated. 8. The Committee notes that the author asserts that her husband, Tahar Bourefis, was arrested by soldiers in her presence on 23 August 1996 at his residence, and that her son, Bachir Bourefis, was arrested in the presence of his wife on 22 December 1996, after being summoned to the local gendarmerie. It also notes that, according to the author, such disappearances entail a high risk of violation of the right to life of the victims and that, considering their prolonged absence as well as the circumstances and context of their arrest, it seems probable that Tahar and Bachir Bourefis died in detention. The Committee notes that the State party has produced no evidence refuting the author’s allegation. The Committee recalls that, in cases of enforced disappearance, the deprivation of liberty, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate of the disappeared person, effectively removes the person from the protection of the law and places his or her life at serious and constant risk, for which the State is accountable. In the present case, the Committee notes that the State party has produced no evidence to indicate that it has fulfilled its obligation to protect the lives of Tahar and Bachir Bourefis. The Committee therefore concludes that the State party has failed in its duty to protect the lives of Tahar Bourefis and Bachir Bourefis, in violation of article 6, paragraph 1, of the Covenant.16 8. The Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its general comment No. 20 (1992) on the prohibition of torture or other cruel, inhuman or degrading treatment or punishment, which recommends that States parties should make provisions against incommunicado detention. It notes in the case in question that Tahar Bourefis was arrested by soldiers on 23 August 1996 and Bachir Bourefis was arrested by gendarmes on 22 December 1996, and that their fate is still unknown. In the absence of a satisfactory explanation from the State party, the Committee considers that these disappearances constitute a violation of article 7 of the Covenant with regard to Tahar and Bachir Bourefis.17 8. The Committee also takes note of the anguish and distress caused to the author and her children by the disappearance of Tahar and Bachir Bourefis. It considers that the facts before it disclose a violation with respect to her of article 7 of the Covenant read alone and in conjunction with article 2, paragraph 3.18 8. With regard to the alleged violation of article 9, the Committee notes the author’s claim that Tahar Bourefis was arrested by soldiers on 23 August 1996 and Bachir Bourefis was arrested by gendarmes on 22 December 1996, that they were not charged or brought before a judicial authority, which would have enabled them to challenge the lawfulness of their detention, and that no official information was given to their family regarding their whereabouts or their fate, despite the fact that the authorities certified that their disappearances had occurred “in the context of the national tragedy”. In the absence of satisfactory explanations from the State party, the Committee finds a violation of article 9 with regard to Tahar and Bachir Bourefis.19 8. Regarding the complaint under article 10, paragraph 1, the Committee reiterates that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty and that they must be treated with humanity and respect for their dignity. In view of the incommunicado detention of Tahar and Bachir Bourefis and in the absence of information provided by the State party in that regard, the Committee finds a violation of article 10, paragraph 1, of the Covenant.20 8. With regard to the alleged violation of article 16, the Committee reiterates its established jurisprudence, according to which the intentional removal of a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person as a person before the law if the victim was in the hands of the State authorities when last seen and if the efforts of his or her relatives to obtain access to potentially effective remedies, including judicial remedies (Covenant, art. 2, para. 3) have been systematically impeded. In the present case, the Committee notes that the State party has not furnished any explanation concerning the fate or whereabouts of Tahar or Bachir Bourefis, despite the multiple requests addressed by the author to the State party. The Committee concludes that the enforced disappearance of Tahar and Bachir Bourefis nearly 17 years ago denied them the protection of the law and deprived them of their right to recognition as persons before the law, in violation of article 16 of the Covenant. 8. With regard to the alleged violation of article 17, the Committee notes that the State party did not provide any justification for or clarification of the entry of soldiers into the family home of Tahar Bourefis in the middle of the night without a warrant. The Committee concludes that the entry of officials into the family home of Tahar Bourefis in such circumstances constitutes unlawful interference with their home, in violation of article 17 of the Covenant.22 8. In light of the above, the Committee will not consider the claims based on the violation of article 23, paragraph 1, of the Covenant separately. 8. The author invokes article 2, paragraph 3, of the Covenant, which imposes on States parties the obligation to ensure an effective remedy for all persons whose Covenant rights have been violated. The Committee attaches importance to the establishment by States parties of appropriate judicial and administrative mechanisms for addressing claims of rights violations. It refers to its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, which states that failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. In the present case, although the victims’ family repeatedly contacted the competent authorities, including the prosecutor of the courts of Taher and Jijel, regarding the disappearances of Tahar and Bachir Bourefis, all their efforts were in vain, and the State party failed to conduct a thorough and effective investigation into the disappearance of the author’s husband and son. Furthermore, the absence of the legal right to undertake judicial proceedings since the promulgation of Ordinance No. 06-01 on the implementation of the Charter for Peace and National Reconciliation continues to deprive Tahar and Bachir Bourefis, the author and her family of access to an effective remedy, since the Ordinance prohibits the initiation of legal proceedings to shed light on the most serious crimes, such as enforced disappearance. The Committee concludes that the facts before it reveal a violation of article 2 (para. 3), read in conjunction with articles 6 (para. 1), 7, 9, 10 (para. 1) and 16 of the Covenant with regard to Tahar and Bachir Bourefis, of article 2 (para. 3) read in conjunction with article 17 of the Covenant with regard to Tahar Bourefis, and of article 2 (para. 3) read in conjunction with articles 7 and 17 of the Covenant with regard to the author. 9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the information before it discloses violations by the State party of articles 6 (para. 1), 7, 9, 10 (para. 1), 16 and 17, read alone and in conjunction with article 2 (para. 3) of the Covenant with regard to Tahar Bourefis. It also finds a violation by the State party of articles 6 (para. 1), 7, 9, 10 (para. 1) and 16 of the Covenant, read alone and in conjunction with article 2 (para. 3), of the Covenant with regard to Bachir Bourefis. Lastly, it finds a violation of articles 7 and 17 of the Covenant, read alone and in conjunction with article 2 (para. 3) of the Covenant with regard to the author. 10. In accordance with article 2, paragraph 3, of the Covenant, the State party is under an obligation to provide the author and her family with an effective remedy, including by: (a) conducting a thorough and effective investigation into the disappearance of Tahar and Bachir Bourefis; (b) providing the author and her family with detailed information about the results of its investigation; (c) releasing them immediately if they are still being detained incommunicado; (d) in the event that Tahar and Bachir Bourefis are deceased, handing over their remains to their family; (e) prosecuting, trying and punishing those responsible for the violations committed; and (f) providing adequate compensation to the author and her family for the violations suffered and to Tahar and Bachir Bourefis, if they are still alive. Notwithstanding the terms of Ordinance No. 06-01, the State party should ensure that it does not impede enjoyment of the right to an effective remedy for crimes such as torture, extrajudicial killings and enforced disappearances. The State party is also under an obligation to prevent similar violations in the future. 11. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.