Committee finds a violation due to the fact that the State failed to give an effective remedy to the aggrieved party, in their claim of an enforced disappearance.

Facts

The author of the communication is an Algerian national who claims that the State party violated her son’s rights under articles 2, 6, 7, 9, 10, and 16, and her own rights under articles 2 and 7 read in conjunction with article 14 of the Covenant.

On 13 November 1995, the author’s son was walking with a friend when a blue van with two plain-clothes police officers on board stopped and immediately apprehended the author’s son. Following the van driving away, the author’s son was never seen again. The friend immediately alerted the mother, who made every effort to find her son by visiting a possible site of detainment where a number of people had reported seeing her son. She was eventually ordered to never set her foot on the military premises again.

Two years later, she submitted a complaint to the public prosecutor asking them to open an investigation into the fate of her son. This complaint, in conjunction with the following complaints, remains unanswered. On 13 July 2008, the author received a death certificate concerning her son. It stated that after investigation, it appeared to be the case that he had joined an armed group and that he had since died in this capacity. The author challenged the veracity of these claims given that numerous witnesses had seen him at the military barracks as well as had witnessed his unwilling apprehension. On this basis, the author submitted a number of complaints, yet no investigation has to date been opened.

In light of these facts, the author alleges that her son was a victim of an enforced disappearance. She notes that while no provision of the Covenant specifically refers to such instances, the practice involves violations to the right to life, the right not to be subjected to torture and other cruel, inhuman or degrading treatment, and the right to liberty and security of the person. In the present case, she alleges that the State party violated her son’s rights under articles 2, 6, 7, 9, 10, 14, and 16 of the Covenant.

Admissibility

• The Committee ascertained that the same matter was not already under consideration before another international body of investigation or settlement.
• The Committee considered that the author’s claims under article 2 (2) and (3) were inadmissible as they can only be invoked in conjunction with other substantive articles of the Covenant.
• The Committee was of the opinion that the remainder of claims under articles 6 (1), 7, 9, 10 (1), 14, and 16 of the Covenant were sufficiently substantiated for the purposes of admission, and it thus proceeded to the examination of the merits.

Merits

The Committee recalled its earlier jurisprudence noting that the burden of proof cannot rely solely on the author in cases of enforced disappearances because the they do not always have equal access to evidence and often only the State has the necessary information. In the absence of information by the State party, due weight should be given to the author’s allegation as long as they are sufficiently substantiated.

In the present case, the Committee found that there was no evidence on file indicating that the State party fulfilled its obligation to protect the life of the author’s son. Accordingly, the Committee concluded that the State party acted in violation of his rights under article 6(1) of the Covenant.

Followingly, the Committee recognized the degree of suffering involved in detention without contact with the outside world for an indefinite period of time. Given that witnesses had reportedly seen the author’s son at the military barracks, and in the absence of any explanation from the State party, the Committee considered that he may still be held in incommunicado detention by Algerian authorities and this disappearance amounted to a violation of article 7 of the Covenant.

In view of this, the Committee did not consider separately the claims based on the violation of article 10 of the Covenant.

Similarly, with reference to the lack of information by the State party, and the allegations that he was arbitrarily arrested without a warrant, nor any following charge or with the possibility to challenge his detention in front of a judicial authority, the Committee also considered that there was a violation of the author’s sons rights under article 9 of the Covenant.

The Committee also found that that the enforced disappearance for more than 24 years removed him from the protection of the law and deprived him of his right to the recognition of his legal personality, in violation of article 16 of the Covenant.

In relation to the claims under article 14, the Committee found that the denial of access to the author to the courts amounted to a violation of article 14 (1).

Given the lack of any access to an effective remedy barred by Ordinance 06-01 implementing the Charter for Peace and National Reconciliation and the numerous attempt made by the author, the Committee also concluded that the facts before it disclosed a violation of article 2 read in conjunction with articles 6, 7, 9, and 16 of the Covenant in respect to the author’s sons rights, and article 2 read in conjunction with article 7 in respect of the author.

The Committee also noted the significant anguish and distress caused to the author and her family by the disappearance of her son. On this basis, it found that the State party had violated the author’s own rights under article 7 of the Covenant.

Recommendations

The State party is under an obligation to provide the author with an effective remedy. It is required to make full reparation to individuals whose Covenant rights have been violated. In the present case, the State party is obliged to:

• (a) conduct a prompt investigation that is effective, thorough, independent, impartial and transparent into the disappearance of Abdelhakim Houari and provide the author with detailed information about the results of its investigation;
• (b) release Abdelhakim Houari immediately if he is still being held incommunicado;
• (c) in the event that Abdelhakim Houari is deceased, hand over his remains to his family, under decent conditions, in accordance with the cultural norms and customs of the victims;
• (d) prosecute, try and punish those responsible for the violations committed;
• (e) provide full reparation, including adequate compensation, to the author, and to Abdelhakim Houari if he is alive;
• (f) provide appropriate satisfaction to the author.

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.

It is also under an obligation to take steps to prevent similar violations in the future. To that end, the Committee is of the view that the State party should review its legislation in accordance with its obligation under article 2 (2) of the Covenant and, in particular, repeal the provisions of the aforementioned Ordinance that are incompatible with the Covenant, to ensure that the rights enshrined in the Covenant can be enjoyed fully in the State party.

Deadline for follow-up information : 27 October 2020