The authors of the communication are S. Drif and his wife K. Rafraf, Algerian nationals who claim that their son, Omar Drif, was the victim of an enforced disappearance attributable to the State party. On 9 June 1995, on his way home, Omar Drif was stopped by armed gendarmes who told him that they had been ordered to arrest him and bring him to the gendarmerie station. The authors contacted the competent administrative and judicial authorities to find out why their son had been detained and what had become of him, without any success. In the absence of a thorough investigation into the disappearance, the authors consider that the State party failed in its obligation to protect his right to life and to take steps to investigate what happened to him, in violation of article 6 (1) of the Covenant. Moreover, the authors’ complaints have gone unanswered and claim to be victims of a provision of the implementing legislation of the Charter for Peace and National Reconciliation that violates article 2 (2) of the Covenant. They also add that the provisions of Ordinance No. 06-01 are contrary to article 2 (3) read in conjunction with article 7 of the Covenant, since they have the effect of preventing any criminal proceedings against alleged perpetrators of enforced disappearance when such persons are agents of the State.
The authors stress that the anguish, uncertainty and distress caused by the disappearance and by the authorities urging them to undertake the compensation procedure constitute a form of cruel, inhuman or degrading treatment for his family, added to the fact that one of Omar Drif’s brothers also disappeared. Accordingly, the authors allege that the State party is responsible for a violation of article 7 of the Covenant in relation to them and to Omar Drif. They also consider that Omar Drif was deprived of the guarantees set out in article 9 of the Covenant, in particular the right to an effective remedy. In the absence of any investigation by the Algerian authorities, the authors’ argue that Omar Drif was deprived of his liberty and was not treated with humanity and dignity, in violation of his rights under article 10 of the Covenant. Lastly, they assert that, in keeping Omar Drif in detention without officially informing his family and friends, the Algerian authorities denied him the protection of the law and deprived him of his right to recognition as a person before the law, in violation of article 16 of the Covenant.
The Committee regrets the State party’s failure to cooperate by sharing its observations on the complaint. Submitting a communication five years after the exhaustion of domestic remedies can amount to an abuse of the right of submission, but the Committee recalls that the continuous nature of enforced disappearance implies a continuous obligation to investigate such cases. The Committee considers that the authors have sufficiently substantiated their other allegations for the purposes of admissibility of the claims made under articles 6 (1), 7, 9, 10, 14 and 16 of the Covenant, read alone and in conjunction with article 2 (3). Nevertheless, the Committee considers the authors’ claims under article 2 (2) and (3) of the Covenant, invoked separately, to be inadmissible under article 3 of the Optional Protocol.
The Committee therefore finds that the State party has failed in its duty to protect Omar Drif’s life, in violation of article 6 (1) of the Covenant. The Committee recognizes the degree of suffering involved in being held indefinitely without contact and considers that the disappearance of Omar Drif constitutes a violation of article 7 of the Covenant with respect to him. In view of the above, the Committee will not consider separately the claims related to the violation of article 10 of the Covenant. Since the author’s son was arbitrarily arrested, without a warrant, was not formally charged and was not brought before a judicial authority, the Committee finds a violation of article 9 of the Covenant. The Committee also finds that Omar Drif’s disappearance removed him from the protection of the law and deprived him of his right to be recognized as a person before the law, in violation of article 16 of the Covenant.
The Committee also takes note of the distress caused to the authors by the disappearance over 26 years ago and considers that the facts before it reveal a violation of article 7 of the Covenant with regard to the authors. Lastly, the Committee notes that, although the authors have not expressly invoked a violation of article 2 (3), read in conjunction with articles 6, 7, 9 and 16 of the Covenant, they refer to the obligation imposed on States parties to ensure that everyone has accessible, effective and enforceable remedies for asserting the rights guaranteed by the Covenant. Thus, the Committee finds a violation of article 2 (3), read in conjunction with articles 6, 7, 9 and 16 of the Covenant, with regard to Omar Drif and of article 2 (3), read in conjunction with article 7 of the Covenant, with regard to the authors. In view of the above, the Committee will not consider separately the claims related to the violation of article 14 of the Covenant.
The State party is obliged, inter alia:
In addition, the State party is under an obligation to take steps to prevent similar violations in the future and to ensure that it does not impede enjoyment of the right to an effective remedy for such serious violations as torture, extrajudicial execution and enforced disappearance. 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 Ordinance No. 06-01 that are incompatible with the Covenant to ensure that the rights enshrined in the Covenant can be enjoyed fully in the State party.
Deadline: 4 October 2022
More info on the case:
Algeria Watch - Disparitions forcées
By: Irene Aparicio