Enforced disappearance for more than 24 years

Facts

Mustapha Ferhati, 26 years old, was shot and taken to an unknown location by agents of the judicial police brigade accompanied by agents of the Intelligence and Security Department. Since that day, his family has never heard from him. His family was never informed of Mustapha's arrest, if not for a newspaper article detailing the circumstances surrounding the arrest and the confirmatory account of a neighbour who was able to witness the incident. The authors were subjected to harassment, multiple arbitrary detentions, and acts of torture following the disappearance of Mustapha. His family continued to search for him, but on October 20, 2002, the National Advisory Commission for the Promotion and Protection of Human Rights informed the family of the existence of a declaration of burial in the name of Mustapha. The authors claim that the State party violated the rights of Mustapha under articles 6(1) and 9 of the Covenant due to the enforced disappearance and deprivation of liberty as well as article 7 for the emotional distress the ordeal has brought to the family of Mustapha.

Admissibility

The examination of the case of Mustapha Ferhati by the Working Group on Enforced or Involuntary Disappearances did not render the communication inadmissible under article 5 (2) (a) of the Optional Protocol. The State party has also failed to provide any specific explanation that would make it possible to conclude that an effective remedy is available. Thus, the Committee considers that it is not precluded from considering the communication under article 5 (2) (b) of the Optional Protocol. The authors have sufficiently substantiated their claims articles 6, 7, 9, 10 and 16, read alone and in conjunction with Article 2 (para. 3) of the Covenant, in respect of Mustapha Ferhati, and Article 7 for physical torture, anguish and distress in the case of Hacène Ferhati, and for anguish and distress in the case of Fatna Ferhati read alone and in conjunction with article 2 (para. 3), as well as articles 9 and 14 of the Covenant in respect of the authors for purposes of admissibility.

Merits

Enforced disappearance constitutes a continuing violation of several rights. 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 that person from the protection of the law and places his life at serious and constant risk for which the State is accountable. The State party has failed in its duty to protect the life of Mustapha Ferhati, in violation of article 6 (1) of the Covenant.

In the absence of any communication from Mustapha nor any explanation from the State party, the Committee considers that this disappearance constitutes a violation of article 7 of the Covenant. Furthermore, Mustapha was arbitrarily arrested without a warrant and was not formally charged or brought before a judicial authority, in violation of article 9 of the Covenant. The State party has not provided any explanation concerning the fate or whereabouts of Mustapha. The Committee finds that the enforced 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.

Lastly, the Committee takes note of the anguish and distress caused to the author and the family for more than 24 years, which constitutes a violation of article 7 of the Covenant, read alone and in conjunction with article 2 (3), in respect of the author.

Recommendations

The State party is obliged, inter alia, to:

(a) conduct a prompt, effective, comprehensive, independent, impartial and transparent investigation into the disappearance of Mustapha Ferhati and to provide the authors with detailed information as to the results of this survey;

(b) immediately release Mustapha Ferhati if he is still being held incommunicado;

(c) in the event that Mustapha Ferhati is deceased, to return his remains to his family;

(d) to prosecute, try and punish those responsible for the violations committed with sanctions proportionate to the seriousness of the violations;

(e) to provide the authors and Mustapha Ferhati, in the event that he is still alive, with adequate compensation;

(f) to ensure that authors have access to a procedure for reparation of the harm suffered as a result of their detention; and

(g) to ensure that Hacène Ferhati has access to a procedure for reparation of the damage suffered during his arrest on 23 October 1997.

Implementation

Deadline: 8 January 2023

By Maricon Torres Lorenzo