Forced disappearance by Algerian authorities and cruel, inhuman and degrading treatment of a detainee

Facts

The author of the communication is an Algerian national whose son, Allal Drif, was arrested by the gendarmerie on 29 January 1995. The author received no information on her son, but was informed that he was detained by the gendarmerie, and witnesses claimed he was subject to interrogations and torture. The author claims that her son is a victim of enforced disappearance and that the State party has violated his son’s rights under articles 6 (right to life), 7 (torture, cruel, inhuman or degrading treatment), 9 (liberty and security), 10 (dignity), 14 (equality before courts) and 16 (recognition of personality) read with article 2 (legal framework/ effective remedy) of the Covenant, and his rights under articles 2, 7 and 14, as well as article 2(2) read with 2(3).

Admissibility

The Committee noted the claim that the author attempted to approach authorities for 10 years on the matter but no investigation was carried out, and the author’s letter to the Head of Government received a response of compensation which the author refused, and a follow-up on the investigation received no response. As the State party had further not provided any explanations or information to the Committee as to the effectiveness of other remedies, it held that all domestic remedies had been exhausted. The Committee also concluded this as the State party’s new ordinance prohibited recourse to justice on matters of security forces, therefore denying effective remedy. However, it concluded that as article 2 could not form the basis for a separate claim, it was inadmissible. The remaining claims were concluded to be sufficiently substantiated and therefore admissible.

Merits

The Committee noted that the author’s son was last seen in January 1995 but the State party had provided no evidence on his fate or confirmed his detention. It recalled its General Comment 20 on prohibition of torture, cruel, inhuman treatment in which it recommends State parties to take steps to prohibit incommunicado detention due to the degree of suffering faced when a person is removed from the outside world and is withdrawn from the protection of the law. As persons had confirmed his detention but the State party did not confirm the same or provide information, the Committee considered this a violation of article 7 with regard to the author’s son. Further, it noted that depriving a person of his liberty and then refusing to conceal his fate meant removing him from the protection of the law. Since the State party had not provided any evidence to demonstrate that it fulfilled its obligation to protect the life of Allal Drif, it had violated article 6 of the Covenant. The arbitrary arrest without rationale from the State party further led it to decide that there was also a violation of article 9, and his deliberate removal from the protection of the law constituted a denial of his right to recognition of person before the law, violating article 16.

Taking note of the anguish and distress faced by the author and his family for 27 years due to his son’s disappearance, the Committee noted that the author’s rights under article 7 had also been violated. Article 2 imposes a general legal obligation on State parties, including guaranteeing accessible, effective and enforceable mechanisms to assert their rights. The author’s attempts to request the authorities to carry out investigations and the impossibility of judicial recourse due to the State party’s new ordinance led to the Committee concluding that it had further violated article 2 read with articles 6, 7, 9 and 16 in respect of Allal Drif, and of article 2 read with article 7 in respect of the authors.. As a result of these findings, the Committee decided to not examine article 14 and article 10.

Recommendations

The State Party, in furtherance of its obligation to provide the author with an effective remedy, is obligated, inter alia:

• (a) To conduct a prompt, effective, comprehensive, independent, impartial and transparent investigation into the disappearance of the author’s son, Allal Drif, and to provide the author with detailed information as to the result of this investigation;
• (b) To immediately release him if he is still being held incommunicado;
• (c) In the event that he is deceased, to return his remains to his family with respect for dignity, in accordance with the traditions and norms of the victim;
• (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 author and his son, if alive, or his dependents with adequate compensation; and
• (f) To take measures to prevent similar violations from occurring in the future.

Implementation

Deadline: 8 January 2023

By: Smrithi Ramakrishnan