Kamela Allioua and Fatima Zohra Kerouane v. Algeria

• CCPR

International Covenant on Civil and Political Rights: Articles 2 paragraph 3, 6 paragraph 1, 7, 9 paragraphs 1, 2, 3 and 4, 10 paragraphs 1 and 2, 16, 23 paragraph 1 and 24 paragraph 1

Optional Protocol to the International Covenant on Civil and Political Rights: Article 5 paragraph 2 (b)

General Comment No. 17 - Rights of the child, (Article 24); General Comment No. 20 - Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment, Article 7; General Comment No. 21 - Humane treatment of persons deprived of their liberty (Article 10); and General Comment No. 31 Nature of the General Legal Obligation Imposed on States Parties to the Covenant

The authors are Kamela Allioua and Fatima Zohra Kerouane, who submitted the communication on their own behalf, and on behalf of their relatives, Adel Kerouane (born 11 October 1974), Tarek Kerouane (born 3 June 1977) and Mohamed Kerouane (born 12 August 1980), who were brothers. The family are Algerian nationals.

On 12 April 1994, Adel Kerouane (aged 19) was arrested by security officials. During the arrest, he suffered a bullet wound and was taken to hospital. About two weeks later, Adel disappeared from the hospital and has not been seen by his family since.

On 21 May 1994, Tarek Kerouane (aged 16) was transported home by about 20 police officers. Tarek was held in a car while the family home was searched. He has not been seen by his family since.

On 22 February 1996, Mohamed Kerouane (aged 15) was arrested by gendarmerie officials. Three months later, the family received information that Mohamed was dead, and that his head and body bore the marks of torture and ill-treatment. He has not been seen by his family since.

During 1994 until 2006, the authors and their family made repeated unsuccessful requests regarding the disappearance of the brothers, to the various authorities, including the army barracks, the police and gendarmerie stations in the area, the Constantine prosecutor’s office, the Ministry of the Interior, the President, the National Observatory for Human Rights and the State prosecutor at the Constantine court. In particular, the family attempted to assert the provisions of chapter IV of Ordinance No. 06-01 of 27 February 2006, on the Charter for Peace and National Reconciliation (“Ordinance No. 06-01”), which dealt with the handling of cases of disappearance. Under these provisions, a thorough investigation and inquiries should be carried out before a certificate of disappearance or an official declaration of death could be drawn up. Despite no investigation being conducted, the authors received certificates for Adel and Mohamed attesting to their deaths, and a certificate for Tarek attesting to his disappearance, all dated 28 May 2006. In contrast, on 28 June 2006, the Constantine Court declared Tarek dead, listing his date of death as 31 May 1994. The family also later received a death certificate for Adel dated 7 November 2006, which listed his date of death as “1994”.

The authors submitted that they had exhausted all domestic remedies. In addition, the authors maintained that they no longer had the legal right to take judicial proceedings since the promulgation of Ordinance No. 06-01.

On 16 February 2012, the authors submitted that Adel, Tarek and Mohamed Kerouane were victims of enforced disappearance in violation of Articles 6 paragraph 1 (right to life), 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), 9 (liberty and security of person; protection against arbitrary arrest and/or detention), 10 paragraph 1 (dignity of persons deprived of liberty), 16 (right to recognition before the law), 23 paragraph 1 (protection of family), read alone and in conjunction with Article 2 paragraph 3 (right to remedies). The authors also claimed a violation by the Algerian State of Articles 10 paragraph 2 (treatment of accused juvenile persons) and 24 paragraph 1 (protection of child) in respect of Tarek and Mohamed. The authors further claimed that they and their families were themselves victims of a violation of Articles 7 and 23 paragraph 1, read alone and in conjunction with Article 2 paragraph 3.

The authors claimed that Adel, Tarek and Mohamed were under the responsibility of the State party when they were arrested and that the State was obliged to guarantee their right to life. The authors claimed that given the brothers had been missing since 1994 and 1996, the chances of finding them alive was virtually zero. Therefore, the State party had violated the brothers’ rights under Article 6. In addition, the authors submitted that the adoption, retention and implementation of Ordinance No. 06-01 constituted a violation of the brothers’ rights of Article 6, read in conjunction with Article 2 paragraph 3, as it provided for impunity for those responsible for the crime of enforced disappearance and curtailed effective remedy.

The authors referred to the Committee’s established jurisprudence that enforced disappearance constituted a violation of Article 7 in respect of both the victim and the victim’s family. Adel, Tarek and Mohamed were arbitrarily arrested by State officials in 1994 and 1996. Since then they were held incommunicado. Therefore, the State party violated their rights under Article 7. Additionally, it appeared Mohamed was subjected to torture and other cruel, inhuman or degrading treatment.

The authors noted that the family had no news of the brothers for 18 and 20 years. The authors claimed that the anguish and distress felt by the authors, and by their relatives, together with the State party’s refusal to make effective inquiries to establish the fate of the disappeared persons, amounted to a violation of Article 7, with respect of the authors.

The authors argued that, read in conjunction with Article 2 paragraph 3, Article 7 imposed on States parties the obligation to put an immediate stop to all the acts prohibited under Article 7, to guarantee the right to lodge complaints against such acts, and to take action on those complaints by having the competent authorities conduct investigations in order to render the remedies effective. The authors noted that the obligation to put a stop to the violation persisted as long as the missing person was unaccounted for. Adel and Tarek were missing for 20 years, and Mohamed was missing for 18 years. The authors claimed that the State party was required to take steps to halt the violation of Article 7.

The authors claimed that there was nothing to indicate that the brothers’ arrest and subsequent deprivation of liberty was based on a procedure established in law and no arrest warrant wasproduced. The duration of the brothers’ detention and the places where they were being held, had not been specified. Equally, given the circumstances of the brothers’ arrest and detention, in all probability they were never informed of the criminal charges against them. The brothers had no possibility to challenge the legality of their detention or apply to a judge for their release. No compensation had been awarded to the brothers’ family for their unlawful arrest and detention. These facts amounted to a violation of Article 9. In addition, the State party had not conducted any investigation into the disappearance, and those responsible for the offence had not been brought to justice, in violation of Article 2 paragraph 3, read in conjunction with Article 9.

The authors claimed that it had been established that the brothers were victims of enforced disappearance, and that their right to be treated with respect for the inherent dignity of the human person, as guaranteed under Article 10 paragraph 1, had been violated. The authors further claimed that having been subjected to enforced disappearance and held incommunicado for an indefinite period, the brothers were removed from the protection of the law, in violation of Article 16.

The authors claimed that the enforced disappearance of the brothers had seriously distressed the authors and their family, and that their family life had been completely destroyed. The authors submitted that, by its actions and omissions, the State party had failed in its duty of protection towards the family, in violation of Article 23 paragraph 1.

The authors noted that Tarek and Mohamed where both children when arrested. The authors claimed that their arbitrary detention and the authorities’ inertia in the face of their disappearance demonstrated that the State party did not provide them with the protection proper to their status as minors and, in particular, that their case was not adjudicated “as speedily as possible”. They were also deprived of all contact with their family, which was not in the best interests of the child. This amounted to a violation of Articles 24 paragraph 1 and Article 10 paragraph 2 (b) (brought as speedily as possible for adjudication).

On 26 February 2013 the State party submitted its observations, which merely referred the Committee to “the Algerian Government’s background memorandum on the inadmissibility of communications submitted to the Human Rights Committee in connection with the implementation of the Charter for Peace and National Reconciliation” and to its additional memorandum on the inadmissibility of the communication. These documents asked the Committee, among others, to: recognize that the authorities of the State party had established a comprehensive domestic mechanism for processing and settling the cases referred to in these communications; to find the communication inadmissible; and to request that the authors seek an alternative remedy.

Regarding the merits, the State party made no comments.

On 3 May 2013, the authors submitted their comments on the State party’s observations. The authors maintained that they had exhausted all available remedies. The remedies mentioned by the State party, including the possibility of bringing the matter before the investigating judge and suing for damages in criminal proceedings, would be completely ineffective. Citing the Committee, the authors noted that Ordinance No. 06-01 promoted impunity, violated the right to an effective remedy and was not compatible with the Covenant.

Regarding the merits, the authors asserted that the absence of any response by the State party on the merits, constituted tacit acceptance of the accuracy of the facts they presented.

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On 28 February 2012, the Committee requested the State party refrain from invoking its national legislation, and specifically Ordinance No. 06-01, against the authors and their family members.

Consideration of admissibility

The Committee found that the communication was admissible in part. The Committee considered that the State party had failed to provide sufficient evidence that an effective remedy was available, meanwhile Ordinance No. 06-01 continued to be applied despite the Committee’s recommendation that it should be brought into line with the Covenant. The Committee further found that the authors had sufficiently substantiated their allegations insofar as they raise issues under Articles 2 paragraph 3, 6 paragraph 1, 7, 9, 10 paragraph 1, 16, 23 paragraph 1 and 24 paragraph 1. However, the authors had not applied for compensation for the arbitrary or unlawful detention of the brothers, and thus the claim under Article 9 paragraph 5 (right to compensation due to unlawful arrest or detention) was inadmissible.

Consideration of the merits

The Committee found a violation of Articles 6 (right to life), 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), 9 (liberty and security of person; protection against arbitrary arrest and/or detention), 10 (treatment of persons deprived of liberty) and 16 (right to recognition before the law), read alone and in conjunction with Article 2 paragraph 3 (right to remedies), in respect of Adel, Tarek and Mohamed Kerouane. In addition, the Committee found a violation of Article 24 paragraph 1 (protection of child), read alone and in conjunction with Article 2 paragraph 3, in respect of Tarek and Mohamed. The Committee further found a violation of Article 7, read alone and in conjunction with Article 2 paragraph 3, in respect of the authors.

The Committee noted that the State party had not commented on the merits of the case. The Committee recalled its jurisprudence, according to which the burden of proof should not rest solely on the author of a communication, especially given that the author and the State party did not always have the same degree of access to evidence and that often only the State party was in possession of the necessary information.

The Committee noted that the facts submitted by the authors regarding the brothers’ disappearance following their arrests by State officials, including the authors claim that the chances of finding them alive was virtually zero. The Committee also noted that incommunicado detention entailed a high risk of violation of the right to life. The Committee further noted that the State party had produced no evidence to indicate that it had fulfilled its obligation to protect the lives of Adel, Tarek and Mohamed. The Committee therefore concluded that the State party had violated Article 6.

The Committee recognized the degree of suffering involved in being held indefinitely without contact with the outside world. The Committee noted that, according to the authors, the brothers had been arrested by State officials, and in addition Mohamed’s body was later observed to have traces of torture and ill-treatment. In the absence of any satisfactory explanation from the State party, the Committee found a multiple violation of Article 7.

The Committee took note of the anguish and distress caused to the authors and their family by the disappearance of Adel, Tarek and Mohamed and by the continued uncertainty concerning their fate. The Committee found that this amounted to a violation of Article 7, in regard to the authors.

The Committee further noted the authors claims that Adel, Tarek and Mohamed were arrested by State officials without explanation. The three brothers were not informed of the criminal charges against them, were not brought before a judge, and no official information was given to the authors regarding their whereabouts or fate. In the absence of any satisfactory explanation from the State party, the Committee found a violation of Article 9.

The Committee reiterated that persons deprived of their liberty were not to be subjected to any hardship or constraint other than that resulting from the deprivation of liberty and that they were to be treated with humanity and respect for their dignity. In view of the brother’s incommunicado detention and in the absence of information from the State party, the Committee found a violation of Article 10 paragraph 1.

The Committee reiterated its jurisprudence that the intentional removal of a person from the protection of the law for a prolonged period of time could constitute a refusal to recognize him or her 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, had been systematically impeded. In the present case, the Committee noted that the State party authorities had given the family no information on the fate or whereabouts of the brothers since their arrest, despite numerous requests for information. The Committee therefore found a violation of Article 16. In light of this, the Committee did not consider the claims under Article 23 paragraph 1.

In the present case, the family repeatedly alerted the competent authorities to the disappearance of the brothers, but all their efforts proved futile and the State party never conducted an investigation. Furthermore, Ordinance No. 06-01 deprived the brothers and their family of access to an effective remedy. In light of this, the Committee found a violation of Article 2 paragraph 3, read in conjunction with Articles 6 paragraph 1, 7, 9, 10 paragraph 1, and 16, with regard to Adel, Tarek and Mohamed, and of Article 2 paragraph 3, read in conjunction with Article 7, with regard to the authors.

The Committee noted the that at the time of their arrest and disappearance, Tarek and Mohamed were aged 16 and 15, respectively. The Committee recalled its General Comment No. 17 - Rights of the child, (Article 24). In the present case, the State party took no account of the fact that the two brothers were children, in order to give them special protection. The Committee therefore considered that the State party violated Article 24 paragraph 1, in respect of Tarek and Mohamed. In light of this, the Committee did not consider the authors claims under Article 10 paragraph 2 (b).

The State party was obligated to provide an effective remedy, including by: (a) conducting a thorough and effective investigation into the disappearances and providing their family with detailed information about the results of its investigation; (b) releasing the brothers immediately if they were still being held incommunicado; (c) if they were dead, handing over their remains to their family; (d) prosecuting, trying and punishing those responsible for the violations committed; and (e) providing adequate compensation to the authors, and to the brother if they were alive, for the violations suffered. The State party was also under an obligation to prevent similar violations in the future.

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