HUMAN RIGHTS COMMITTEE
CONSIDERS REPORT OF
24 October 2007
The Human Rights Committee has considered the third periodic report of Algeria on how that State Party is implementing the provisions of the International Covenant on Civil and Political Rights.
Idriss Jaza´ry, Permanent Representative of Algeria to the United Nations Office at Geneva introducing the report, said that it was important to remember the historical context out of which human rights were born in Algeria. Resistance to colonization and the supreme sacrifices made to attain independence were in the memories of everyone when talking about human rights. It was in the name of the same humanistic values that very hard battles had been fought against terrorism. Extremism had attacked all norms and values in Algeria, especially the right to life. For over 10 years, Algeria had battled alone against that phenomenon, while others remained sceptical or uncomprehending. Sadly, it had taken the tragic attacks of 11 September for the international community to react.
Rafael Rivas Posada, Chairperson of the Committee, in preliminary concluding observations, said there were still many clear situations in which the equality of women was being impeded, like the need of male guardians during marriages, even if this role had been minimized in the past years. Also of concern was the possibility of penal sanctions for acts that ran counter to the right to freedom of expression. When public authorities had to intervene and certain acts were criminalized, it presented a serious threat to the freedom of expression. An important and satisfactory step forward had been limitations on crimes that carried the death penalty, but the Committee still wished to see its total abolition.
Committee Experts raised question and asked for further information on subjects pertaining to, among other things, the apparent impunity granted to those responsible for killings and disappearances in the name of national reconciliation. Moreover, those seeking to understand what had happened to their disappeared relatives could feel threatened by certain provisions made in the law against those who criticized the State. How was it possible to know if someone was not being held in a secret prison? One could not rely on the presumption of administrative regularity.
The Committee reviewed the report of Algeria over three meetings and it will issue its formal recommendations on the report towards the end of the session, which will conclude on 2 November 2007.
Algeria is one of the 160 States parties to the International Covenant on Civil and Political Rights and is obligated to submit periodic reports on implementation of the provisions of the Covenant. It is also one of the 110 signatories of the Optional Protocol to the Covenant, which provides for confidential consideration of communications from individuals who claim to be victims of violations of any rights proclaimed by the Covenant.
The Algerian delegation, which presented the report, included members of the Algerian Permanent Mission in Geneva; the Ministries of Justice, Communication, Health, National Solidarity, Foreign Affairs, and the Interior; the Gendarmerie Nationale; and the National Security Service.
When the committee next reconvenes in public at 3 p.m. on Thursday, 25 October, it is scheduled to discuss its working methods.
Report of Algeria
The third periodic report of Algeria (CCPR/C/DZA/3), says that Algeria faced many challenges upon gaining independence, related, inter alia, to the establishment of institutions and structures for a State emerging from a period of colonization, national reconstruction in all its aspects, the return of refugees, and social and psychological care for the families of victims of the war of national liberation. Since 1991, Algeria has had to confront terrorism in an atmosphere of indifference and suspicion. Efforts to combat this scourge, requiring the implementation of special measures, have always been deployed within the framework of the law and respect for human dignity. In order to deal with this exceptional situation, in February 1992 the Algerian authorities decided to declare a state of emergency. Although the state of emergency did impose some restrictions on the exercise of civil rights and liberties, it did not relieve the State of its obligations to guarantee the right to exercise the fundamental civil liberties provided for in the existing domestic constitutional order and in the international agreements ratified by Algeria.
The rights to information and freedom of the press, which are enshrined in the
Constitution, are considered by the law as an essential tool for monitoring and protecting individual and collective rights. The remarkable development of the press in Algeria has given a real boost to the protection of human rights. In addition to public service television, radio and the press agency, there are currently 43 daily newspapers, 60 weekly newspapers, 17 monthly and 6 fortnightly periodicals. Their number and diversity mean that all political opinions and schools of thought in Algerian society are reflected in the media. Contrary to certain media reports, no Algerian journalist has been convicted for a crime of opinion. The only cases on record have involved trials for defamation or dissemination of false information.
Presentation of Report
IDRISS JAZA¤RY, Permanent Representative of Algeria to the United Nations Office at Geneva, introducing the report, began by observing that Algeria was a signatory of seven human rights treaties. It had also continued, since the last review by the Human Rights Committee, to ensure that its legislation was up to international standards and that the full enjoyment of rights was provided to its citizens.
The current report described progress made in the area of human rights during the period from 1999 to 2007, Mr. Jaza´ry continued. It was also important to remember the historical context out of which those rights had come. Resistance to colonization and the supreme sacrifices made to attain independence were in the memories of everyone when talking about human rights. It was in the name of the same humanistic values that very hard battles had been carried out against terrorism.
Mr. Jaza´ry stressed that Algeria adhered to the universality of human rights without reserve, and was determined to implement a real democracy. However, extremism had attacked all norms and values, especially the right to life. For over 10 years, Algeria had battled alone against that phenomenon, while others remained sceptical or uncomprehending. Algeria had revealed its strength in its determination and in the rightness of that battle. Sadly, it had taken the tragic attacks of 11 September for the international community to react.
As early as 1999, Algeria had committed itself to return to lasting peace and stability, Mr. Jaza´ry observed. An ambitious programme of economic growth had underpinned that objective. Those major initiatives to put an end to violence and to restore peace had been one of the fundamental engagements of Algeria's President. Those initiatives were reflections of the values of clemency and tolerance that were among the hallmarks of the Algerian people. In a referendum, the Algerian people had made those values clear by granting clemency to those who had gone astray and committed bloody acts.
The policy of national reconciliation was bearing fruit, Mr. Jaza´ry said. The legislative code had been updated; Algeria had abolished the death penalty for certain crimes; two laws strengthening the independence of the judiciary had been enacted; and legal procedures had been simplified. Algeria also now had an independent human rights body, composed mainly of representatives of civil society.
It was important to note that considerable progress had been made towards a reappropriation of the Algerian identity. In that connection, the President had also taken the initiative to declare the amazigh language as a national language, Mr. Jaza´ry added.
The Algerian Government was aware of the fact that the protection of human rights came first and was part of a humanistic approach to society. It would continuously seek to make Algeria a magnet and a shining beacon of freedom in the region. There was still a long road ahead, but Algeria was committed to this task, with the help of UN mechanisms, and in all transparency.
Response by the Delegation to Written Questions Submitted in Advance
Legal Framework for Implementation of the Covenant
Concerning the supremacy of international treaties, the delegation said that the Constitutional Council had underlined the supremacy of international treaties ratified by Algeria and that those had precedence over national law.
On the National Advisory Commission for the Promotion and Protection of Human Rights, the delegation noted that it included representatives of civil society. The Commission prepared an annual report at the end of each year, and the President then issued recommendations based on the report.
Concerning the question of how many people had benefited from a pardon or amnesty under the Ordinance enacting the Charter for Peace and National Reconciliation, the delegation estimated that more than 7,000 persons had benefited. The delegation noted that such amnesties or pardons did not extend to people involved in terrorist acts or rape.
In terms of measures taken to follow-up the Committee's Views on individual communications, Algeria had always responded every time it had received communications from the Committee, and had always made itself available. Concerning certain allegations made in communications, the Algerian justice system did provide for the review of such complaints, but sometimes they were completely distorted. Also there were no cases of people being prosecuted for having criticized the national reconciliation process, the delegation affirmed.
Non-discrimination and Equal Rights of Men and Women
Concerning steps to enhance participation of women in political life and to promote their appointment to official positions, the delegation noted that no provisions prevented women from participating in decision-making roles and such participation was vigorously encouraged.
Turning to measures taken to protect women from violence, including domestic violence, there were no specific criminal provisions for perpetrators of such crimes, the delegation said. Marital rape was not defined in the Criminal Code, but the courts considered every sexual act committed with violence as being a rape, and that did not exclude sexual acts imposed by a man on his wife. A national strategy and plan of action to combat all forms of violence and discrimination against women had also been put in place.
On the subject of discrimination against women, greater equality was being promoted in Algeria, despite some reluctance in certain conservative sectors. Concerning male guardians that accompanied women during the marriage ceremony, that was a mere formality and had no relationship to the willingness of the women to marry. It was the woman who selected the male guardian. A woman could marry a non-Muslim man only if he was ready to convert to Islam. There was a lot of resistance by the conservative sector of society to mixed marriages, and it was not easy to change that. There was an ongoing debate in Algeria as to the role of the State in modernizing society and how far it could go.
As for divorce and child custody issues, the delegation said that the mother did not automatically lose custody of her children upon remarriage after a divorce. In such situations only male children over the age of 10 could be transferred to the father's custody, and that had happened in only a few cases. A woman could separate from her husband without difficulties, but the man could ask for an indemnity, based on her bride price. There was a complete equality between men and women with regard to the right to divorce.
Turning to the issue of the state of emergency, the delegation underscored that a state of emergency had been declared in accordance with the provisions set out in the Algerian Constitution and the then UN Secretary-General had been informed of that action at the time. Indeed, the state of emergency had a negligible effect on people’s full enjoyment of human rights. The state of emergency would be lifted when the conditions that had led to it were at an end.
On the definition of terrorist acts, the delegation said that Algerian legislation criminalized any actions that were made against the stability and the normal functioning of institutions of the State by means that attacked or threatened people. Anything directed against the State and its integrity as well as attacks against the right to life in the form of attacks or threats was considered as terrorism. It had to be a premeditated act with a specific goal.
On the measures adopted by the authorities to reduce the threat of terrorist activities, the delegation enumerated a number of activities including television and press campaigns to raise awareness and warn the public; the condemnation of terrorist acts in mosques; the enhancement of security in public areas; and the setting up of a special terrorism hotline.
Right to Life, Prohibition of Torture and Treatment of Prisoners
Regarding the death penalty, the delegation noted that, while it had not been abolished as of yet, a moratorium on the execution of the death penalty had been declared in 1993, and no death penalty had been carried out since that time.
As regards of complaints lodged against state officials, the procedures involved several measures, depending of the gravity of the facts. They were either administrative, disciplinary or judiciary measures.
Right to Liberty and Security and Right to A Fair Trial
Concerning cases of forced disappearances, that was a painful problem afflicting Algerian society and a commission had been set up on the matter. It had been given a mandate for an 18-month period during which it had also communicating with the families of victims.
Concerning illegal places of detention, the delegation said that, as far as they were aware, there were no such places in Algeria. All places of detentions were listed and well known and were under the authority of the judiciary. Detention facilities that fell under the Military Code were also known and were supervised by the military justice system. An agreement had been signed between Algeria and the International Committee of the Red Cross, allowing ICRC representatives to visit prisons, and the Government had accepted any unannounced visits being made by ICRC delegates.
Regarding the fact that persons suspected of breaching State security could be held in preventive detention without judicial supervision for up to 12 days, the delegation explained that that was possible in the case of terrorism as revelations given by suspects in such cases went beyond simple judicial examinations. Security considerations had to be taken into account.
Oral Questions by Committee Experts
Committee Experts then asked various questions and made comments on a number of topics, including whether the Covenant could be invoked directly in national courts; why the report of the National Advisory Commission on Human Rights was not made public; and whether the Advisory Commission had made any recommendations concerning education. An Expert observed that the male guardian system in marriage, even though the woman chose the guardian, still showed that there was not equality between men and women. Concerning polygamy, what was preventing the Government from taking the final steps to prohibit that practice?
On justice issues, what were the rules of engagement regarding the use of deadly force by the military police; had policemen involved in shootings received training or been retrained; and was Algeria considering the establishment of a central national jail registry? Experts regretted that they had not received information from the Government in follow-up to the Views of the Committee. Those Views were authoritative statements on legal issues, and States parties to the Covenant were bound to at least consider them. An Expert was concerned that the provision for 12 days of pre-trial detention was too long, and apparently that period was not always respected in practice. Access by the ICRC was also not the best way to prove Algeria's good faith in this matter, as ICRC reports remained confidential.
An Expert commented that thousands of killings and disappearances could not have happened in an unsystematic way. Yet the persons responsible appeared to have been given immunity in the name of national reconciliation. Moreover, those seeking to understand what had happened to their disappeared relatives might feel threatened by certain legal provisions against those who criticized the State.
Response by Delegation to Oral Questions
The delegation, in response to the questions raised, said that, in the area of human rights, Algeria had an ambitious approach, aspiring to be an example for freedom in the region. However, they recognized that not everything was perfect and that they needed the support of the Committee’s Experts and that of the civil society.
With reference to terrorism, theoretically, security and freedom should be promoted together. In practice, however, one could be faced with competing rights, and that created difficult situations. The situation Algeria had faced was not like the situations of State violence aimed at repressing ethnic groups in countries like South Africa or Chile. In the case of Algeria, it was not a regular army that had to be fought. Terrorism had been a new trend that Algeria had been forced to battle alone. Human rights values had been used to justify terrorist acts. Back then, opinion leaders and non-governmental organizations had been attentive to the calls of those terrorist groups, as if those groups were the ones defending human rights. It took 11 September for people to finally wake up and see things in the same light as the Algerian Government.
On the use of force and collective massacres, the delegation said that it was the terrorist groups that had been responsible for such massacres. Back then, nobody had been prepared to answer the kind of warfare the terrorist were waging. Algeria had had to learn from experience, and the rules of engagement had had to be adapted in consequence.
Concerning the text of the National Reconciliation Charter, it did not mention impunity. No impunity had been granted, the delegation stressed. When the Charter had been adopted, some years had gone by since the terrorist events that had taken place, and the perpetrators of the attacks had to be found. All those who had been found liable of having committed crimes had been condemned. No impunity had been granted where there had been complaints against security force personnel.
Concerning the non-publication of the human rights Commission’s report, the delegation observed that it was not the only report that had not been published. Many advisory bodies produced reports; those had no juridical value and were not meant for public dissemination. When the Government received such reports it took certain concrete actions. The Charter for Peace and National Reconciliation was an example of what came out of that process.
Concerning the 12-day preventive detentions, that measure was a very important factor in helping to save lives, the delegation underscored. It could be a bit too much, but it was the best they could do for the moment.
Concerning sharia, it was true that the law had to encourage people to evolve, but one had to understand that sometimes it was impossible to move swiftly and things could not always been forced on people. Other Arab countries were collapsing nowadays, but Algeria was now the second most powerful economy in Africa thanks to not forcing changes on its people, the delegation commented.
Concerning difficulties encountered by relatives of the disappeared in obtaining a death certificate, there were deadlines for the courts to respond to such requests and for a decisions to be taken in such cases. There was a limit, and such cases could not continue longer than 6 months in the courts.
On human rights education for the security forces, the delegation noted that police forces had to implement international law. All security forces attached a lot of importance to training in human rights in their curricula.
Further Oral Questions by Committee Experts
In further comments and questions, an Expert noted that the 12-day period for preliminary detentions was perhaps shorter than the United Kingdom’s 30-day period, but people detained in the United Kingdom were not held incommunicado for 30 days.
With reference to Islamophobia, an Expert said it was a clear fact that Islam was under attack. That attack came also from extreme forms of Islam itself and States had to move society forward, as Algeria had done by acceding to different international treaties. Also, was it true that a marriage by an Algerian woman with a non-Islamic man outside Algeria would be registered in Algeria?
Another Expert noted that there had been so many persons that had gone missing in the Algeria that the fear was that not all of them had been killed by guerillas and some might still be alive in prisons in the country.
Response by Delegation
Responding to these questions and others, the delegation, commenting on reservations made to treaties by Algeria, said that it was Algeria's legitimate right to do so whenever there were contradictions between such treaties and sharia law. It did not mean that the treaty did not have precedence over domestic legislation, but it was a way to acknowledge that there were certain differences inside their society with regard to provisions of the Covenant.
The delegation also underscored that the Committee should help to improve the current situation and not always revert to the same past issues. In particular, one should not equate the numbers of disappeared persons with so many violations perpetrated by the armed forces. The situation was more complicated than that. The Government had tried by every means to discover what had happened to those people, but they were now stuck and had not found any explanation.
Further Responses by Delegation to Written Questions
Freedom of Movement
On the current number and situation of persons internally displaced following the events of 1997, the delegation said that once security had been restored and after measures had been taken to prevent any repeat of such event, all the people had returned to their homes.
Right to A Fair Trial
Concerning the rights of detainees and access to a lawyer, the delegation explained that detainees were all informed of their right to remain silent. Investigators did not interview them on preliminary remand and only took their statements. The judge had the obligation to inform the accused of their right to a lawyer and to remain silent.
Freedom of Religion
Explaining why activities leading to conversion from Islam to another religion had become criminal offences, the delegation said that Islam was the official religion of the State. It was practised by more than 99 per cent of the population. Having noted the exploitation of certain difficulties persons were facing to spread doubt in their faith and to seduce them into other religions, measures such as this one had been implemented to invite anyone preaching a religion to respect the law.
Freedom of Opinion and Expression and Freedom of Assembly
On the question of journalists sentenced to fines and prison terms, the delegation noted that the Algerian law applied to everyone, including journalists. Many cases involving journalists had nothing to do with their profession, and the number of such cases had dropped in recent years. Presidential pardons had also been granted in some instances. At present there were no journalists in prison for a press offence. A press offence was adjudged when a violation of the code of ethics was found. It should be underscored that private persons had filed 98 per cent of the cases against journalists. Moreover, no one had been prosecuted for expressing their opinion on the Charter of National Reconciliation since its adoption.
Freedom of Association
On the limiting of political activities, the delegation noted that the exercise of political activity was prohibited for anyone advocating violence or that had been the subject of criminal proceedings.
Dissemination of Information Relating to the Covenant
Concerning training given to State employees on the Covenant and its Optional Protocol, judges were given seminars on the right to a fair trial, due process, protection of the rights of detainees and the obligations imposed by international treaties to which Algeria had acceded.
Turning to the question of the publicizing the Covenant and the process of drafting the report, very broad publicity had been given after the last report was reviewed and the population was very much aware of human rights. Regarding the elaboration of current reports, it had been a very open process and civil society had contributed to it, the delegation said.
Further Oral Questions Posed by Experts
Committee Experts then asked further questions, including clarifications about what was exactly happening during a “garde Ó vue” or pre-trial incommunicado detention, in particular what rights were granted to detainees at that time and how those rights were communicated to them? On the right to choose one's religion, an Expert noted that the Covenant allowed such freedom, but it was clear that the sharia law did not. What had the delegation meant by the “excesses” that had brought the Government to prohibit the enjoyment of this right?
Concerning freedom of expression, an Expert commented that the penalties that could be imposed on journalists in Algeria were quite impressive. The mere fact that 200 journalists had been acquitted in courts spoke volumes for the environment in which such journalists were working. An Expert was concerned by the statement made by an official of the Algerian Human Rights Commission official, who had said that the Charter of Reconciliation forbade discussion of the issue of those who had disappeared.
An Expert, commenting on the criminalization of those who sought to convert others to a religion other than Islam, asked how that act was defined, and wondered if it included the decision of an individual to seek another faith. That would appear to be in contradiction to right to freedom of religion as set out in the Covenant. Other issues of concern raised by Experts included discrimination against homosexuals in the country, and information about asylum laws in the country. The Committee had received information that undocumented sub-Saharan asylum-seekers were routinely deported to the borders and dumped there without food supplies.
Response by Delegation
Responding to those questions and others, the delegation said, with regard to the subject of displaced persons, that it was not a question of a few families as had been implied, but of over a million persons who had moved during a period that covered more than five years. Many of them had flooded into the bigger cities of the country like an avalanche. Those people had moved out of fear of terrorism. When problems started in Morocco and the border was closed, a lot of people had been blocked in the border zone on the Algerian side. They had been put into camps in order to secure the border zones. With the help of concerned embassies and UNHCR, the Government tried to determine which ones were political refugees and which ones were illegal. Illegal ones had been repatriated. Refugees were dealt with by UNHCHR, but they had had problems finding countries where the refugees could be resettled. Thus, the process had been a lengthy one and was still ongoing.
Concerning freedom of religion, there was no ban against conversion. Nothing prevented someone from changing his or her religion. But there had been problems with terrorist, extremist and fundamentalist movements. It was a problem of public order. The operation to address the situation had not sought to limit freedom of religion, but rather had sought to prevent terrorist acts.
On the issue of freedom of speech and the amnesty given to 200 journalists, it was true that there had been a problem if 200 journalists had been pursued in justice. A few of them had been put in prison, but their detentions had never gone over six months. No one could be pleased with that fact; journalists were an important counterweight in any society. But they had to respect certain laws and ethics in carrying out their work. Apparently what had happened was that certain untrained persons had not respected their ethical obligations as journalists, as private individuals had brought 87 per cent of the cases before the court.
Concerning the National Reconciliation Charter, no one had had problems because they had criticized it. The Charter had been chosen by the Algerian people in a referendum. They considered it now as their right, and had asked the Government to protect it.
With regard to informing detainees of their rights, all persons in custody were informed of their rights. They had the right to remain silent; the right to a lawyer's assistance while in custody; the right to communicate with their families; and the right to elect a doctor of their choice to examine them. Posters in every police detention centre set out those rights. That information had to be relayed to detainees in a language they understood. The right to remain silent was not recognized by law, but an arrested person was not obliged to speak.
On homosexuality, it was very rare and practically unknown in Algeria. The delegation said that there was no gay movement in Algeria as there was in other countries. That was linked to the historical and cultural background of the State.
Further Questions by Experts
Expert asked further questions and made comments, including what rule the Research and Security Directorate was bound by; and whether military justice handled offences happening inside the military.
An Expert underscored that the question of the state of emergency remained an important matter for the Committee. The reactions to extremism might also be extreme at times, but one had to look at what was legitimate according to the Covenant. It should not be allowed to create a situation where the enjoyment of basic rights became the exception rather than the rule
Response by Delegation
On the issue of the state of emergency, the delegation answered that in their report they had recapitulated everything that had happened. It had been proclaimed on a constitutional basis. Several of the administrative elements put in place for the state of emergency did not exist anymore. The Terrorist Act, and operations of the judiciary police under common law had been lifted, and only specific police operations remained. Moreover, during this phase, Algeria did have several presidential and parliamentary elections and thus, the state of emergency had not blocked the democratic process.
Concerning the freedom of the press, the delegation noted that the best way to ensure the self-regulation of the press was through the means of a specific body. Such a body existed, but it had not been updated for a long time. However, it was not the role of the State, but that of the press, to do so.
On the needs of victims, it was noted that the whole State had been taken hostage and not only certain parts of the population; the tragedies had affected the whole of the population. The situation in Algeria was a very delicate one, and could not be compared to that in other countries. What Algeria needed was advice from the Committee to help it protect the victims.
Preliminary Concluding Observations
RAFAEL RIVAS POSADA, Chairperson of the Committee, in preliminary concluding observations, said that it would be interesting to have more information next time on the legal status of the Covenant in Algeria and how it could be invoked before the courts.
On discrimination against women, Experts had been concerned by certain practices that had been ascribed to traditional values, Mr. Rivas Posada said. It was the Committee's job to verify and determine which aspects of social life constituted infringements of the Covenant. There were still many clear practices and measures that impeded the equality of women, like the need of male guardians during marriages, even if that role had been minimized in recent years.
Mr. Rivas Posada was also concerned about the possibility of penal sanctions for acts that ran counter to the right to freedom of expression. When public authorities had to intervene and certain acts were criminalized, it presented a serious threat to the freedom of expression.
On freedom of assembly and the right to demonstrate, some infringements of that right still appeared to occur, Mr. Rivas Posada noted. Even for security reasons, such limitations were objective impediments to the full enjoyment of rights under the Covenant.
An important and satisfactory step forward, Mr. Rivas Posada highlighted, had been made by limiting the crimes for which the death penalty was applicable, but the Committee would still like to see it abolished.
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