Algeria condemned once again by the UN for the crime of enforced disappearance
During its 135th session, which took place in Geneva from 27 June to 27 July 2022, the United Nations Human Rights Committee concluded to the responsibility of the Algerian State for the enforced disappearance of Boubekeur FERGANI in the 1990s. The Committee ruled on the case following a communication from Alkarama dated 26 May 2016.
The victim is one of thousands of Algerians abducted between 1992-1998 by the police and military in Algeria and whose families have no news to this day. Despite the many recommendations made by the Committee regarding these disappearances, the authorities still refuse to shed light on the circumstances of these crimes and to bring their perpetrators to justice, taking advantage of the provisions of the Charter for Peace and National Reconciliation, which establishes a blanket impunity for their perpetrators.
Disappearance of Boubekeur Fergani
History professor and father of five, Boubekeur Fergani was abducted from his home in Constantine (northeast of Algeria) on the night of 22 June 1995 by a dozen agents in civilian and military clothing accompanied by a hooded informant.
Since that night, his family has never seen him again.
On the same night, a large-scale operation in the city launched by the army targeted many real or perceived militants and sympathisers of the Islamic Salvation Front (FIS). Some of them had been summarily executed by the military so that the next morning, many corpses were thrown in the streets of Constantine and its surroundings.
The victim's wife, Mrs. Boutarsa, who searched in vain for him among the corpses, kept asking for the truth on the fate of her husband. A few days after his arrest, she went to the barracks of the "Department of Intelligence and Security" (DRS), police stations and courts of Constantine hoping to obtain information, in vain. Facing the silence of the authorities, Mrs. Boutarsa formally filed a complaint for kidnapping and sequestration to the Prosecutor, but no investigation was ever opened by the courts as in the thousands of cases of enforced disappearance in the country.
It was only two years later that Mrs. Boutarsa was summoned by the national gendarmerie of the Mansourah brigade to be notified that "research concerning the disappearance of her husband had not been succeeded”.
Facing the impossibility of obtaining the truth about the fate of her husband, Mrs. Boutarsa mandated Alkarama to refer the matter to the United Nations Human Rights Committee, which oversees the application of the International Covenant on Civil and Political Rights (ICCPR) ratified by Algeria in 1989.
The impossibility to invoke the Charter for Reconciliation
In its decision rendered during the 135th session, the Committee recalled that the State party cannot invoke the Charter for Peace and National Reconciliation given its incompatibility with Covenant. The Charter establishes a generalised impunity for members of the police, the army and all state-affiliated forces who committed serious crimes. The UN Committee had already stressed the inapplicability of the Charter to "persons who invoke the provisions of the Covenant or who have submitted or may submit communications to the Committee", i.e. to all Algerians who whish to refer their case to the Committee.
An arbitrary deprivation of liberty
Fergani was arrested without a warrant and without being charged. He was never brought before a judicial authority so that he could challenge the legality of his detention as provided for in the Covenant to which Algeria is a party. For these reasons, the UN experts qualified the deprivation of liberty of the victim as arbitrary.
Violation of the Covenant with regard to Algeria’s duty to protection
Algeria failed in its obligation to protect Fergani's life, the Committee concluded, as the very definition of enforced disappearance involves “a unique and integrated series of acts that represents a continuing violation of various rights recognized in that treaty” including the right to life. In the present case, by denying the victim's detention following his arrest and by failing to provide information on his fate, the State party failed, in the opinion of the Committee's experts, in its duty to protect his right to life.
The State party responsible for incommunicado detention
The Committee also noted that the authorities refusal to acknowledge the victim's deprivation of liberty and to disclose his place of detention, even though former co-detainees of Fergani had claimed to have been held incommunicado with him at the Regional Territorial Investigation Center (CTRI) in Constantine, constitutes a form of torture.
In addition, the UN body stated that “the intentional removal of a person from the protection of the law constitutes a refusal to recognize him or her as a person before the law, particularly if the efforts of his or her relatives to obtain access to potentially effective remedies have been systematically impeded.”
The Algerian authorities were reminded of their obligation to guarantee to all persons "accessible, effective and enforceable remedies for asserting the rights recognized in the Covenant", in particular through the establishment of "appropriate judicial and administrative mechanisms for addressing claims of violations of the rights guaranteed under the Covenant”.
The Committee calls on Algeria to investigate the disappearance of Fergani
Lastly, the Committee urged the Algerian authorities to “conduct a prompt and thorough investigation that is effective, impartial, independent and transparent into the disappearance of Boubekeur Fergani and to provide the author with detailed information about the results of its investigation”. The State Party was also called upon to release him if he is still being held incommunicado, to return his remains to his family in the event of his death, and to prosecute those responsible for the violations committed while providing the family with adequate reparation.
Algeria must publish the decision and provide information to the Committee
Algeria has 180 days to inform the Committee of the measures it has taken to implement the decision and to publish it.
In the framework of the follow-up procedure instituted by the UN body in relation to the individual complaint, Alkarama will, during its next annual program, give particular importance to the implementation of all the decisions already rendered by the Human Rights Committee so that the dignity and rights of the victims and their relatives are finally restored.
As highlighted by Alkarama in its report on the human rights situation in Algeria in view of its next periodic review (UPR) by the Human Rights Council scheduled for 11 November 2022, the Algerian authorities regularly manifest a lack of good faith in collaborating with the treaty bodies and special procedures of the United Nations, particularly concerning the implementation of final recommendations and individual decisions.
This lack of cooperation was noted in the compliance report of the States parties to the human rights treaty bodies dated 31 December 2019, in which Algeria's cooperation with the treaty bodies is graded the lowest among UN member states.