COMMITTEE AGAINST TORTUREFortieth session28 April-16 May 2008
Written replies of the Government of ALGERIA tothe list of issues (CAT/C/DZA/Q/3) to be consideredduring the examination of the THIRD periodicreport of ALGERIA (CAT/C/DZA/3)
[26 March 2008]
I. ARTICLES 2 AND 4 OF THE CONVENTION
A. Question 1 (CAT/C/DZA/Q/3, para. 1)
1.Under current legislation, all forms of detention are subject to judicial supervision.
2.The state of emergency decree does not derogate from this rule, except insofar as the authority (Wali) may remand any person whose activity poses a threat to public order, public security or the proper functioning of public services to a secure detention centre.
3.Since 1995 all secure detention centres have been closed down for good and since then no one has been remanded on those grounds.
4.Contrary to allegations, there is no clause in the decree instituting a state of emergency under which the judiciary may be “suspended”.
B. Question 2 (CAT/C/DZA/Q/3, para. 2)
5.The state of emergency was declared in accordance with the Algerian Constitution and the provisions of the International Covenant on Civil and Political Rights. The Secretary-General of the United Nations was duly informed at the time.
6.The state of emergency will be lifted as soon as the causes that gave rise to its proclamation have ceased. The State, which is responsible for the security of persons and property and for ensuring the proper functioning of public services and institutions, takes whatever steps are necessary to ensure public order and security and continues steadfastly to prosecute and punish terrorist crime.
7.The state of emergency does not affect the enjoyment of individual, collective, association or political liberties. It has been made more flexible and all the measures taken to enforce it have gradually been lifted.
C. Question 3 (CAT/C/DZA/Q/3, para. 3)
8.No provision of the decree establishing the state of emergency has been incorporated into the legislation on the status of the judiciary.
9.The purpose of the 10-year period before judges become irremovable is to allow the Judicial Service Commission, which is the body in charge of supervising careers in the judiciary, enough time to ensure a fair geographical distribution of appointments and the continuity of public services in the southern parts of the country.
10.In the last 10 years, 23 judges have been removed before completing 10 years of service, for the following reasons:
7 for relinquishing their post
6 for serious failure to respect the duty of discretion
6 for serious negligence in the accomplishment of their duty
4 for serious professional misconduct
D. Question 4 (CAT/C/DZA/Q/3, para. 4)
11.Under the implementing regulations of the presidential decree instituting a state of emergency, the Minister of the Interior may at any time and whenever necessary requisition units of the national people’s army for the maintenance of public order and public security.
12.These units are governed by military regulations. No other groups of any kind engage in this type of operation.
E. Question 5 (CAT/C/DZA/Q/3, para. 5)
13.The recommendations of the National Commission on Judicial Reform fall into four main categories:
(a)Enhancement of human resources, especially through improved basic training for magistrates and their greater specialization;
(b)Revision of national legislation, with special emphasis on bringing it into line with Algeria’s international commitments and with international human rights standards;
(c)Reform of the prison system, especially through a substantial improvement of conditions for detainees, better reintegration facilities and training of prison staff;
(d)More effective justice, through the modernization of management organization and methods.
14.On the basis of these recommendations, the Government adopted a plan of action, the implementation of which is already well advanced.
F. Question 6 (CAT/C/DZA/Q/3, para. 6)
15.Altogether 32 persons, from all units and ranks, were prosecuted for ill-treatment, violence, and assault and battery. Penalties ranged from suspended sentences to imprisonment.
G. Question 7 (CAT/C/DZA/Q/3, para. 7)
16.On 6 February 2007 in Paris, the Algerian Government signed the International Convention for the Protection of All Persons from Enforced Disappearance. As with every international instrument, all the ministries must be consulted to decide whether to proceed to ratification.
H. Question 8 (CAT/C/DZA/Q/3, para. 8)
17.The Algerian Government wishes to inform that:
(a)Currently 18 persons convicted in first instance have lodged appeals before different levels of the court system;
(b)Algeria’s security coverage is dealt with in a government programme, which incorporates a series of measures regulating the creation and strengthening of neighbourhood infrastructures, staff training and procurement. Substantial human and financial resources are required owing to Algeria’s large surface area (more than 2 million km2), its topography and the spatial distribution of its inhabitants (concentrated in the northern strip) and installations. There are 117,242 police and security officials for a population of 35.5 million inhabitants, which means a ratio of 329 officials for every 100,000 inhabitants. The 48 wilaya security stations are run by 86,205 police officers, which means a ratio of 242 police officers for every 100,000 inhabitants;
(c)There are currently 3,337 magistrates, equivalent to 11 magistrates per 100,000 inhabitants. The number will increase by 300 each year up to a total of 4,500;
(d)Every person subject to criminal proceedings is entitled to legal aid;
(e)Free legal advice is available in the following cases:
To all minors appearing before a juvenile court or any other criminal court
To any accused person who applies to an examining magistrate or magistrate’s court for legal aid
To any appellant who applies to the criminal division of the Supreme Court in the case of sentences passed in excess of five years’ firm imprisonment
To any accused person suffering from a disability such as to jeopardize that person’s defence
To any accused person who applies for legal aid to a criminal court
(f)In criminal proceedings, the ordinance on legal aid does not distinguish between Algerian and foreign nationals.
18.Any person in any of the situations described above is entitled to legal aid.
I. Question 9 (CAT/C/DZA/Q/3, para. 9)
19.Article 45 of Ordinance No. 06-01 of 27 February 2006, concerning the implementation of the Charter for Peace and National Reconciliation, aims to draw a clear distinction between actions undertaken by law enforcement officials solely to protect persons and property and safeguard the Republic on the one hand and personal acts or offences giving rise to criminal liability which cannot be justified on the grounds of safeguarding the aforementioned legitimate interests.
20.No complaint has been lodged under article 45 of the Ordinance concerning the implementation of the Charter for Peace and National Reconciliation.
II. ARTICLE 3
A. Question 10 (CAT/C/DZA/Q/3, para. 10)
21.Neither Algerian legislation nor Algerian practice permits the expulsion, extradition or return (refoulement) of persons to other States if there are reasonable grounds for believing that any of these measures might jeopardize the safety or physical integrity of the persons concerned.
B. Question 11 (CAT/C/DZA/Q/3, para. 11)
22.In accordance with the principle of non-discrimination between nationals and foreigners, every person has the right to a fair trial and to be heard by a judge within a reasonable time. Any legally established foreigner enjoys the same benefits as an Algerian national.
23.No person having entered the country illegally or residing in the country illegally is entitled to the abovementioned measures on account of his status.
24.Persons who are legally resident may appeal to the competent judicial authority against expulsion. Such appeals have a suspensive effect.
C. Question 12 (CAT/C/DZA/Q/3, para. 12)
25.In view of the fact that the reason why foreigners have not been admitted to Algerian territory is that they do not meet the conditions laid down by Algerian law, they will be held in the international zone of the airport or port. They will be returned by the same means of transport they came with, in accordance with the regulations of the air or maritime carriers.
26.They are nevertheless humanely treated and their basic needs are catered for by the airport authority, with the assistance if necessary of the Algerian Red Crescent (including medical care, food, phone calls and clothes).
27.In the case of persons seeking admittance at land frontiers, if it appears from their travel documents and means of subsistence that they are in conformity with the conditions laid down by Algerian law, they will be allowed to enter the national territory subject to complying with existing regulations. As in all countries, persons who do not meet the terms of entry and residence will not be admitted unless they allege exceptional circumstances, which are then left to the appreciation of the authorities.
D. Question 13 (CAT/C/DZA/Q/3, para. 13)
28.No complaints have been received for ill-treatment during extradition, refoulement or expulsion procedures. The latter are conducted in consultation with the consular authorities of the countries of origin.
E. Question 14 (CAT/C/DZA/Q/3, para. 14)
29.Algeria does not recognize or practice such diplomatic assurances. It is a signatory to bilateral legal assistance agreements with other States and it abides by the terms of those agreements.
F. Question 15 (CAT/C/DZA/Q/3, para. 15)
30.Altogether 200 asylum requests have been registered. These requests have come from the Democratic Republic of the Congo, Côte d’Ivoire, Liberia, Sierra Leone, Chad, Cameroon, Iraq, Republic of Congo, Central African Republic, Guinea, Togo, Cambodia, Bangladesh, Tunisia, Libyan Arab Jamahiriya, Morocco and Syrian Arab Republic. One of the requests was accepted after due consideration.
31.One request for asylum was granted because the person might be tortured if returned to the country of origin.
32.The persons whose requests were rejected were admitted to New Zealand, Norway, Sweden and Finland.
III. ARTICLE 7 (CAT/C/DZA/Q/3, para. 16)
33.In principle Algeria does not extradite its own nationals regardless of the grounds put forward by the requesting State.
34.Under bilateral legal aid or assistance agreements, Algeria will extradite persons if requested to their countries of origin. This follows specific procedures, including the submission of the case and supporting documents to the local court for examination.
35.If there is reason to believe that the request for extradition is groundless, it may be refused.
IV. Article 10
A. Question 17 (CAT/C/DZA/Q/3, para. 17)
1. Act of 6 February 2005 on the system of penal institutions and the social reinsertion of detainees (Code de l’organisation pénitentiaire et de la réinsertion sociale des détenus)
36.All the provisions of the new Act of 6 February 2005 on the system of penal institutions and the social reinsertion of detainees are aimed at protecting detainees, preserving their dignity and taking all necessary steps to ensure their re-education and social reinsertion.
37.This law is in line with the main objectives of the reform of the Algerian justice system, which are respect for human rights and the real and effective implementation in practice of the concepts of the re-education and social reinsertion of detainees.
38.In addition, a code of ethics and professional conduct currently in preparation stipulates that: “The prison administration shall deal with all persons under sentence subject to the observance of fundamental human rights, the Universal Declaration of Human Rights, the Constitution, international agreements and current laws and regulations”, and “Any official of the prison administration who fails to fulfil the obligations laid down in this Code shall be liable to a disciplinary sanction, without prejudice to any further penalties arising under the Criminal Code.”
39.According to prison staff regulations, all prison staff have the right and the duty to follow specialized training at the beginning and during the course of their careers.
40.Such training includes the teaching of a human rights module covering the study of all the Conventions ratified by Algeria.
41.Since 2005, 4,744 officials have received ongoing training on subjects related to the treatment of detainees and their medical and psychological care.
2. Evaluation of the training
42.Training programmes are evaluated by the administration but also in the course of consultations under bilateral cooperation programmes with various partners (including the programme of support for reform of the justice system with the United Nations Development Programme (UNDP), the European Commission and Penal Reform International (PRI), and bilateral exchanges with the French School of Prison Administration).
43.These partners provide support in the form of:
The modernization of training programmes
The organization of seminars on the treatment, re-education and reinsertion of detainees
The training of staff engaged in educational and reinsertion work (including teachers, social workers, judges responsible for the execution of sentences and children’s judges)
3. Childcare training programmes
44.Several childcare training programmes have been prepared based on:
The signing of an agreement in 2005 with the United Nations Children’s Fund (UNICEF) for the training of staff responsible for the care of minors
The holding of training sessions for psychologists
The holding of four training sessions for staff dealing with minors (including judges, psychologists, social workers and prison wardens). These sessions are assisted by national and international experts
4. Training for medical personnel
45.Medical personnel are trained in the course of sessions, assisted by foreign partners, on prison medicine dealing with contagious diseases (including tuberculosis, meningitis and dermatosis) and sexually transmitted diseases.
B. Question 18 (CAT/C/DZA/Q/3, para. 18)
46.The basic training course given in university schools of medicine includes a forensic medicine module which is compulsory for all students. This training is an integral part of the course.
47.Physicians are obliged to report any physical injuries sustained by persons coming for treatment, especially caused by any form of violence (including both sexual and domestic violence). Any failure to do so exposes the physicians to administrative and disciplinary sanctions by their employers or their corporation and to prosecution for failure to report.
III. ArticleS 11 AND 16
A. Question 19 (CAT/C/DZA/Q/3, para. 19)
48.According to the law:
(a)The registration of a person from the moment of his or her arrest until he or she is brought before a judge is governed by articles 51, 51 bis and 52 of the Code of Criminal Procedure (CPP);
(b)There are no circumstances in which incommunicado detention may be ordered, and no authority may order it;
(c)According to article 51 of the Code of Criminal Procedure, the public prosecutor may, on his or her motion or at the request of a member of the detainee’s family or the latter’s counsel, appoint a physician to examine the detainee at any time during the period of police custody. There is also a legal obligation to submit the detainee to a medical examination at the end of that period;
(d)The maximum length of pretrial detention is determined by law according to the nature of the case. Pretrial detention may last for 8 days, 20 days, or four months, subject to renewal. The average length of detention before being tried for an offence varies between one and three months, except in complex cases. In criminal cases, it varies between six and eight months, except in complex cases;
(e) and (f)See subparagraph (c) above.
B. Question 20 (CAT/C/DZA/Q/3, para. 20)
1.Application of articles 51 ff. of the Code of Criminal Procedure to conditions of police custody
49.The specific measures guaranteeing in practice the application of articles 51 ff. of the Code of Criminal Procedure on conditions of police custody include the introduction of systematic inspections in police premises by public prosecutors.
50.Such inspections, which are regularly carried out, concern not only legal but also physical conditions of detention since police custody must take place in specially designed premises that respect human dignity.
51.In addition, since 2003, custodial premises are subject to regular and spot checks by representatives of the International Committee of the Red Cross (ICRC), who are allowed to visit places of detention under the terms of a special agreement.
52.Lastly it may be noted that a joint ministerial order, signed by the Ministers of Justice, Defence and the Interior, concerning the hierarchical powers of the judicial authority over the criminal investigation department, has been circulated to all criminal investigation department officers to remind them of their obligations under articles 51 ff. of the Code of Criminal Procedure.
2. Special police custody register and prison register
53.All premises used for police custody maintain a special register containing the names of all persons held in custody, the reasons for their detention, their hearings, the duration of the interrogations they have undergone, their rest periods between interrogations, the day and hour either of their release or of their appearance before a competent judge, and their signature or mention of their refusal to sign.
54.This register must be initialled and regularly checked by the local public prosecutor. It is also open for inspection at any time by ICRC personnel.
55.All prisons maintain a register of imprisonment containing the names of all persons placed in detention by court order or decision.
3.Application of article 51 of the Code of Criminal Procedureon medical examinations
56.Since the law is of general application, article 51 bis of the Code of Criminal Procedure on medical examinations must apply to all persons held in custody.
4. Duration of custody
57.Where police custody is applied, it lasts on average 24 hours.
C. Question 21 (CAT/C/DZA/Q/3, para. 21)
58.With regard to the existence of emergency or anti-terrorist legislation that may limit the guarantees granted to detainees, the Algerian Government wishes to inform that:
There is no legislation that limits the guarantees granted to detainees, in relation to the rights referred to in the Code of Criminal Procedure
The limit of 12 days specified by the Code of Criminal Procedure for acts of terrorism is a maximum period beyond which the person in police custody is considered by the law to be arbitrarily detained
The person held in custody must be brought before a judge as soon as the preliminary investigation has been completed
59.According to Algerian legislation, a terrorist act - which is an offence - is considered to be any act directed against State security, territorial integrity, and the stability and normal operation of institutions by means of an attack on the right to life or fundamental liberties of citizens or the security of public and private property.
60.For an act to be qualified as a terrorism offence the suspect must have perpetrated a definite act (such as an assassination) and the act must have been perpetrated for a specific purpose (such as an attack on the stability and normal operation of institutions).
D. Question 22 (CAT/C/DZA/Q/3, para. 22)
61.The State Prosecutor may exceptionally authorize the criminal investigation department officer to extend custody without the person concerned being brought before the prosecutor’s office (article 65 of the Code of Criminal Procedure). In that case he must give reasons for his decision.
62.This procedure, which is allowed for under the law, may be used exceptionally in cases of force majeure which prevent a person being brought before the State Prosecutor but which do not oblige the judicial authority to terminate the custody of a person suspected of very serious offences. This exception is designed to facilitate the administration of justice.
E. Question 23 (CAT/C/DZA/Q/3, para. 23)
63.The Algerian Government is pleased to inform that:
(a)For the number of complaints, convictions and sanctions for acts of torture: see the reply to question 6 (para. 15 above);
(b)The names and location of all places of detention are given in annex 1;
(c)For the maximum and average length of detention on remand: see paragraph 48 (c) above;
(d)The prison population disaggregated by offence is as follows:
Offences against property: 56 per cent
Offences against persons: 21 per cent
Other offences: 23 per cent
(e)The prison population disaggregated by sex is as follows:
97.36 per cent men
1.56 per cent women
1.07 per cent minors
(f)The prison population disaggregated by length of sentence is as follows:
Less than one year of imprisonment: 24.98 per cent
One to five years: 51.61 per cent
Over five years: 20.02 per cent
Life: 1.99 per cent
Death penalty: 0.70 per cent
(g)The numbers of deaths occurring in penal establishments is as follows:
2002: 51 deaths out of a population of 35,152 (a ratio of 0.14)
2003: 64 deaths out of a population of 38,946 (a ratio of 0.16)
2004: 70 deaths out of a population of 40,784 (a ratio of 0.17)
2005: 86 deaths out of a population of 46,410 (a ratio of 0.18)
2006: 74 deaths out of a population of 51,112 (a ratio of 0.14)
2007: 75 deaths out of a population of 57,199 (a ratio of 0.13)
64.All these deaths were subject to judicial investigation and autopsy. All the autopsies conducted reached a verdict of natural death.
F. Question 24 (CAT/C/DZA/Q/3, para. 24)
65.Acts of violence against women and children in places of detention come under the ordinary law and therefore under the relevant provisions of the Criminal Code.
1. Violence against women
66.For 2005 and 2006, the statistics of cases of violence against women giving rise to prosecutions are given in annex 2.
2. Violence against children
67.Children are protected against all forms of moral or physical violence, including acts perpetrated by their parents, guardians or custodians. In the case of an offence being committed against a child by that child’s parents, and regardless of whether the perpetrator of the offence is being prosecuted, the juvenile court may, either at the request of the public prosecutor, or on its own motion, order that the minor be placed with a trusted person, or in an establishment, or with the public child welfare department.
68.Violence perpetrated against a minor is considered an aggravating circumstance (articles 209 ff. of the Code of Criminal Procedure). If the violence has been perpetrated by the father or mother, other ascendants or persons entrusted with authority over the child or having custody thereof, such persons are liable to even more severe penalties.
3. Marital rape
69.There are no special provisions under the criminal law that apply to the perpetrators of violence against women. A programme of action is being launched, however, with the United Nations Development Fund for Women (UNIFEM) to look into the matter.
70.With regard to “marital rape”, it may be noted that the Algerian Criminal Code does not contain any definition of rape. According to case law and jurisprudence, however, any act of sexual penetration perpetrated with physical or moral violence against a woman constitutes the offence of rape. This jurisprudential definition does not exclude the case where sexual relations are imposed on a woman by her spouse.
G. Question 25 (CAT/C/DZA/Q/3, para. 25)
71.The activity of trafficking is unknown in Algerian society. Having fought for its freedom against the colonial powers, Algeria cannot accept or tolerate such an expression of slavery on its territory.
IV. ArticleS 12 AND 13
A. Questions 26 and 27 (CAT/C/DZA/Q/3, paras. 26 and 27)
72.See reply to question 6 (para. 15).
B. Question 28 (CAT/C/DZA/Q/3, para. 28)
73.Private prosecution is a rapid procedure, provided for in article 337 of the Code of Criminal Procedure, which allows a victim to initiate court proceedings against the accused in five types of offence (family desertion, non‑representation of a child, unlawful entry to the home, libel and the issue of uncovered cheques).
74.Since torture is an extremely serious offence (aggravated offence or crime), it cannot give rise to a private prosecution procedure.
C. Question 29 (CAT/C/DZA/Q/3, para. 29)
75.The Wali and the regional council are mediation bodies that were operating at the beginning of 1992 under the terms of an order by the Minister of the Interior to allow the release of persons held in temporary administrative detention.
76.It may be recalled that security camps ceased to exist after November 1995.
77.Since 1999, under the terms of an agreement with the Ministry of Justice, the ICRC has visited 76 prisons and has conducted confidential interviews with over 66,000 detainees.
78.The recommendations submitted by the ICRC to the Algerian authorities are taken into account and implemented under the plan of action to humanize prisons launched by the Government.
D. Question 30 (CAT/C/DZA/Q/3, para. 30)
79.Places of detention are visited regularly by the judicial authority within the relevant jurisdiction. The numbers of visits have been as follows:
2005: 1,021 visits
2006: 5,399 visits
2007: 7,589 visits.
80.Apart from the regular ICRC visits, 56 authorizations were issued to the press in 2007 for visits to prisons.
81.The prison system remains open to scrutiny by civil society since regular visits are made by the National Advisory Commission for the Promotion and Protection of Human Rights, the Muslim Scouts and other associations such as the anti-illiteracy Ouled El Houma or Iqra.
82.Visits have also been paid in recent years to Algerian prisons by ambassadors accredited in Algeria, UNDP and UNICEF experts, the prison authorities of France, Italy and other countries, as well as foreign NGOs.
V. Article 14
A. Question 31 (CAT/C/DZA/Q/3, para. 31)
83.Any person whose physical integrity has been violated may lodge a complaint and may claim fair compensation for the injury suffered.
84.Notwithstanding the prosecutor’s submissions in related criminal proceedings, the victim or counsel may lodge a claim before the court for compensation on the basis of the moral and material injury suffered. The court may appoint an expert to evaluate the damage caused.
B. Question 32 (CAT/C/DZA/Q/3, para. 32)
85.There are no specific physical, psychological and social rehabilitation services available for torture. One wing of hospitals is usually devoted to dealing with victims of violence such as terrorist attacks, rape or psychological trauma.
VI. Article 15
A. Question 33 (CAT/C/DZA/Q/3, para. 33)
86.It should be noted that all statements and reports drawn up by the criminal investigation department concerning crimes or offences merely serve as sources of information and with regard to Algerian law do not constitute evidence (article 215 of the Code of Criminal Procedure).
87.This means that any confession, even made spontaneously by a person before a criminal investigation police officer, may be retracted before the Public Prosecutor or investigating judge, who moreover wields extensive investigatory powers which allow an investigation to be restarted from the beginning.
88.The court, on the other hand, can pass judgement on the merits only on the basis of evidence put forward during the adversarial court hearing.
89.Even a confession made before a judge does not constitute irrefutable evidence, since it is left to the judge’s appreciation (article 213 of the Code of Criminal Procedure).
VII. OTHER ArticleS
A. Question 34 (CAT/C/DZA/Q/3, para. 34)
90.Yes, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, like all other human rights treaties, can be directly invoked before a domestic court. There is no impediment in this respect.
B. Question 35 (CAT/C/DZA/Q/3, para. 35)
91.All international human rights treaties and agreements must be submitted to the Government for deliberation and must be formally adopted by the Council of Ministers.
92.All covenants, treaties and conventions are published in the Official Journal of the Republic. They may be consulted on the site of the General Secretariat of the Government and other institutions.
93.In addition, seminars, colloquies and other training workshops provide opportunities for obtaining information concerning the mechanisms for the protection of human rights and related rules.
C. Question 36 (CAT/C/DZA/Q/3, para. 36)
94.According to Algerian legislation, a terrorist act - which is legally an offence - is considered to be any act directed against State security, territorial integrity, and the stability and normal operation of institutions by means of an attack on the right to life or fundamental liberties of citizens or the security of public and private property. Thus for an act to be qualified as a terrorism offence the suspect must have perpetrated a definite act and that act must have been perpetrated for a specific purpose, such as an attack on the right to life or fundamental liberties of citizens.
95.Hence the purpose pursued and means used by the perpetrator in accomplishing the act are essential grounds for the offence to be constituted.
96.The Algerian Government has taken a number of measures to prevent and combat the threat of terrorism. Free call numbers are made available to the public; spot broadcasts are made to alert the public to the dangers of this form of criminality, and mosques are expected to propagate and preach messages of tolerance and respect for others in accordance with the spirit of the Holy Koran. This policy is backed up with further social and economic measures, especially for the benefit of young people.
D. Question 37 (CAT/C/DZA/Q/3, para. 37)
97.As in the case of all the Conventions signed by Algeria, consultations are being conducted with a view to advising the public authorities on the desirability of ratifying the Optional Protocol to the Convention against Torture.