Human Rights Committee
Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2580/2015 * , **
Communication submitted by:Mohammed Dafar (represented by counsel from Fondation Alkarama)
Alleged victims:The author and Fateh Dafar (son of the author)
State party:Algeria
Date of communication:25 November 2014 (initial submission)
Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 5 March 2015 (not issued in document form)
Date of adoption of Views:16 October 2020
Subject matter:Summary execution
Procedural issue:Lack of cooperation by the State party
Substantive issues:Right to an effective remedy; right to life; cruel, inhuman or degrading treatment or punishment
Articles of the Covenant:2 (3), 6 (1), 7, 9, and 10 (1)
Articles of the Optional Protocol:5 (2) (b)
1.The author of the communication is Mohammed Dafar, a national of Algeria. He claims that his son, Fateh Dafar, born on 6 February 1960 and also a national of Algeria, was summarily executed on 3 February 1995, which constitutes a violation by the State party of articles 2 (3), 6 (1), 7, 9 and 10 (1) of the Covenant. The author also claims that he and his family have been the victims of a violation of article 2 (3), read alone and in conjunction with articles 6 and 7 of the Covenant. The Covenant and the Optional Protocol to the Covenant entered into force for the State party on 12 December 1989. The author is represented by counsel from Fondation Alkarama.
The facts as submitted by author
2.1The author states that, like many cities and rural areas in Algeria, the wilaya (governorate) of Jijel has experienced systematic mass violations of human rights. Jijel is a mountainous region in the eastern part of the country. During the 1990s, thousands of people were victims of summary execution, arbitrary arrest and enforced disappearance. During the years of conflict, a climate of widespread terror prevailed in this remote region, where there was a strong military presence. This explains why, despite the large number of summary executions performed there, so few cases were reported – the fear of reprisals by the authorities prevented families from taking steps to find their missing family members.
2.2Fateh Dafar worked at the El Aouana tax office (Recette des contributions diverses d ’ El Aouana), which is attached to the department responsible for taxation in Jijel wilaya. According to testimony from his family and colleagues – confirmed by a certificate issued on 6 March 1995 by the director of taxation in Jijel wilaya – he was arrested at his workplace on 26 November 1994 by two members of the security services. He was subsequently taken to the headquarters of the El Aouana brigade of the national gendarmerie, commanded by Captain B., where he was detained for 70 days – from 26 November 1994 to 3 February 1995 – without being brought before a competent judicial authority and without his family being informed of the reasons for his arrest or his place of detention. Throughout this period of incommunicado detention, Fateh Dafar was subjected to acts of torture.
2.3On 7 December 1994, the author sent a letter to the commander of Jijel military district to express his concern at the lack of information regarding the fate of his son, and to request that the commander contact the gendarmerie to gather information. This effort proved futile.
2.4On 3 February 1995, at around 10 p.m., in retaliation for an attack committed by an armed opposition group in El Aouana, Captain B. and the gendarmes under his command brought Fateh Dafar and six other detainees from the headquarters of the local brigade to Chalate beach in El Aouana. The detainees were transported in full view of many residents of the municipality. Several people present near the beach that night witnessed the summary execution of the seven detainees by Captain B. and the gendarmes accompanying him, who abandoned the bodies on the beach.
2.5On the morning of 4 February 1995, civil defence officials and firefighters arrived on the scene to recover the remains under the supervision of gendarmes. They subsequently transported the remains to the morgue at Jijel hospital. Having been alerted by witnesses to the scene, on that same morning, several members of Fateh Dafar’s family, including the author, went to the morgue with the families of three of the other detainees to identify their children. Doctor T.A. of Jijel health district issued a death certificate for only one of the seven victims, at the request of the victim’s father. This certificate, dated 4 February 1995, attests to the violent death of the person concerned, whose skull had been “completely smashed in” and who had a bullet wound in the chest. Given that the author’s son was executed at the same time, the certificate can be applied to him by analogy.
2.6The families of the four identified victims subsequently went together to Jijel court to refer the case to the public prosecutor and to request that an investigation be opened. However, the public prosecutor refused “on the basis that it was not useful for the establishment of the truth to postpone the burial of the remains”. Accordingly, he issued a burial permit for Fateh Dafar on 7 February 1995, four days after his execution, without ordering an autopsy and without opening a criminal investigation, in violation of Algerian law, which requires him to do so in the event of homicide. The same day, the chief of police security in Jijel wilaya issued a burial permit and the Department of Management and Administration authorized the transport of his remains from the hospital to the burial site.
2.7On 5 September 2000, in the absence of an adequate and thorough investigation into the circumstances and cause of the death of his son, the author wrote to the Minister of Justice to request that he ask the competent authorities to open an investigation and to identify and prosecute the persons responsible. This effort also proved futile. On 5 May 2006, in response to a request from the author demanding that light be shed on the death of his son, an officer of the El Aouana unit of the national gendarmerie – the same unit that performed the summary execution during which Fateh Dafar was killed – issued a “certificate of disappearance in the context of the national tragedy”. The author considers that such a document is constitutive of the offence of falsifying a public document, which is punishable by life imprisonment under article 215 of the Criminal Code. On 13 January 2007, at the insistence of the author, the same officer issued a death certificate in his son’s name, without however indicating the cause or circumstances of his death.
2.8Despite all the efforts made by the author, no investigation has been undertaken, nor have those responsible for the execution of his son been held to account. The author emphasizes that it is now legally impossible, in the light of the promulgation of Ordinance No. 06-01 of 27 February 2006 on the implementation of the Charter for Peace and National Reconciliation, for him to bring his case before the judicial authorities. Domestic remedies, which had already proved useless and ineffective, are thus now totally unavailable. The Charter for Peace and National Reconciliation provides that “no one, whether in Algeria or abroad, has the right to use or make use of the wounds caused by the national tragedy in order to undermine the institutions of the People’s Democratic Republic of Algeria, weaken the State, impugn the integrity of all the agents who have served it with dignity, or tarnish the image of Algeria abroad” and rejects “all allegations holding the State responsible for deliberate disappearances”. The Charter further provides that “reprehensible acts on the part of agents of the State, which have been punished by law whenever they have been proved, cannot be used as a pretext to discredit the security forces as a whole, who were doing their duty for their country with the support of its citizens”.
2.9According to the author, Ordinance No. 06-01 prohibits the opening of legal proceedings on pain of criminal prosecution, which relieves the victims of any obligation to exhaust domestic remedies. Article 45 of the Ordinance in fact prohibits any complaint of disappearance or other offences, by providing that “no individual or class action may be taken against members of any branch of the defence and security forces of the Republic for actions carried out to protect persons and property, safeguard the nation and preserve the institutions of the People’s Democratic Republic of Algeria”. By virtue of this provision, any allegation or complaint must be declared inadmissible by the competent legal authority. Furthermore, article 46 of the Ordinance establishes that: “Anyone who, through his or her spoken or written statements or any other act, uses or makes use of the wounds caused by the national tragedy to undermine the institutions of the People’s Democratic Republic of Algeria, weaken the State, impugn the honour of its agents who served it with dignity or tarnish the image of Algeria abroad shall be liable to a term of imprisonment of 3 to 5 years and a fine of 250,000 to 500,000 Algerian dinars. Criminal proceedings shall be automatically initiated by the public prosecutor’s office. The penalty is doubled for repeat offences.”
2.10The author adds that the effect of this law is to grant amnesty for crimes committed in the prior decade, including the most serious crimes, such as summary executions. Moreover, the law prohibits, on pain of imprisonment, the use of the justice system to establish the fate of victims. The Algerian authorities, including the judicial authorities, are manifestly refusing to establish the responsibility of the national gendarmerie, members of which carried out the summary execution of Fateh Dafar and six other victims. This refusal counters the effectiveness of the remedies sought by the family.
The complaint
3.1The author claims that Fateh Dafar was the victim of an extrajudicial execution carried out as part of a systematic and widespread practice.
3.2The author also claims that the extrajudicial execution of his son, deliberately carried out by officers of the El Aouana gendarmerie brigade – agents of the State party – constitutes a violation of Fateh Dafar’s right to life under article 6 (1) of the Covenant.
3.3The State party’s failure to fulfil its duty to safeguard the right to life is compounded by its failure to investigate and shed light on the summary execution of Fateh Dafar. Since February 2006, pursuant to Ordinance No. 05/29, it has been prohibited to prosecute members of the Algerian defence and security forces. The author is therefore unable to exercise his right to an effective remedy, in violation of article 2 (3), read alone and in conjunction with articles 6 and 7 of the Covenant.
3.4The author also considers that Fateh Dafar was the victim of a violation of the right not to be subjected to treatment contrary to article 7 of the Covenant and of his right as a detainee to be treated with humanity in accordance with article 10 (1). The author reiterates that his son was detained incommunicado from 26 November 1994 to 3 February 1995, a total of 70 days, without his family being informed of the reasons for his detention. Conscious of the fact that torture was systematic in Algerian detention centres and was practised in a climate of impunity throughout the internal conflict of the 1990s, the author infers that his son was subjected to ill-treatment and acts of torture during his detention. In any event, the suffering and anguish provoked by Fateh Dafar’s summary execution constitute a violation of his rights under articles 7 and 10 of the Covenant.
3.5The situation of anguish and distress in which the author and his family were placed, combined with the feeling of powerlessness caused by the failure of the authorities to respond to their requests, also constitutes a violation of their rights under article 7 of the Covenant.
3.6The author also alleges a violation of article 9 (2) and (3) of the Covenant in respect of Fateh Dafar, given that he was arrested without being informed of the reasons for his arrest and was not brought before a judicial authority.
Lack of cooperation by the State party
4.On 5 March 2015 and 10 December 2018, the State Party was invited to submit its observations on the admissibility and merits of the communication. The Committee notes that it has not received any response and regrets the refusal of the State party to provide any information in this regard. In conformity with article 4 (2) of the Optional Protocol, the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its representatives, and to provide the Committee with whatever information is available to it.
Issues and proceedings before the Committee
Consideration of admissibility
5.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.
5.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
5.3Regarding the exhaustion of domestic remedies, the Committee recalls that the State party has a duty not only to carry out thorough investigations into alleged violations of human rights brought to the attention of its authorities, particularly violations of the right to life, but also to prosecute, try and punish anyone held to be responsible for such violations. Although the family of Fateh Dafar has brought his summary execution to the attention of the competent authorities on many occasions, the State party has not undertaken any investigations into this serious allegation. Moreover, the State party has failed to demonstrate that an effective remedy is available given that Ordinance No. 06-01 is still being applied, despite the Committee’s recommendations of 2007 that it should be brought into line with the Covenant. The Committee is also concerned that the State party has not provided any information or observations on the admissibility or merits of the communication. In the circumstances, the Committee finds that it is not precluded from considering the communication under article 5 (2) (b) of the Optional Protocol.
5.4Furthermore, the Committee notes that, due to the changes made to the Algerian legal framework in 2006, the author has been unable to assert his right to an effective remedy to denounce the summary execution of his son in 1995, as no remedy is available for this purpose. The Committee also notes that the present communication was submitted to it in 2014. The Committee recalls that, according to rule 99 (c) of its rules of procedure, a communication may constitute an abuse of the right of submission when it is submitted five years after the exhaustion of domestic remedies by the author of the communication. The wording of this provision gives a degree of discretion to the Committee, which is competent to determine when the rule should not be strictly applied. The Committee has already considered cases of summary execution imputed to the State party. For example, the cases of Nasreddine and Messaoud Fedsi, Nedjma Bouzaout and Mohamed Belamrania were brought to the Committee’s attention in 2010 and 2012, although the summary executions of these individuals had taken place in 1997, 1996 and 1995, respectively. The Committee notes that, in these three cases – as in the present case – the State party did not claim that the communications constituted an abuse of the right of submission. Moreover, the Committee previously noted, in 2007 and 2018, that Ordinance No. 06-01 categorically prohibited the prosecution of members of the defence and security forces, and thus seemed to promote impunity. The Committee considers that this climate of impunity, which is reinforced by the legal prohibition on bringing cases before the judicial authorities, has an indisputably negative impact on the ability of victims to assert their right to an effective remedy at both the national and international level. Declaring the present communication inadmissible on the ground of abuse of the right of submission could have the effect of encouraging the State party to continue to impede the right to an effective remedy for the victims of such serious violations of the right to life. The Committee therefore does not consider that, in the special circumstances of the case, the present communication would constitute an abuse of the right of submission.
5.5The Committee considers that the author has sufficiently substantiated his allegations for the purposes of admissibility and proceeds with its consideration of the merits of the claims made under articles 2 (3), 6 (1), 7, 9 and 10 (1) of the Covenant.
Consideration of the merits
6.1The Committee has considered the present communication in the light of all the information submitted to it, in accordance with article 5 (1) of the Optional Protocol. It notes that the State party has not replied to the author’s allegations, to which, in the circumstances, due weight must be given insofar as they have been sufficiently substantiated.
6.2The Committee notes the certificate issued on 6 March 1995 by the director of taxation in Jijel wilaya indicating that, on 26 November 1994, the security services arrested Fateh Dafar at his workplace. It also notes that, according to witnesses on the scene, during the night of 3 February 1995, 70 days after his arrest, Fateh Dafar was executed by gendarmes on a beach in El Aouana, together with six other persons; and that the following morning the author went to the morgue to identify his son.
6.3The Committee also notes the author’s allegation that the authorities only issued a death certificate 12 years after the events, at his insistence, and that the public prosecutor at Jijel court issued a burial permit without an autopsy or an investigation having been carried out. The Committee further notes that this lack of investigation persisted, despite the requests made by the author and his family to the public prosecutor asking for an investigation to be opened, and despite the statements of several witnesses confirming that they saw the gendarmes summarily execute Fateh Dafar and six other people on a beach in El Aouana. Furthermore, the Committee notes with concern that, despite the fact that all the information provided seems to indicate that Fateh Dafar was the victim of a summary execution perpetrated by gendarmes, and despite the fact that the public prosecutor issued a burial permit for his body, the El Aouana brigade of the national gendarmerie nevertheless issued a certificate of disappearance to Fateh Dafar’s family on 5 May 2006.
6.4The Committee further notes the author’s fear of being subjected to reprisals by the authorities for having sought to clarify the circumstances of the death of his son, in light of articles 45 and 46 of Ordinance No. 06-01, which criminalizes all complaints about the Algerian defence and security forces. Referring to its jurisprudence, the Committee recalls that the State party must not apply the provisions of the Charter for Peace and National Reconciliation to persons who invoke the provisions of the Covenant or who have submitted or may submit communications to the Committee. The Covenant requires the State party to show concern for the fate of every person and to treat everyone in a manner that respects the inherent dignity of the human person. As the amendments recommended by the Committee have not been introduced, Ordinance No. 06-01 contributes, in the present case, to impunity and therefore cannot, as it currently stands, be considered compatible with the provisions of the Covenant.
6.5The Committee further recalls that, according to its jurisprudence, the burden of proof cannot rest solely with the authors of a communication, especially when the authors and the State party do not have equal access to the evidence and when the State party is often in sole possession of the relevant information, such as information related to the arrest and execution of Fateh Dafar. In the absence of any rebuttal by the State party, the Committee attaches due weight to the author’s allegations and finds that the State party denied Fateh Dafar the right to life in particularly serious circumstances, in view of the fact that he was clearly the victim of a summary execution by members of the national gendarmerie, in violation of article 6 (1) of the Covenant.
6.6The Committee notes the author’s additional allegations to the effect that Fateh Dafar was subjected to ill-treatment and acts of torture prior to his execution and that he was undoubtedly in acute psychological distress and emotional anguish before he was executed. The State party has not adduced any information to contradict these allegations. The Committee finds a violation of article 7 of the Covenant in respect of Fateh Dafar.
6.7In view of the above, the Committee will not consider separately the claims based on the violation of article 10 of the Covenant.
6.8The Committee also takes note of the anguish and distress caused to the author and his family by the execution of Fateh Dafar, along with the feeling of powerlessness that they experienced over the lengthy period from the arrest of the author’s son in 1994 to the author, after numerous attempts, obtaining a death certificate for his son in 2007. The Committee considers that the facts before it disclose a violation, in respect of the author, of article 7, read alone and in conjunction with article 2 (3) of the Covenant.
6.9With regard to the alleged violation of article 9 of the Covenant, the Committee takes note of the author’s allegations – confirmed by a certificate issued on 6 March 1995 by the director of taxation in Jijel wilaya – that Fateh Dafar was arbitrarily arrested, without a warrant, was not formally charged and was not brought before a judicial authority, which would have enabled him to challenge the lawfulness of his detention. In the absence of any information from the State party in this regard, the Committee considers that due weight must be given to the author’s allegations. The Committee therefore finds a violation of article 9 of the Covenant in respect of Fateh Dafar.
6.10The author also invokes article 2 (3) of the Covenant, which imposes on States parties the obligation to ensure accessible, effective and enforceable remedies for all persons for asserting the rights recognized in the Covenant. The Committee recalls the importance it attaches to the establishment by States parties of appropriate judicial and administrative mechanisms for addressing claims of violations of the rights guaranteed under the Covenant. It refers to its general comment No. 31 (2004), which states that a failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.
6.11In the present case, the author repeatedly requested that an investigation be opened into the execution of his son in order to clarify the circumstances of his death. However, despite the fact that the case quite clearly concerned an extrajudicial execution carried out by members of the gendarmerie, the Algerian authorities refused to open an investigation. On 5 May 2006, the national gendarmerie even issued a certificate confirming that Fateh Dafar had disappeared. Subsequently, at the insistence of the author, on 13 January 2007, the gendarmerie issued a death certificate without however indicating the cause or circumstances of death, all the while mentioning that Fateh Dafar had been found dead on a beach. The Committee notes that, nonetheless, no investigation has been carried out by the competent judicial authorities, despite the fact that they could not be unaware of the events, and that those responsible have not been prosecuted, even though the alleged suspects were likely part of the El Aouana brigade of the national gendarmerie, commanded by Captain B., and thus easily identifiable. The Committee finds that the facts before it disclose a violation of article 2 (3), read in conjunction with articles 6, 7 and 9 of the Covenant, in respect of Fateh Dafar, and of article 2 (3), read in conjunction with article 7 of the Covenant, in respect of the author.
7.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of articles 6, 7, and 9 of the Covenant and of article 2 (3), read in conjunction with articles 6, 7, and 9 of the Covenant, in respect of Fateh Dafar. It also finds a violation by the State party of article 7, read alone and in conjunction with article 2 (3) of the Covenant, in respect of the author.
8.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In the present case, the State party is obliged to: (a) conduct a prompt investigation that is effective and thorough, impartial and independent, and transparent into the alleged summary execution of Fateh Dafar; (b) provide his family with detailed information on the results of the investigation; (c) prosecute, try and punish those responsible for the violations committed; and (d) provide the family of the victim with adequate compensation. Notwithstanding the terms of Ordinance No. 06-01, the State party should ensure that it does not impede enjoyment of the right to an effective remedy by victims of crimes such as torture, extrajudicial executions and enforced disappearance. It is also under an obligation to take steps to prevent similar violations in the future. To that end, the Committee is of the view that the State party should review its legislation in accordance with its obligation under article 2 (2) of the Covenant and, in particular, repeal the provisions of the aforementioned Ordinance that are incompatible with the Covenant, to ensure that the rights enshrined in the Covenant can be enjoyed fully in the State party.
9.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the present Views. The State party is also requested to publish the Committee’s Views and to have them widely disseminated in the official languages of the State party.