CAT/C/46/D/341/2008 political or administrative authorities, that she brought the case before advisory or mediation bodies and sometimes sent complaints to the prosecution services (prosecutors or State prosecutors), without initiating a legal appeals procedure and taking it to its conclusion using all available remedies, including judicial appeal and cassation proceedings. Among all the authorities in question, it was only the representatives of the public prosecutor’s office who by law had the authority to initiate a preliminary police investigation and to bring the case before an investigating judge to investigate a case as part of a judicial investigation. In the Algerian judicial system the State prosecutor is the person who receives complaints and who, if necessary, initiates the public action. 4.3 The State party notes, however, that to protect the rights of the victim or his survivors, the Code of Criminal Procedure authorizes the survivors to act by claiming damages in criminal proceedings directly before the investigating judge. In such cases, it is the victim and not the prosecutor who initiates the public action by bringing the case before the investigating judge. Such a procedure, covered by articles 72 and 73 of the Code of Criminal Procedure, was not used, although it would have been sufficient to allow the complainant to initiate the public action and oblige the investigating judge to proceed with the investigation, even if the prosecution decided otherwise. Thus, a simple signed and dated complaint filed with the investigating judge by the family would have sufficed to initiate public action. That procedure, covered by articles 72 and 73 of the Code of Criminal Procedure, was subject to appeal before the indictments and cassation appeals chamber of the Supreme Court. Under article 73 the investigating judge orders that complaints filed by victims or their survivors be forwarded within five days to the State prosecutor for indictment. The prosecutor must indict within five days of receiving the communication. The charges may be brought against a person who is named or unnamed. The State party notes that there are exceptions to this procedure. The prosecutor may indeed decide not to prosecute, either because the acts in question cannot be legally prosecuted or, if the acts have been proven, if no criminal provisions relate to them. In cases where the investigating judge decides to pursue another channel, he must provide a reasoned order to that effect. 4.4 The State party emphasizes that the victim and the prosecutor are two parties in the criminal proceedings, each of which has similar and parallel prerogatives under Algerian law. The complainant and her family decided not to use that channel for redress, which offered the possibility of initiating public action without having to wait for the prosecutor to voluntarily do so. The State party considers that the victim’s family had preferred to await a “hypothetical” reply from the public prosecutor’s office. 4.5 The State party furthermore notes that according to the complainant, the adoption by referendum of the Charter and its implementing legislation, in particular article 45 of Order No. 06-01 of 27 February 2006, make it impossible to consider that there are effective, useful and available national remedies in Algeria for families of victims. On that basis, the complainant believed that she was exempted from the obligation to bring the case before the competent authorities, prejudging their position and their assessment of how the aforementioned article 45 would be applied, both in respect of its compliance with the Algerian Constitution and with its compatibility with the Convention against Torture. The complainant cannot invoke the Order and its implementing legislation to absolve herself from initiating the available judicial proceedings. As a State based on the rule of law, the State party is governed by the constitutional principle of the separation of powers. By arguing that the case is admissible without submitting the underlying facts to the national courts, the complainant is indirectly calling for the Committee to share her suspicion and assumptions regarding the functioning of the Algerian justice system and the independence of Algerian judges. The State party thus calls on the Committee to declare the complaint inadmissible for failure to exhaust domestic remedies, in accordance with article 22, paragraph 5 (b), of the Convention. 6 GE.11-43885