CCPR/C/112/D/2086/2011 6.3 The authors recall that the State party’s declaration of the state of emergency on 9 February 1992 does not affect the right of persons to submit individual communications to the Committee. Article 4 of the Covenant allows for derogations from certain provisions of the Covenant during states of emergency, but does not affect the exercise of rights under the Optional Protocol. 6.4 The authors further refer to the State party’s argument that the requirement to exhaust domestic remedies calls on the author to institute criminal proceedings by filing a complaint with the investigating judge and suing for damages, in accordance with articles 72 et seq. of the Code of Criminal Procedure. They recall that this procedure, if it is not to be declared inadmissible, is subject to the payment of a surety or “procedural fee”, the amount of which is set arbitrarily by the investigating judge. They consider that the procedure represents a financial deterrent to defendants who, furthermore, have no guarantee that it will actually result in proceedings being initiated. The authors consider that, given the serious nature of the alleged offences, it was the responsibility of the competent authorities to take up the case. The authors refer to the Committee’s jurisprudence in this respect. 15 6.5 The authors reiterate that, following Sahraoui Ayache’s arrest, they tried to find out from the security forces what had happened to him, to no avail. Aïcha Dehimi also informed the prosecution services of the Court of Constantine, the national judicial, governmental and human rights institutions in order for investigations to be carried out. At no time did any of these authorities ever conduct an investigation into the alleged violations. Consequently, the authors cannot be faulted for not having exhausted all domestic remedies since it was the State party that failed to carry out the necessary investigations incumbent upon it. 6.6 The authors also recall that, under article 45 of Ordinance No. 06-01, legal proceedings may not be brought by individuals or groups against members of the defence or security forces. The authors therefore conclude that Ordinance No. 06-01 has indeed put an end to any possibility of bringing civil or criminal proceedings for crimes committed by the security forces during the civil war and that the Algerian courts are obliged to declare any such claim inadmissible. 6.7 With regard to the State party’s argument that it is entitled to request that the admissibility of the communication be considered separately from the merits, the authors refer to rule 97, paragraph 2, of the rules of procedure, which permits the Working Group or the Special Rapporteur to decide, because of the exceptional nature of the case, to request a written reply that relates only to the question of admissibility. This prerogative does not lie either with the authors of the communication or the State party but is the sole prerogative of the Working Group or the Special Rapporteur. The authors consider that the State party was required to submit explanations or observations concerning both the admissibility and the merits of the communication. 6.8 Lastly, the authors note that, since the State party had not submitted any observations on the merits of the communication, the Committee must base its decision on the existing information and the authors’ allegations must be taken as proven given that the State party has not refuted them. 16 15 16 GE.14-21909 periodic report of Algeria (CAT/C/DZA/CO/3), adopted on 13 May 2008, paras. 11, 13 and 17. Lastly, the authors refer to general comment No. 29 (2001) on derogations from the Covenant during states of emergency, para. 1. See Benaziza v. Algeria, para. 8.3. The author cites the decision of the Committee against Torture in communication No. 207/2002, Dragan Dimitrijevic v. Serbia and Montenegro, decision adopted on 24 November 2004, para. 5.3; 11