CCPR/C/119/D/2259/2013
his disappearance, the author concludes that domestic remedies have been exhausted and
that the Committee should find the communication admissible.
5.4
Referring to the Committee’s jurisprudence whereby the Charter for Peace and
National Reconciliation cannot be used against persons who submit individual
communications, the author recalls that the provisions of the Charter are certainly not a
satisfactory response to the problem of disappearances, which should be based on respect
for the right to the truth, justice and full redress.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must, in
accordance with rule 93 of its rules of procedure, decide whether or not it is admissible
under the Optional Protocol to the Covenant.
6.2
As required under article 5 (2) (a) of the Optional Protocol, the Committee has
ascertained that the same matter is not being examined under another procedure of
international investigation or settlement. The Committee notes that the disappearance was
reported to the Working Group on Enforced or Involuntary Disappearances. However, it
recalls that extra-conventional procedures or mechanisms established by the Human Rights
Council to examine and report publicly on human rights situations in specific countries or
territories or on cases of widespread human rights violations worldwide do not generally
constitute an international procedure of investigation or settlement within the meaning of
article 5 (2) (a) of the Optional Protocol.5 Accordingly, the Committee considers that the
examination of Brahim El Boathi’s case by the Working Group on Enforced or Involuntary
Disappearances does not render the communication inadmissible under this provision.
6.3
The Committee notes that, by way of disputing the admissibility of the
communication, the State party has simply referred to its background memorandum on the
treatment of disappearances in the light of the Charter for Peace and National
Reconciliation. The Committee recalls that the State party has a duty not only to carry out
thorough investigations of alleged violations of human rights brought to the attention of its
authorities, particularly enforced disappearances or violations of the right to life, but also to
prosecute, try and punish anyone held to be responsible for such violations. 6 The author
notified the competent authorities, both judicial and administrative, of her son’s
disappearance on multiple occasions. The Committee takes note that the National Advisory
Commission for the Promotion and Protection of Human Rights investigated the case of
Brahim El Boathi. However, the author has disputed the results of the investigation and,
given the total lack of information provided by the State party, the Committee accepts her
arguments. The Committee also takes note of the fact that Cheraga court ordered a police
investigation. Nevertheless, since the investigation was carried out by the Oued Koriche
police, of which A.Z., the officer who allegedly arrested and executed Brahim El Boathi,
was a member, the Committee cannot consider the procedure to be impartial. It thus
appears from the facts as described by the author that the State party has not conducted an
in-depth, thorough and impartial investigation of the disappearance. Moreover, the State
party has not offered any specific explanation in its observations regarding the case of
Brahim El Boathi that would lead to the conclusion that an effective remedy is available. In
addition, Ordinance No. 06-01 continues to be applied despite the Committee’s
recommendation that it be brought into line with the Covenant (see CCPR/C/DZA/CO/3,
paras. 7, 8 and 13). The Committee therefore concludes that article 5 (2) (b) of the Optional
Protocol is not an obstacle to the admissibility of the present communication.
5
6
GE.17-07865
See, inter alia, communication No. 2098/2011, Ammari v. Algeria, Views adopted on 30 October
2014; communication No. 2026/2011, Sassene v. Algeria, Views adopted on 29 October 2014;
communication No. 1791/2008, Boudjemai v. Algeria, Views adopted on 22 March 2013, para. 7.2;
communication No. 1779/2008 (and Rev.1), Mezine v. Algeria, Views adopted on 25 October 2012,
para. 7.2; and Djebrouni v. Algeria, para. 7.2.
See, inter alia, Sassene v. Algeria, para. 6.3; Ammari v. Algeria, para. 7.3; Mezine v. Algeria, para. 7.4;
Djebrouni v. Algeria, para. 7.4; Khirani v. Algeria, para. 6.4; and Boudjemai v. Algeria, para. 7.4.
7