3.2 As far as the allegations under articles 9 and
19 of the Covenant are concerned, Abbassi Madani’s
arrest was arbitrary and politically motivated. The
charge against him that he had jeopardized State
security was political, since no specific act that could
in any way be categorized as a criminal offence
could be established by the prosecution. He was
reproached for having started a political strike that
the military, and not the civil legal authorities, had
described as subversive. This strike was put down
with considerable bloodshed by the Algerian army,
despite its peaceful nature and the guarantees
provided by the head of Government. Even if a
political protest movement could be categorized as a
criminal offence, which is not the case under
Algerian law, the protest movement had ended
following the agreement between the head of
Government and the party headed by Abbassi
Madani. His arrest by the military police and the
charges brought against him by a military tribunal
clearly served the sole purpose of removing the
president of the main opposition party from the
Algerian political scene, in violation of articles 9 and
19 of the Covenant.
3.3 As for the allegations relating to article 14,
minimum standards of fairness were not observed.
Abbassi Madani was sentenced by an incompetent,
manifestly partial and unfair tribunal. The tribunal
comes under the authority of the Ministry of
Defence and not of the Ministry of Justice and is
composed of officers who report directly to it
(investigating judge, judges and president of the
court hearing the case appointed by the Ministry of
Defence). It is the Minister of Defence who initiates
proceedings and has the power to interpret
legislation relating to the competence of the military
tribunal. The prosecution and sentence by such a
court, and the deprivation of liberty constitute a
violation of article 14.
3.4 With regard to article 9, there is no legal
justification for the house arrest of Abbassi Madani.
The Algerian Government justified this decision by
citing “the existence of this measure in several
pieces of Algerian legislation”, in particular article 6,
paragraph 4, of Presidential decree No. 99-44 of 9
February 1992 declaring the state of emergency,
which was still in force at the time the
communication was submitted. According to the
Government, this decree was in conformity with
article 4 of the Covenant. The Government,
however, never complied with the provisions of
article 4, paragraph 3, pursuant to which it should
“immediately inform the other States parties to the
present Covenant, through the intermediary of the
Secretary-General of the United Nations, of the
provisions from which it has derogated and of the
reasons by which it was actuated”. Article 9 of the
Criminal Code, which prescribes house arrest as an
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136
additional penalty, 6 is applied together with article
11, which obliges a person convicted to remain
within a geographical area specified in a judgement.7
House arrest may thus only be handed down as an
additional penalty in the sentence imposing the main
penalty. In the case of Abbassi Madani, there is no
mention of any decision to place him under house
arrest in the sentence handed down by the Blida
military tribunal. At any rate, article 11 of the
aforementioned Act lays down five years as the
maximum duration for house arrest from the moment
of the release of the convicted person. Since at the
time the communication was submitted Abbassi
Madani had been under house arrest for considerably
more than five years, it constitutes a violation of the
Act itself, which the Algerian Government is
invoking to justify the imposition of that penalty.
3.5 The grounds for placing Abbassi Madani
under house arrest are the same as those for his
arrest and conviction by the military tribunal,
namely the free exercise of his political rights
enshrined in the Universal Declaration of Human
Rights and the Covenant. This measure therefore
constitutes a violation of articles 9, 12 and 19 of the
Covenant.
State party’s observations on admissibility and on
the merits
4.1 On 27 June 2003, the State party pointed out
that there is no indication in the communication that
Abbassi Madani had given anyone the authority to
act on his behalf, as provided for in the rules for
submitting communications to the Committee.
Mr. Salim Abbassi who claims to be acting on his
father’s behalf has not submitted any documentary
evidence of his authority to so act. The power of
attorney given by Salim Abbassi to Rachid Mesli
was not authenticated and should not therefore be
taken into consideration. Furthermore, Rachid Mesli
submitted the petition in his capacity as a lawyer,
when he no longer practises as a lawyer in Algeria,
6
Article 9, Act No. 89-05 of 25 April 1989: “Additional
penalties are: (1) house arrest; (2) banishment order; (3)
forfeiture of certain rights; (4) partial confiscation of
property; (5) dissolution of a legal person; (6) publication
of the sentence.”
7
Article 11, Act No. 89-05 of 25 April 1989: “House
arrest is the obligation on a convicted person to remain in
a particular geographical area, specified in a judgement.
Its duration may not exceed five years. House arrest shall
take effect from the day the prisoner completes his or her
main sentence or upon his or her release. The conviction
shall be communicated to the Ministry of the Interior,
which may issue temporary permits for travel within the
country.”
Ordinance No. 69-74 of 16 September 1969: “A
person placed under house arrest who contravenes or
avoids such a measure shall be liable to a term of
imprisonment from three months to three years.”
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