these bodies replied, the author concludes that
domestic remedies were neither adequate nor
effective. The author recalls that she waited for 19
months after her hearing with the investigating
magistrate for any information on the petition which
she had lodged almost five years earlier.
Issues and proceedings before the Committee
Admissibility considerations
8.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is
admissible under the Optional Protocol to the
Covenant.
5.5 The author contends that certain elements
submitted by the State party confirm the arbitrary
nature of Mr. Saker’s detention and the unlawfulness
of the warrant against him. His conviction was
handed down in secret (no member of his family was
informed of the trial or of the judgement of the
court) on 29 July 1995 by the Court of Constantine.
Further, the State party has not clarified the date,
time or place when Mr. Saker was allegedly released
from detention.
8.2 The Committee notes that the same matter is
not being examined under any other international
procedure, in line with the requirements of article 5,
paragraph 2 (a), of the Optional Protocol.
8.3 The Committee also notes that the State party
maintains that the author has not exhausted available
domestic remedies. On this point, the Committee
takes note of the author’s claim that her complaint
lodged on 20 January 1996 remains under
consideration, and that this exempts her from
exhausting the civil party remedies highlighted by
the State party. The Committee considers that the
application of domestic remedies has been unduly
prolonged in relation to the complaint introduced on
20 January 1996. It has not been demonstrated by
the State party that the other remedies it refers to are
or would be effective, in light of the serious and
grave nature of the allegation, and the repeated
attempts made by the author to elucidate the
whereabouts of her husband. Therefore, the
Committee considers that the author exhausted
domestic remedies in conformity with article 5,
paragraph 2 (b), of the Optional Protocol.
5.6 The author highlights that the issue of
disappearances and prolonged secret detentions in
Algeria are of great concern to human rights
activists. The author also refers to the Committee’s
concluding observations on Algeria during the
consideration of the State party’s second periodic
report. The Committee had urged the State party to
ensure that independent mechanisms be set up to
investigate all violations of the right to life and
security of the person, and that offenders should be
brought to justice. The author submits that no such
mechanisms have been put into place and that
offenders enjoy complete impunity.
Further State party observations and author’s
comments
6.
On 17 November 2003 the State party
reiterated that the author has not exhausted domestic
remedies, and submitted further information on the
merits. Mr. Saker was taken in for questioning on 12
June 1994 by the police. After being held for three
days he was handed over to the military branch of
the judicial police for further questioning on 15 June
1994. As soon as that questioning ended, Mr. Saker
was released. Finally, the judgement of 29 July 1995
pronounced in absentia sentenced Mr. Saker to
death.
8.4 As to the alleged violation of article 14,
paragraph 3, the Committee considers that the
author’s allegations have been insufficiently
substantiated for purposes of admissibility. On the
question of the complaints under articles 2,
paragraph 3; 6, paragraph 1; 7; 9 and 10, the
Committee considers that these allegations have
been sufficiently substantiated. The Committee
therefore concludes that the communication is
admissible under articles 2, paragraph 3; 6,
paragraph 1; 7; 9 and 10, of the Covenant and
proceeds to their consideration on the merits.
7.
By letter of 5 February 2004 the author
refutes the State party’s version of events and
reiterates her own version. The author also
highlights the contents of the letter dated 26
February 1997 from Salim Abdenour (judicial police
officer) confirming the date on which Mr. Saker was
handed over to the Territorial Centre for further
questioning. The author explains that the letter
doesn’t specify the date of arrest as this would have
clearly shown that the length of detention (33 days)
had exceeded the legal maximum of 12 days.10
Consideration of the merits
9.1 The Human Rights Committee has considered
the present communication in the light of all the
information made available to it by the parties, as
provided for in article 5, paragraph 1, of the Optional
Protocol.
9.2 The Committee recalls the definition of
enforced disappearance in article 7, paragraph 2 (i),
of the Rome Statute of the International Criminal
Court: Enforced disappearance of persons means the
arrest, detention or abduction of persons by, or with
the authorization, support or acquiescence of, a State
10
Article 51, paragraph 3, of the Criminal Procedure
Code.
62
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