Mr. Abbassi Madani has availed himself of the domestic
remedies under the law, etc. It should be noted that the
observations of the State party cited above did not elicit
any new comments from the author.
It seems quite clear that all these questions on the
part of the author as well as on that of the State party
should have received the primary consideration of the
Committee in its endeavour to formulate its views in
respect of article 14 in the light of the guarantees spelled
out therein.
Unfortunately, as it appears from paragraph 8.7 of
the communication, instead of giving serious
consideration to these fundamental issues the Committee
has chosen to claim that in trying civilians before military
courts States parties must demonstrate that the regular
civilian courts are unable to undertake the trials, i.e., a
condition which I believe does not constitute part of the
guarantees stipulated in article 14. The Committee found
that in the present case, the failure by the State party to
meet this new condition is sufficient by itself to justify a
finding of a violation of article 14.
Furthermore the Committee, in the wording of
paragraph 8.7, came to the conclusion that the State
party’s failure to demonstrate the need to rely on a
military court in the case means that the Committee need
not examine whether the military court, as a matter of fact,
afforded the full guarantees of article 14. It seems to me
that this last contention by the Committee could be read to
mean that we cannot totally exclude the possibility that
had the Committee chosen, as it should have done, to
examine the question of guarantees it may conceivably
have found that in fact the military trial in question did
meet the guarantees stipulated by article 14 of the
Covenant.
For all those reasons, I find myself unable to
subscribe to the views expressed by the Committee in
paragraph 8.7 of the communication.
(Signed): Ahmed T. Khalil
Communication No. 1173/2003
Submitted by: Mr. Abdelhamid Benhadj (represented by counsel, Mr. Rachid Mesli)
Alleged victim: Ali Benhadj (the author’s brother)
State party: Algeria
Date of adoption of Views: 20 July 2007
Subject matter: Arbitrary detention
The facts as presented by the author
Procedural issue: Power of attorney
2.1 Ali Benhadj is one of the founding members
and, at the time of submission of the communication,
the Vice-President of the Front Islamique du Salut
(Islamic Salvation Front - FIS), an Algerian political
party registered by the State party on 12 September
1989, following the introduction of political
pluralism. In the context of upcoming elections and
following the gains made by FIS in the 1990 local
elections, the Algerian Government was to adopt a
new electoral law which was unanimously
condemned by all the Algerian opposition parties. In
protest against this law, FIS organized a general
strike, accompanied by peaceful sit-ins in public
squares. After several days of strikes and peaceful
marches, the parties agreed to end the protests in
exchange for a revision of the electoral law in the
near future. However, on 3 June 1991, the Head of
Government was asked to resign and the public
squares were stormed by the Algerian army.
Substantive issues: Right to liberty and security of
person; arbitrary arrest and detention; right to
be treated with humanity and with respect for
the inherent dignity of the human person;
right to a fair hearing; a competent,
independent and impartial tribunal; right to
freedom of expression
Articles of the Covenant: 7, 9, 10, 12, 14 and 19
Articles of the Optional Protocol: Finding: Violation (arts. 9, 10 and 14)
1.
The author of the communication, dated 31
March 2003, is Abdelhamid Benhadj, who is
submitting the communication on behalf of his
brother, Ali Benhadj, born on 16 December in 1956
in Tunis. The author claims that his brother is a
victim of violations by Algeria of articles 7, 9, 10,
12, 14 and 19 of the International Covenant on Civil
and Political Rights (the Covenant). He is
represented by Mr. Rachid Mesli. The Covenant and
its Optional Protocol entered into force for the State
party on 12 December 1989.
143
143
2.2 On 29 June 1991, Ali Benhadj was arrested by
military security officers at the State television
headquarters, where he had gone to present his
party’s position. On 2 July 1991, he was brought
before the military prosecutor of Blida and charged
with “crimes against State security” and
“jeopardizing the proper functioning of the national
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