[23 February 1996]
* The initial report submitted by the Government of Algeria is contained
in document CAT/C/9/Add.5; for its consideration by the Committee,
see documents CAT/C/SR.79 and 80 and the Official Records of
the General Assembly, Forty-sixth session, Supplement No. 44
(A/46/46), paras. 263-290.
Introduction
1. Algeria
ratified the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment by Presidential Decree No. 89-66
of 16 May 1989, following approval by the National People's Assembly
(Act No. 89-10 of 25 April 1989).
2. Algeria
did not make any reservations at the time of approving and ratifying
the Convention. It also recognized the powers vested in the Committee
against Torture by articles 17 et seq. of the Convention.
3. At the
sixth session of the Committee, Algeria submitted its initial report
under article 19 of the Convention.
4. Under
that same article, Algeria is also submitting its present periodic
report, in two parts. Part I contains general information on all new
measures taken by Algeria to implement the Convention and on any changes
in legislation which affect implementation, from the date of submission
of the initial report to the present. Part II contains supplementary
information pursuant to the observations made by the Committee at
the time of its consideration of the initial report of Algeria.
I. NEW MEASURES AND NEW DEVELOPMENTS RELEVANT
TO THE CONVENTION
A. Measures taken to implement the Convention
5. Under
section 2 of the Criminal Code, entitled "infringements of liberty",
article 11 bis defines and punishes acts of torture. It stipulates
that "any official or agent who carries out torture or orders
it to be carried out in order to obtain a confession shall be punished
by a prison term of six months to three years". This provision
satisfies the provisions of articles 1, 2 and 4 of the Convention,
as it punishes all State agents, whether security service officers
or others, who intentionally inflict physical or mental suffering
on a person in order to obtain a confession. The provision imposes
the same penalty on any State official or agent who, while not himself
committing the material act involving the infliction of torture, has
ordered a third person to do so.
6. At the
same time, article 12 of Executive Decree No. 92-276 of 6 July 1992,
the Code of Medical Ethics, stipulates that "a doctor or dental
surgeon who is asked or required to examine a detainee may not, whether
directly or indirectly, even if only by being present, encourage or
support an attack on the detainee's physical or mental integrity or
dignity. If he finds that the detainee has been maltreated or brutalized
he must so inform the judicial authority. A doctor or dental surgeon
must never assist, participate in or allow acts of torture or any
other form of cruel, inhuman or degrading treatment".
7. Furthermore,
under article 32 of the Code of Criminal Procedure, "any established
authority, public official or civil servant who, in the exercise of
his functions, learns of a crime or offence, is required to inform
the Department of Public Prosecution thereof without delay and to
transmit to the Department any information, reports or documents relating
thereto".
8. Article
72 of the Code stipulates that "any person who claims to have
been injured by an offence may, by filing a complaint, bring a criminal
indemnity action before the competent judge".
9. In conformity
with article 4 of the Convention, Algeria is ensuring that "all
acts of torture are offences under its criminal law".
B. Changes in Algerian legislation since the submission of the
initial report, and new developments likely to affect the implementation
of the Convention
10. For several
years, Algeria has been undergoing profound changes, resulting in
the promulgation of the Constitution of 23 February 1989. This text
set up a general mechanism enshrining the principles for creating
a truly constitutional, democratic and pluralistic State striving
to consolidate individual and collective freedoms and safeguard human
rights.
11. Based
on the principles set forth in the Constitution, the judiciary, which
is an independent branch, has endeavoured to ensure its practical
independence at both the national and international levels.
12. At the
international level, national legislation has been brought into line
with international legal instruments on human rights.
13. At the
national level, earlier legislation has been revised and outdated
texts removed. The criminal penalty of transportation for life; the
economic section of the Criminal Court; and preferential procedures
for certain people awaiting trial have all been abolished. The Code
of Criminal Procedure has been amended to consolidate the basic rights
of the individual:
Police custody
limited to 48 hours;
Communication allowed
between the detainee and his family;
Searches subject to the
consent of the head of household and a warrant from the magistrate;
Limited period of preventive
detention;
Judicial
supervision set up in place of preventive detention.
14. At the
same time, a law on the status of the magistrature, which enshrines
the principle of the independence of the judiciary, has been promulgated.
In addition, a new organizational law on the legal profession has
strengthened the profession's independent nature, and its role of
working to ensure respect for citizens' freedoms and rights and strengthening
and safeguarding the rights of defence. The functions of the notary
and bailiff have also been grouped together as professions.
15. However,
all of these legal provisions have been hindered by a new phenomenon,
characterized by violent expressions of religious extremism and terrorism.
C. Proclamation of the state of emergency
16. The emergence
and proliferation of grave breaches of public order and security of
person and property led the Government, on 9 February 1992, to proclaim
a state of emergency for a period of 12 months (Presidential Decree
No. 92/44).
17. In conformity
with the procedures laid down in the International Covenant on Civil
and Political Rights, to which Algeria acceded in 1989, Algeria, through
the Secretary-General, informed the other States parties that it was
availing itself of the right of derogation from some of the Covenant's
provisions.
18. Because
of the persistent troubles due to terrorist activity, the state of
emergency was extended on 6 February 1993 (Legislative Decree No.
93/02). Its purpose is to restore public order and better ensure security
of person and property as well as the proper functioning of public
services.
19. Under
the presidential decree on the state of emergency, "the Minister
of the Interior, in respect of all or part of the national territory,
as well as the wali, in respect of his district, are empowered
to issue decrees to maintain or restore public order, in keeping with
government directives". The proclamation of the state of emergency
gives the Minister of the Interior, for the entire national territory,
or the wali, for his district, the following powers, in keeping
with government directives:
20. The Minister
of the Interior and the territorially competent wali are also
empowered to order the temporary closure of all types of theatres
and meeting halls and to forbid any gatherings that might disturb
public order and peace.
21. By article
5 of the same decree, "the Minister of the Interior may order
any adult whose actions prove dangerous for public order, public safety
or the proper functioning of public services to be committed to a
custody centre in a specified place". This measure, which the
Government was obliged to apply, particularly during the months immediately
following the proclamation of the state of emergency, was prompted
by a concern to curb acts of violence which jeopardize public order,
individual security and social peace, threatening national stability
in the process. The committal order is issued by the Minister of the
Interior or an authority appointed by him.
22. Executive
Decree No. 92/75 of 20 February 1992, which lays down the conditions
for applying some of the provisions of the presidential decree on
the state of emergency, defines committal to a custody centre as "an
administrative measure of a preventive nature which consists of depriving
all adults whose behaviour might endanger public order and safety,
as well as the proper functioning of public services, of their freedom
of movement by committing them to one of the centres created by decree
of the Minister of the Interior".
23. The same
decree stipulates that the committal order may be the subject of an
appeal to the wali of the detainee's place of residence. Any
appeals, investigated and accompanied by any relevant observations,
are submitted to the "Regional Appeals Council", which issues
its decisions 15 days following the referral. The decree establishes
six such councils, spread throughout the national territory.
24. The detainees
receive assistance and medical care under conditions determined by
the internal regulations applicable to the custody centre. Of the
approximately 10,000 persons taken in for questioning between February
and April 1992, a large number were released a few days after consideration
of their cases. The others were committed to custody centres in conformity
with the above-mentioned decrees. Starting in May 1992, the detainees
were gradually released and the custody centres closed.
25. It should
be pointed out that the exceptional measures taken during the state
of emergency were all accompanied by guarantees of protection of human
rights. No restrictions were placed on the rights and freedoms enshrined
in articles 6, 7, 8, 11, 15, 16 and 18 of the International Covenant
on Civil and Political Rights.
26. The measures
for maintaining or restoring order which the Minister of the Interior
or the wali is empowered to take must be implemented "in
keeping with government directives", particularly with regard
to the observance of human rights and fundamental freedoms.
1. Law on terrorism and subversion
27. In order
to be equipped with legal instruments enabling it to confront terrorist
crime through the judiciary, Algeria enacted a law on terrorism. Legislative
Decree No. 92-03 of 30 September 1992, on action to combat terrorism
and subversion, creates specialized bodies, called "special courts",
to try cases of terrorism.
28. These
special courts are not courts of special jurisdiction and are special
only with regard to the nature of the offences which they are responsible
for trying. This assertion is supported by the fact that:
The remedies allowed
in ordinary cases are available to the accused in special courts
at all stages of the proceedings, with no restrictions whatsoever
(appeal against the decisions of examining magistrates, objection
and application for judicial review in respect of judgements).
29. Lastly,
in conformity with the Constitution and the law, anyone sentenced
to death may receive a presidential pardon. It should be noted that
several persons sentenced to death by the special courts have in fact
been pardoned, and in any event no death sentence has been carried
out since September 1993.
2. Abrogation of the provisions on terrorism and subversion and
elimination of the special courts
30. In an
attempt to standardize its judicial system, Algeria abrogated Legislative
Decree No. 92-03, thereby eliminating the special courts. The phenomenon
of subversion and terrorism has been restored to its normal context
of pure and simple delinquency and is dealt with at the judicial level
by the ordinary courts.
31. Ordinance
No. 95-11 of 25 February 1995, which amends and supplements Ordinance
No. 66-156 of 8 June 1996, on the Criminal Code, created a new category
of criminal acts, "terrorist and subversive crimes", the
judicial procedure for which is handled by the criminal courts. Any
act directed against State security, territorial integrity or the
stability and normal functioning of institutions is defined as a "terrorist
and subversive act" (art. 87 bis of the amended Code)
if it has one of the following aims:
To harm the environment
or introduce into the atmosphere, earth, subsoil or waters,
including the territorial sea, any substance which might endanger
the health of mankind or animals or the natural environment;
D. Ordinance No. 95-12 of 25 February 1995 on clemency measures
32. In an
attempt to encourage the restoration of civil peace, the Algerian
State has decided on clemency measures aimed at creating an opportunity
for persons who have strayed into criminal activities and wish to
become law-abiding once again. A clemency law was adopted, aimed at
repentant terrorists, calling for a series of measures ranging from
exemption from prosecution to the substantial reduction of sentences
and punishments.
33. The clemency
measures call, among other things, for the following:
Any person who
has belonged to one of the organizations covered by article
87 bis (3) of the Criminal Code and who has not committed
one of the offences covered by that article, leading to loss
of human life, permanent disability, breach of the moral or
physical integrity of citizens or destruction of public property,
shall not be prosecuted (art. 2);
If the persons
covered by article 1 have committed crimes entailing loss of
human life or permanent disability, the sentence shall be 15
to 20 years' imprisonment, when the legal penalty is the death
sentence, and 10 to 15 years' imprisonment, when the penalty
is life imprisonment. In all cases, the sentence shall be reduced
by half;
The persons covered
by articles 4, 8, 9, 10 and 11 of the Ordinance shall be taken
immediately to the competent court and brought before the Government
Procurator (art. 7). The latter must immediately prepare a report
establishing the facts and initiate public proceedings. The
persons concerned may, if they so request, undergo a medical
examination.
E. Creation of the National Human Rights Observatory
34. With
the adoption of the 1989 Constitution and Algeria's accession to the
international legal instruments on human rights, the post of Minister
for Human Rights was created in June 1991. However, given the difficulty
in reconciling the defence of human rights with government responsibility,
Algeria, like other countries, decided to set up a National Human
Rights Observatory (established by Presidential Decree No. 92-77,
which was signed on 22 February 1992).
35. An independent
institution attached to the Office of the President of the Republic,
with administrative and financial autonomy, the Observatory is a human
rights monitoring and evaluation body. It plays an advisory role in
fields relating to human rights, and its principal activities are
the following:
36. The Observatory
is involved in raising awareness and popularizing the human rights
principles contained in national legislation and the international
legal instruments on human rights, publishing a quarterly human rights
review, a press review and an internal information bulletin on its
activities.
37. In order
to be closer to the people and to streamline its work of protecting
and promoting human rights, the Observatory is attempting to strengthen
its activities in the field by opening decentralized offices nationwide.
38. As an
example of Algeria's commitment to promoting human rights, the President
recently instructed the various State bodies to give their full assistance
to the Observatory in its mission of monitoring respect for human
rights.
II. SUPPLEMENTARY INFORMATION PURSUANT TO THE OBSERVATIONS MADE
BY THE COMMITTEE AT THE TIME OF SUBMISSION OF THE INITIAL REPORT
Manslaughter
39. Manslaughter
may never be liable to the death sentence or indeed a criminal penalty.
Under article 288 of the Criminal Code, "Anyone who, whether
through maladroitness, imprudence, inattentiveness or failure to observe
regulations, involuntarily commits or is the cause of a homicide shall
be punished by a prison term of six months to three years and a fine
of 1,000 dinars". The perpetrator of manslaughter may therefore
be tried by the criminal courts and be liable to a correctional penalty.
Judicial
error
40. Judicial
error is covered by Algerian legislation within the framework of an
application for a trial review. Article 531 provides that applications
for review may be lodged only against judgements and decisions having
the force of res judicata, by jurisdictions that have pronounced
criminal or correctional penalties. It states that, in matters of
review, it is the Supreme Court which is competent.
41. Article
531 bis holds that any Supreme Court decision by which a convicted
person is found innocent grants that person or his rightful claimants
damages by way of compensation for the moral and material injury caused
to him by the conviction. The application for redress formulated by
the convicted person or his rightful claimants may be submitted at
any stage of the proceedings. Article 531 bis goes on to state
that damages awarded to the victim of the judicial error or his rightful
claimants, the cost of filing and publishing the judicial decision,
and the court costs are to be paid by the State.
42. If the
person applying for review so requires, the decision by which the
convicted person is declared innocent is posted in the jurisdiction
of the court which handed down the conviction, in that of the domicile
of the person applying for review, and in that of the last domicile
of the victim of the judicial error, if that person is deceased. Under
the same conditions, this decision is published through the press,
in three newspapers to be chosen by the court which pronounced the
review decision.
Cruel,
inhuman or degrading treatment
43. Capital
punishment is not considered in Algeria to be cruel and inhuman treatment.
It should, however, be stressed that its application respects the
safeguards guaranteeing protection of the rights of those facing the
death penalty, adopted by the Economic and Social Council in its resolution
1984/50. Thus:
Like all other
criminal penalties, the death penalty may be imposed only for
a crime for which the death penalty was prescribed by law at
the time of its commission, it being understood that if, subsequent
to the commission of the crime, provision is made by law for
the imposition of a lighter penalty, the offender shall benefit
thereby;
The principle of
non-retroactivity is enshrined both in the Constitution and
in article 2 of the Criminal Code, which states that "criminal
law shall not have retroactive effect, save where it prescribes
a lighter penalty";
The death penalty
may not be carried out on pregnant women or on women breast-feeding
a child of under 24 months, nor against a convicted person who
is seriously ill or who has become insane (art. 197, para. 2,
of the Prison Reform and Rehabilitation Code);
The death penalty
may only be carried out pursuant to a final judgement having
the force of res judicata, after remedies with the Appeals
Court and the Head of State have been exhausted. Article 499
of the Code of Criminal Procedure provides that, pending the
expiry of the deadline for application for judicial review and,
if an appeal is lodged, until the Supreme Court decision is
pronounced, there shall be a stay of execution against the decision,
except with regard to civil sentences;
Anyone sentenced
to death, regardless of his crime, has the right to apply for
pardon, or commutation of sentence;
Extradition
44. Independently
of Algeria's accession to the legal conventions governing extradition
and its implementation, the law, including Title I of the Code of
Criminal Procedure, on extradition, defines its legal framework, conditions
(art. 697) and cases where it is denied. Article 698 of the Code enumerates
some cases where extradition is not granted:
When, according
to the laws of the requesting State or of the State of which
the request is made, the prescription of the action was completed
prior to the extradition request, or the prescription of the
penalty was completed prior to the arrest of the individual
whose extradition is requested and, generally, once the public
proceedings of the requesting State have concluded;
If there has been
an amnesty in either the requesting State, or the State of which
the request is made, as long as, in the latter case, the offence
is one which can be prosecuted in that State when committed
outside its territory by an alien.
45. It should
be noted that, as soon as the extradition request reaches the Algerian
Government and the documents in the case file have been examined,
the subject of the extradition request is immediately arrested and
held in the Algiers penitentiary (art. 702 of the Code of Criminal
Procedure). The Criminal Division of the Supreme Court is immediately
seized with reports and all other documents. The alien appears before
the Court within not more than eight days after the papers have been
served. If the Supreme Court hands down an opinion to deny the request
for extradition, that decision is final and extradition may not be
granted (art. 710 of the Code of Criminal Procedure).
46. An individual
who has been provisionally arrested under the conditions stipulated
by article 705 may be released if, within 45 days of his arrest, the
Algerian Government has not received one of the documents mentioned
in article 702 (art. 713 of the Code of Criminal Procedure).
Status
of the magistrature
47. Ordinance
No. 27-69 b of 31 May 1969 on the status of the magistrature considered
the magistrature to be "a specialized function of the revolutionary
power", its main role being to protect and defend the revolution,
which called for a political commitment by the magistrature and the
magistrates. The High Council of the Judiciary was composed of magistrates
elected by their peers but also of representatives from the political
world and the legislature (National People's Assembly).
48. The Constitution
of 23 February 1989 recognized the principle of the independence of
the judiciary based on the strict separation of powers. On that basis,
a new law on the status of the magistrature was promulgated on 12
December 1989 and complemented by a legislative decree of 24 October
1992. These texts define a new mandate for magistrates, ensure their
impartiality and protect them against all forms of pressure. They
recognize the irremovability of magistrates and separate the function
from the rank so that the magistrates' career can develop without
their posts being endangered.
49. The members
of the High Council of the Judiciary representing the political and
legislative authorities have been removed and the Council has become
the only body to deal with the magistrate's career. It is now composed
of eight magistrates (the Senior President of the Supreme Court, the
Chief Prosecutor of the Supreme Court and six magistrates elected
by their peers), four members appointed by the Head of State, and
three members representing the Ministry of Justice. It is chaired
by the Head of State, and the Minister of Justice is Vice-President.
The prison
population in Algeria
50. From
independence in 1962 to the present, the prison population has never
exceeded 28,000, including all categories and nationalities. The capacity
of the 115 penitentiary establishments is about 25,000, a figure which
has been arrived at in accordance with criteria and procedures in
effect at the international level.
51. The penitentiary
system in Algeria permits the use of prison labour on outside work
sites. Some 2,000 detainees have been assigned to agricultural farms
as part of the prison workforce employment programme called for by
the Prison Reform and Rehabilitation Code, which is based on the set
of minimum rules adopted by the first United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, as well as subsequent
United Nations guidelines, standards and recommendations.
The Constitutional
Council
52. The Constitutional
Council (arts. 153-159 of the Constitution) consists of seven members,
two of whom are appointed by the President of the Republic, two elected
by the National People's Assembly and two elected from within the
Supreme Court.
53. The President
of the Republic designates the President of the Constitutional Council
for a single six-year term.
Primacy
of international conventions over domestic law
54. Under
the Constitution, international conventions ratified by Algeria have
a higher legal status than domestic law. This naturally means that
all provisions of international conventions are taken into account
by national legislation in force.
55. By its
Decision No. 1 of 20 August 1989, the Constitutional Council considered
in that regard that "after it is ratified and once it is published,
any international convention becomes a part of national law and, pursuant
to article 123 of the Constitution, acquires higher authority than
that of the laws, authorizing any Algerian citizen to invoke it before
the courts".
Proclamation
of a state of emergency
56. Article
86 of the Constitution states that, in case of compelling necessity,
the President of the Republic, after consulting the Head of Government
and the President of the Constitutional Council, may declare a state
of emergency.
