CCPR/C/121/D/2283/2013
2.5
In this context, Mahmoud Boudjema’s wife made numerous inquiries, which she at
times had to stop out of fear of reprisals, in particular between 1998 and 2003. She thus
went to the prosecution services of the Jijel and Taher courts, the local authorities
competent to deal with her husband’s disappearance, but her complaints were not even
registered. These informal inquiries with the administrative authorities, gendarmerie
brigades, military barracks and police stations, of which there were many, were fruitless.
She also sent: (a) a registered letter on 27 May 1997 to the commander of the Jijel military
district asking him to intervene and to shed light on her husband’s disappearance; and (b) a
formal complaint, on 3 June 1997, to the State prosecutor of the Jijel court. Her inquiries
went unanswered, and as she received threats of reprisals, she suspended her search efforts
until 2005.
2.6
On 2 January 2005 Mahmoud Boudjema’s wife sent a letter: (a) to the President of
the National Advisory Commission for the Promotion and Protection of Human Rights; (b)
the President of the Republic; (c) the Prime Minister; (d) the Minister of the Interior; and (e)
the Minister of Justice. No action was taken in response. On 4 January 2005 her complaint
was finally registered by the Taher court. It issued an order dismissing criminal proceedings
on 18 June 2005. She received a notification of the dismissal, without any justification for it,
more than a month after the decision was taken, thus making it impossible to appeal to the
indictment division of the court.
The complaint
3.1
The author considers that his communication is in compliance with the conditions
established by article 5 of the Optional Protocol to the International Covenant on Civil and
Political Rights. He emphasizes that the submission on 30 November 2008 of the same case
to the Working Group on Enforced or Involuntary Disappearances (case No. 10002539)
does not prevent the Committee from considering the case, as the Working Group cannot be
likened to a procedure of international investigation or settlement. He further argues that
the numerous inquiries made by the victim’s wife, through both the administrative
authorities and the courts, demonstrate that domestic remedies have been exhausted. He
adds that the domestic remedies are particularly ineffective with regard to the question of
enforced disappearance, as the authorities systematically deny having any knowledge of
cases of persons detained incommunicado. As for the judiciary, he argues that the system
lacks transparency and that the judiciary’s control over the security services is limited.
Lastly, he points out that such remedies have been unavailable since the adoption of
Ordinance No. 06-01 of 27 February 2006 implementing the Charter for Peace and National
Reconciliation, as article 45 of the Ordinance prohibits “any proceedings instituted against
any branch of the defence and security forces of the Republic”.
3.2
On the merits, the author alleges that his father is a victim of enforced disappearance
attributable to the State party, as it occurred owing to the acts of representatives of the
people’s national army, in military uniform, as defined by article 7 (2) (i) of the Statute of
the International Criminal Court and article 2 of the International Convention for the
Protection of All Persons from Enforced Disappearance. The author argues that although no
provision of the Covenant expressly mentions enforced disappearance, such practices
involve violations of the right to life, the right not to be subjected to torture and other
inhuman or degrading treatment or punishment and the right to liberty and security of
person. In the present case, the author is claiming that the State party has violated articles 6
(1), 7, 9 (1–4), 10 (1), 16, 17 and 23 (1), and 2 (3).
3.3
The author recalls the paramount nature of the right to life and the obligation of the
State party not only to refrain from arbitrarily depriving an individual of the right to life,
but also to prevent and punish any act involving a violation of article 6, including when the
perpetrator or perpetrators are representatives of the State. He further points out the
obligation of the State to protect the lives of persons in detention and to investigate any
cases of disappearance; as the absence of an inquiry may in itself constitute a breach of
article 6, including in cases where the disappearance is not the result of actions by
representatives of the State. The author argues that his father’s disappearance is beyond any
doubt the result of an operation carried out under the control of the State authorities. The
incommunicado detention in which Mahmoud Boudjema might still be held undeniably
GE.17-21416
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