Message: Majdoub Shani v. Algeria. Message No. 2297/2013. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) March 11, 2016
In 2013, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Algeria.
Subject matter: torture and arbitrary detention.
Substantive issue: torture and inhuman or degrading treatment; arbitrary detention; freedom of movement; equal opportunities and fair trial; deprivation of the protection of the law.
Legal positions of the Committee: The Committee recalls (Communications No. 146/1983, Baboeram Adhin et al. v. Suriname, Views adopted on April 4, 1985, paragraph 14.2; No. 139/1983, Conteris v. Uruguay, Views adopted on July 17, 1985, paragraph 7.2; No. 202/1986, Graciela Ato del Avellanal v. Peru, Views adopted October 28, 1988, paragraph 9.2; No. 30/1978, Bleyer v. Uruguay, Views adopted on March 29, 1982, paragraph 13.3; No. 107/1981, Maria del Carmen Almeida de Quinteros v. Uruguay, Views adopted on July 21, 1983, paragraph 11; No. 992/2001, Boussroual v. Algeria, Views adopted on 30 March 2006, paragraph 9.4.), that the burden of proof... The allegations do not lie solely with the author of the communication, especially since the author and the State party do not always have the same access to elements of evidence and that often only the State party has the necessary information. As implicitly implied by article 4, paragraph 2, of the Optional Protocol, the State party is under an obligation to investigate in good faith all allegations of violations of the Covenant made against it and its representatives and to transmit to the Committee the information it has. In cases where the author submits allegations to the State party that are supported by reliable evidence and the further clarification of which depends on information available exclusively to the State party, the Committee may consider the author's allegations to be substantiated if the State party does not refute them by providing satisfactory explanations or evidence (paragraph 7.2 of the Views).
The Committee recalls its general comment No. 20 (1992) on the prohibition of torture or cruel, inhuman or degrading treatment or punishment, in which it recommends that States parties take measures to prohibit detention in strict isolation (paragraph 7.3 of the Views).
The Committee's assessment of the factual circumstances of the case: The Committee has taken note of the author's complaints under article 7 of the Covenant. The Committee recognizes the degree of suffering caused by incommunicado detention over a period of time... The Committee notes that the author was held in strict isolation for 20 days and during that time was unable to contact his family, doctor or lawyer. The Committee...Takes note of the author's allegations that he was tortured during his detention in strict isolation between 17 September and 6 October 2009. It notes the author's allegations that he was interrogated five to six times a day by employees of the Intelligence and Security Department, during which he was systematically slapped, kicked, punched, spat in the face and strangled; and that they repeatedly forced him to undress and urinated on him when he He asked me to take a shower. The Committee notes that the State party has limited itself to denying these allegations, referring to the fact that they come only from the author, although similar allegations are recorded in the protocol of the interrogation of the accused in the same case, which the investigator conducted on 18 November 2009. The Committee... Notes that the author has alleged acts of torture to which he was repeatedly subjected during the proceedings. In the absence of an investigation into these allegations or convincing evidence, other than a medical certificate, which does not allow for a thorough medical examination after the expiration of the period of detention and the evidentiary value of which has been questioned by the author, the Committee concludes that the State party has violated article 7 [of the Covenant], considered separately and in conjunction with paragraph 3 of article 2 of the Covenant (paragraph 7.3 of the Views).
With regard to article 9 of the Covenant, the Committee notes the author's allegations that he was arrested on 17 September 2009 and held in strict isolation and incommunicado detention, in particular without contact with a lawyer or members of his family, and that his detention in an unknown location took place without control by the Prosecutor's Office, as evidenced by the absence of any actions on the part of the prosecutor before October 6, 2009 - the end date of his detention. The Committee notes that, according to the author, the case file contains neither grounds for detention, nor the prosecutor's permission to detain, nor the prosecutor's permission to extend detention, which indicates the arbitrary arrest and detention of the author. The Committee also notes the absence of an investigation by the State party into the alleged arbitrary arrest and detention of the author in strict isolation, despite the complaints filed by the author. The Committee considers that, in connection with the failure of the State party to provide any explanation regarding the absence of materials in the court case concerning the exact date of the author's arrest, the grounds for his arrest and the legality of his detention, and in connection with the failure to investigate these allegations, the State party violated article 9 of the Covenant, considered separately and in conjunction with article 2, paragraph 3, of the Covenant (paragraph 7.5 of the Views).
The Committee's conclusions: The facts presented reveal a violation of articles 7 and 9 of the Covenant, considered separately and in conjunction with article 2, paragraph 3, of the Covenant (paragraph 8 of the Opinion).