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VIII. THE ROLE OF THE COURTS

The judiciary plays an important role in addressing the problems that arise when an Algerian citizen has "disappeared." Families have the right to petition the court to conduct criminal investigations into the abduction or arbitrary detention of a relative. Algerian law provides two avenues to do this: Relatives can either seek to have the state prosecutor's office in the relevant jurisdiction open a criminal investigation or they can, under Articles 72 and 73 of the Code of Penal Procedure, file a complaint as a "civil party" before an investigating judge, who examines the facts and makes a recommendation on whether to bring charges.125 The courts can thus play a key role in determining the facts and punishing perpetrators of crimes associated with "disappearances."

Courts also perform an important function with respect to civil matters that emanate from a "disappearance." They rule on applications submitted by families of the "disappeared" and the abducted to obtain death certificates so they can surmount numerous obstacles in everyday life. For example, as long as the father is not listed as deceased in the family's documents, the law requires his signature for his minor children to enroll in school or travel abroad. A death certificate is required also to resolve issues related to inheritance or money in bank accounts.

Under Article 113 of Algeria's family code, a judge can declare a "disappeared" person to be legally dead after the person has been missing for four years. There have been reports of courts inviting families of the "disappeared" to apply for death certificates. Despite the difficult situation they were in, some families have refused on principle to enter this process, fearing that it was a means by which the state could close files without providing answers about the fate of their relatives. But other families of "disappeared" persons have approached the courts to obtain death certificates in the hope of getting on with their lives and resolving their personal affairs.

The Failure of Courts to Investigate "Disappearances"
Officials have held up the justice system as a key recourse for those who seek answers about "disappeared" persons. "Algerian justice will spare no effort, conducted in the framework of the law, to seek solutions to ["disappearance"] cases fully documented with verified evidence," President Bouteflika declared in a 1999 interview. 126 Minister of Interior Zerhouni told the National Popular Assembly, "In terms of the courts, all complaints on ["disappearances"] have been accepted and logged, and have systematically resulted in the opening of judicial investigations."127

A more candid assessment of the judiciary's performance was given by Farouk Ksentini, the president's human rights commissioner. He labelled it as "completely deficient," saying, "`disappearances' are a matter that should be taken up by the courts, but they have not done their job in a single case."128

Families of the "disappeared" and human rights lawyers share this assessment. They have filed hundreds of cases with prosecutors and investigating judges in jurisdictions throughout the country for the offenses of illegal arrest and detention pursuant to Articles 291 and 292 of the penal code. (These Articles, reproduced in Appendix 1, are invoked because forced "disappearance" does not exist as a distinct offense under Algerian law.) Lawyers who have prepared such cases on behalf of the families told Human Rights Watch they knew of no case that resulted in locating a "disappeared" person, alive or dead, or in members of the security forces being charged for any offense related to the "disappearance." Either the plaintiffs receive no response whatsoever from the prosecutor's office or from the investigating judge, or the case remained "pending" with no progress reported, or the responsible judge ruled to close the file.

The lawyers relate that judges and prosecutors handling a complaint of illegal arrest rarely if ever hunt for eyewitnesses. Occasionally, they will summon a member of the immediate family to testify. But it was extremely rare to summon other eyewitnesses, such as neighbors or persons who were arrested at the same time but later released, even when their names and addresses were provided by the plaintiff.

In addition to the examples provided above in the cases chapter, including journalist Aziz Bouabdallah and engineer Mohamed Bounsah, an Algiers human rights lawyer furnished the following case information to Human Rights Watch in April 2002:

Mabrouk Boundaoui "disappeared" on April 4, 1995, in Bourj Zemoura, in the wilaya of Bourj bou Arreridj. His wife, Baya Ben Azouaou, filed a complaint with the investigating judge in Bourdj bou Arreridj. In her complaint, Ben Azouaou stated that witnesses saw members of the garde communale, a civilian defense force, stop her husband on the street and take him away by force, in a Mazda vehicle. Ben Azouaou testified before the judge but instead of summoning officials of the local garde communale, he closed the file on the grounds that the perpetrators were not known. On appeal, the accusation chamber of the court confirmed the judge's decision on December 20, 1999.

Jaâfar Ousrir, born on August 30, 1978, "disappeared" on May 6, 1997, at Ouled Slama, in the wilaya of Blida. Two witnesses, Saliha Aïdani and Guessoum Bouhadjar, signed statements that they had seen uniformed members of the security services arresting Ousrir in the neighborhood where he lives. A complaint was filed with an investigating judge in Boufarik in 1999. However, the judge summoned neither of the two witnesses nor members of the security forces for questioning, before closing the case on the grounds that the abductors could not be identified. The Accusation Chamber upheld the decision.

Miloud Grine "disappeared" on January 9, 1995, in el-Biar, in the wilaya of Algiers. His mother, Khedija Maghraoui, was present when uniformed security force members took him from their home. She filed a complaint in 1999 with the investigating judge at Birmourad Raïs. She told the judge that the perpetrators wore uniforms of the National Popular Army (Armée Nationale Populaire, ANP). On November 18, 1999, the judge closed the case, concluding that the "investigation did not produce any findings regarding the conditions surrounding the abduction and holding" of Grine. The accusation chamber of the Algiers Court confirmed the judge's decision on January 11, 2000. The Supreme Court on February 27, 2001, turned down an appeal (pourvoi) of the decision to close the case.

In its letter to then-Minister of Justice Ouyahia of May 16, 2002, Human Rights Watch solicited comments on the above-mentioned three cases and requested information showing the effectiveness of the judiciary when presented with complaints of "disappearances." No reply was received.

125 Article 72 states, "Any person who believes he has been the victim of a crime can file a complaint as a civil party before the investigating judge in the relevant jurisdiction." ("Toute personne qui se pretend lésée par une infraction, peut, en portant plainte, se constituer partie civile devant le juge d'instruction compétent.")

126 Interview with Bouteflika, Middle East Insight, November 1999, online at http://www.mideastinsight.org/11_99/bouteflika_11.99_3.html (retrieved February 14, 2003).

127 "Réponse de Zerhouni à l'interpellation sur la question des personnes disparues."

128 Human Rights Watch interview, Algiers, November 6, 2002.

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