Kimouche v. Algeria
Effective Remedy | Duty to Investigate | Duty to Prosecute | Amnesties | Burden of Proof | Interim/Urgent Measures | Deprivation of Liberty | Judicial Protection | Refusal to Disclose Fate | Relatives as Victims
The Committee found a violation of the victim's right to liberty and security due to the fact that he was arrested and held incommunicado without any possibility of access to a lawyer or of challenging the lawfulness of his detention. It further made a finding of inhuman treatment both respect to the victim, in light of the suffering involved in being held indefinitely without contact with the outside world, of the circumstances of his disappearance and of the allegation that he was tortured. The Committee also made such a finding with respect to his family, due to the anguish and distress caused by his disappearance and by the uncertainty as to his fate. The Committee further found that the authorities' failure to conduct an investigation into the victim's disappearance effectively placed him outside the protection of the law. It concluded that the State should not invoke national legislation prohibiting the opening of proceedings on cases of disappearance which occurred during the period of "National Tragedy" against those who invoke the provisions of the Covenant, as this deprives them of an effective remedy.
July 10, 2007
Article 2(3) [ICCPR], Article 7 [ICCPR], Article 9 [ICCPR], Article 16 [ICCPR]
Facts of the Case
Mr. Mourad Kimouche was arrested at his house in May 1996 by members of the National People’s Army in paratrooper uniforms in the context of a search operation which led to a number of arrests. The soldiers said that Mr. Kimouche was being detained to help with inquiries, and took him in a service vehicle handcuffed with other men. They brought him at the command headquarters, where the joint forces carried out identity checks. Some of the arrested were released immediately, while others were taken to the gendarmerie, the military barracks or the police station. On the same day, one of the persons released from the barracks stated that Mr. Kimouche had been held with him and that they had both been tortured. According to information received, Mr. Kimouche appears to have been held in a prison for about 22 days. Mr. Kimouche's family launched a number of complaints, but proceedings were dismissed on several occasions. In September 2005, the Special Rapporteur on New Communications and Interim Measures asked the State not to invoke national legislation depriving victims of disappearances of an effective remedy against individuals who had applied to the Committee.