More Questions than Answers: Abdelmalek v. Algeria

Nouar Abdelmalek, an Algerian citizen, was the Political Commissioner at the Algerian Army. In this official capacity he drafted a report regarding the recruitment of young Islamists in Afghanistan. In this report, he implicated the Minister for Small and Medium-Sized Enterprises and the future Chief of the Movement for a Society of Peace (MSP) Islamic Party, Bouguerra Soltani. Mr. Abdelmalek claimed that because of this report, he was given indefinite leave from his office, and later was arrested and severely tortured during his periods of detention between 2001 and 2005.  He maintained that at one time he was tortured in the presence of Bouguerra Soltani, the then Minister of State, and Colonel Ali Tounsi, the then Director of National Security.

Universal Jurisdiction and forum shopping

Article 22 (5) (a) of the Convention against Torture precludes the Committee from considering a communication if the same matter has been examined under another procedure of international investigation or settlement while Article 22(5)(b) forbids the consideration of communications unless the complainant in question has exhausted all available domestic remedies.

After filing his complaint to the CAT, Mr. Albdelmalek lodged a criminal complaint before the Swiss courts against Mr. Soltani based on universal jurisdiction since Mr. Soltani was on the Swiss territory at the time. In its analysis of admissibility, the Committee opted not to assess whether the Swiss domestic procedures which exercised universal jurisdiction were “another procedure of international investigation” within the meaning of Article 22(5)(a) of the Convention.

Universal jurisdiction is ‘a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim (Enabulele and  Bazuaye, 2014). As it allows for the trial of “international crimes” and is empowered by international law – and sometimes even required by treaties-, the international law aspects of the universal jurisdiction doctrine are unquestionable. As affirmed by the Supreme Court of Israel in Eichmann, “the state which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community, and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations.” Yet, it is the domestic rather than international courts that exercise such jurisdiction.

The Committee’s silence on this subject while declaring the communication admissible denotes that the Committee does not perceive national courts exercising jurisdiction under international law as “international investigation” within the meaning of Article 22(5)(a). Indeed, OHCHR’s answer to “Has the same matter been submitted to another international body?” is:

“If [the complaint] has been submitted to another treaty body or to a regional mechanism such as the Inter-American Commission on Human Rights, the European Court of Human Rights, the African Commission on Human and Peoples’ Rights, or the African Court on Human and Peoples’ Rights, the Committees cannot examine the complaint. The aim of this rule is to avoid unnecessary duplication at the international level. [emphasis added]”

This statement supports the claim that UN Treaty Bodies only perceive “another treaty body” or “a regional mechanism” to be an “international investigation” precluding the Treaty Bodies’ jurisdiction. Indeed, in Chani v. Algeria, the Human Rights Committee also disregarded the relation between admissibility of the communication in question and the criminal complaint of torture lodged against unknown perpetrators of torture under universal jurisdiction by Luxembourg courts. Thus, proceedings before the domestic courts, regardless of their grounds for jurisdiction, do not hinder admissibility of the communications before the UN Treaty Bodies as they are not considered, strictly speaking, “at the international level”.

Burden of Proof Standard

The second striking situation regarding Abdelmalek was the lowered burden of proof criteria of the CAT compared to the Swiss Courts. As previously mentioned, Mr. Abdelmalek initiated criminal proceedings before the Swiss domestic courts against then Minister of State Bouguerra Soltani whom he accused of having tortured him.  Notably, the report prepared by Switzerland’s Direction of Analysis and Prevention Services expressed serious doubts on the veracity of Abdelmalek’s allegations against Soltani. Because of this doubt, the Swiss authorities did not issue an arrest warrant against Soltani.

The Committee did not share this doubts. Pursuant to Article 22(4) of the Convention, the Committee considers communications in the light of all information made available to it. In Abdelmalek, Algeria failed to submit any observation to the Committee regarding the merits of the case, a pattern in Algeria’s strategy that is apparent before other UN Committees (see my post on this). As a response to Algeria’s non-cooperation, the Committee relaxed its burden of proof standard and gave due weight to the submissions of the complainant since the Committee is only required to assess the parties’ claims based on the information made available to it. The Committee, therefore, did not question the truthfulness of Abdelmalek’s statements. Therefore, discharging the burden of proof before the Committee was much easier compared to discharging the burden of proof before the Swiss national court.

Notably, many doubtful questions surrounded Abdelmalek’s story.  It was unclear why he did not raise the matter until 2009 although the alleged incident occurred in 2005 or why he initiated proceedings against Soltani alone and not against other officials. Most importantly, Abdelmalek never provided any evidence refuting Soltani’s claim that he was on an official mission to Sanaa to attend the 32nd session of the Islamic Conference at the time of the alleged torture sessions. However, even these questions were not enough to discredit Abdelmalek’s torture claims before the Committee.

I argue that the reason for the Committee’s acceptance of Abdelmalek’s claims and thus accepting a lower burden of proof standard is two-pronged. Firstly, as previously mentioned, the Committee has the legal policy of giving due weight to complainant’s story in the absence of the State party’s opposing views. This makes the holes (however significant they may be) within the complainant’s story overlooked easily. Secondly, except for L.A. v. Algeria where the applicant did not raise an allegation regarding Article 11, for Algerian communications, the Committee repeatedly found a violation of Article 11 of the Convention. Thus, it is only natural for the Committee to accept torture claims unhesitatingly when it had already found a violation of Article 11 of the Convention, which means that the Committee accepts that the Algerian custodial system itself puts the detainees and arrestees at the risk of being subjected to torture.

Indeed, contrary to its obligations under Article 2(1) of the Convention, Algerian law does not contain any provision either to dissuade the security forces from using illicit means to obtain “confessions” or to ensure the rights of the detainees or arrestees. In fact, Algerian legislation provides for a period of police custody up to 12 days and does not foresee an official registry for prisoners which set the scene for arbitrary detentions, enforced disappearances and officials using illegal methods to obtain statements. The Committee’s burden of proof standard in Abdelmalek therefore signaled that the torture claims would face less rigorous examination if the custodial system makes the detainees and arrestees vulnerable to the acts of torture. This lowered burden of proof standard coupled with five violation decisions in a row show that further endeavor from Algeria is needed to ameliorate the penitentiary sector so as to prevent future violation decisions based on potentially less-than-credible stories. Once the Algerian penitentiary sector improves, the Committee might review its lowered burden of proof standard as a response.

Obstruction of the Proceedings

The third question that Abdelmalek raised concerned the State party’s obligation to cooperate with the Committee in good faith and, in any case, to refrain from obstructing the proceedings under Article 22 of the Convention. On 15 December 2010, Mr. Abdelmalek informed the Committee that he wished to withdraw his complaint. Surprisingly, on 21 October 2010 another letter indicating his desire to withdraw the complaint was sent to his counsel but this time based on different and conflicting reasons for withdrawing. Finally, on 31 March 2011, Mr. Abdelmalek informed the Committee that he decided to proceed with his complaint.

As a justification for his desire to proceed, Mr. Abdelmalek explained that Algerian national courts requested a proof of his wish to withdraw his complaint before the Committee to investigate his complaint against the torture perpetrators at the domestic level; however, once his request for withdrawal was presented, the investigating judge rejected his petition without providing any explanation. In light of such rejection, Mr. Abdelmalek requested the Committee to continue to examine his complaint against Algeria. While the Committee noted the mysterious circumstances surrounding Mr. Abdelmalek’s withdrawal request and reminded Algeria of its obligation of cooperation, it did not find a violation of Article 22 of the Convention.

Conversely, in Sahli v. Algeria, the Committee found a violation of Article 22 of the Convention as the initial complainant, the victim’s brother, withdrew his complaint and later on was replaced by the victim’s widow. In Sahli, the victim’s brother, Mr. Sahraoui Hanafi, who had submitted the initial complaint, and other members of his family were interrogated by the Algerian security forces to provide explanations on the case. Moreover, Mr. Hanafi learned from his cousins (that had been interrogated by the security forces due to an unrelated matter) that he was being surveilled by the secret service. Perceiving these acts as indirect threats towards him and his family and desiring to prevent any future harm, Mr. Hanafi rescinded his complaint before the Committee.

Since the Committee did not find a violation of Article 22 of the Convention in Abdelmalek, a question with respect to the Committee’s criteria for “obstruction” has arisen. While interrogation and surveillance of the complainant were tantamount to an obstruction in Sahli, striking a deal to initiate domestic proceedings and not fulfilling this promise were not deemed as such in Abdelmalek. Conditioning to rescind a complaint before the Committee to initiate domestic judicial proceedings shows at least a prima facie desire to obstruct the communication in question. Moreover, except for its unelaborated refusals of bad faith, the State party did not explicitly deny that it requested Abdelmalek to rescind his complaint. Thus, the question remains as to why the Committee came to different conclusions in these two cases.

Notably, the main procedural difference between these two communications was the Complainant’s resumption of the proceedings in Abdelmalek.  While there was a replacement in Sahli (i.e. Algeria obstructed and the complainant did not continue with the proceedings), Mr. Abdelmalek continued with the proceedings (i.e. Algeria obstructed but the complainant eventually continued with the proceedings). In the absence of an explanation by the Committee, one can speculate that the end-result of the State party’s intervention is an essential element for the Committee’s assessment of the State party’s obligation to cooperate. In other words, we can argue that unless the complaint is effectively and irrevocably withdrawn, the State party’s “intervention” does not amount to an obstruction under Article 22 of the Convention. Thus, unless the intervention causes a replacement of the complainant or renders the communication without a complainant, the Committee does not perceive that intervention as an “obstruction of the proceedings”. Admittedly, however, alternative readings of this non-violation decision are also possible.

Conclusion

Abdelmalek is certainly a case to remember. The Committee’s silence on the questions of universal jurisdiction, of its burden of proof standard and of its criteria for the obstruction of proceedings spoke volumes as to how it may address future communications concerning these issues. Nonetheless, its silence and the ensuing ambiguity leave room for maneuver in future cases, which may be completely at odds with Abdelmalek.  Thus, in order to fully understand the Committee’s criteria on these issues, we must wait for the Committee’s future views.