ALGERIA: ARBITRARY DETENTION OF A JOURNALIST

The International League Against Arbitrary Detention urges the Government of Algeria to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 49/2024 concerning Ihsane el Kadi, asking the Government to immediately and unconditionally release them and to accord them an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Ihsane el Kadi: Opinion No. 49/2024

ARREST OF AN INDEPENDENT JOURNALIST

Ihsane el Kadi is citizen of Algeria born in 1959. He is the founder and director of Radio M and of the online journal Maghreb émergent. Both are considered as two of the last free media in the country and Mr. El Kadi is allegedly known for publicly criticizing the government.

He was first arrested on the night of the 24 December 2022 at his house by security officers. His detention was renewed on the 25 and 27 December. On the 25 December, security officers searched and seized all the equipment of Radio M and Maghreb émergent’s offices. On 29 December, Mr. El Kadi was brought before a judge and then was transferred to El Harrach prison in Alger. Mr. El Kadi contested the pre-trial detention decision which was confirmed on 15 January 2023 without his presence.

His lawyer and him decided to boycott the procedure due to violation of Mr. El Kadi’s right to a fair trial, thus, Mr. El Kadi refused to talk during the trial and for his lawyer to appear. The trial started on 10 February 2023.

On 2 April 2023, Mr. El Kadi was convicted to five years in prison, including two years of probation, a 700 000 dinars fine, the dissolution of the parent company of Radio M and Maghreb émergent, and the confiscation of its assets for foreign financing of his company. On 18 June 2023, the appeal court increased the sentence to seven years of prison including two of probation.

The Working Group transmitted the allegations to the Government of Algeria, which chose not to respond.

ARRESTED WITHOUT AN ARREST WARRANT, DENIED THE RIGHT TO PROMPTLY SEE A JUDGE AND SUBJECT TO PRE-TRIAL DETENTION WITHOUT AN INDIVIDUALIZED DETERMINATION

Although the source did not allege violations under category I, the Working Group considered that several allegations raised concerns best dealt with under this category.

According to the source, Mr. El Kadi was not showed an arrest warrant or explained the reason of his arrest. The Working Group considered the arrest not being in flagrant delicto as he was arrested at home. Thus, it found that Mr. El Kadi’s situation was in violation of articles 9 (1) and (2) of the Covenant and 9 of the Universal Declaration of Human Rights as he was arrested without any legal basis due to the absence of an arrest warrant and the lack of information regarding the reasons of his arrest.

Moreover, Mr. El Kadi was not presented to a judge until the 29 December, five days after his arrest. The Working group recalled that prompt presentation before a judge is mandatory and that the delay is set at 48 hours by the Human Rights Committee. The Working Group therefore found a violation of article 9 (3) of the Covenant given that he was placed outside the protection of the law.

Lastly, the Working Group recalled the jurisprudence of the Human Rights Committee about the exceptional status of pre-trial detention and that it must be based on an individualized determination. The government did not provide a response to the Working Group in that regard and therefore failed to justify Mr. El Kadi’s pre-trial detention. As a result, his pre-trial detention lacked an individualized determination in violation of article 9 (3) of the Covenant.

Hence, the Working Group found that the arrests and detentions of Mr. El Kadi lacked a legal basis, thus, his deprivation of liberty qualified as arbitrary under category I.

DETAINED FOR EXERCISING HIS RIGHT TO FREEDOM OF OPINION AND EXPRESSION

According to the source, Mr. El Kadi was detained for his exercise of his right to freedom of expression and opinion as protected by article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights due to his public criticism of the government and his status as a journalist.

The Working Group recalled that the right to freedom of expression and opinion of journalists includes the right to criticize or openly and publicly evaluate their Government without fear of interference or punishment as recognized by the Covenant. It also added that permissible restrictions exist under the protection of rights of others or of national security. The source pointed out that Mr. El Kadi was harassed by the Government on several occasions and he was arrested a few days after publishing an article criticizing the Government. Due to the lack of response from the Government of Algeria and nothing suggesting the application of any permissible restrictions of this right, the Working Group found the situation in violation of articles 19 of the Universal Declaration of Human Rights and article 19 of the Covenant.

Therefore, the Working Group concluded that Mr. El Kadi’s detention was arbitrary within the meaning of Category II.

NO TRIAL BEFORE COMPETENT, IMPARTIAL TRIBUNAL, NO ACCESS TO LEGAL ASSISTANCE OF CHOICE, TIME OR FACILITIES TO PREPARE THE DEFENSE

The source submitted that Mr. El Kadi was not allowed to communicate with a lawyer for five days. In that regard, the Working Group highlighted that access to a lawyer must be granted promptly and that any laws trying to undermine this right were contrary to international norms. For these reasons, the Working Group considered that Mr. El Kadi’s late access to legal assistance amounted to a violation of his right to communicate with counsel of his own under article 14 (3) (b) and (d) of the Covenant.

Furthermore, the source alleged that Mr. El Kadi’s lawyer was not allowed to access valuable documents for the defense of his client and was not allowed either to present his defense as both Mr. El Kadi and his lawyer were not aware of the date of the appeal regarding the pre-trial detention decision. Thus, the Working Group found that Mr. El Kadi’s right to equality of arms, to a fair hearing by an independent and impartial tribunal and to the presumption of, as guaranteed in articles 14 of the Covenant and article 10 of the Universal Declaration of Human Rights, were violated.

Therefore, considering all the above, the Working Group found that the violation of the right to a fair trial and due process of Mr. El Kadi had been of such gravity as to render his deprivation of liberty arbitrary under category III.

DETENTION BASED ON POLITICAL AND OTHER OPINIONS

The source provided that Mr. El Kadi’s political opinions and status were at the center of his cases. It presented that there is an emblematic pattern of the misuse of the judiciary to justify repercussions against journalists, publishers, human rights defenders and political opponents in Algeria. In fact, Mr. El Kadi was often victim of acts of intimidation to silence him, including abusive legal procedure intended against him. For those reasons, the Working Group considered that Mr. El Kadi’s deprivation of liberty on the ground of his political opinions and activism constituted a violation of articles 2 and 7 of the Universal Declaration of Human Rights and 2 (1) and article 26 the Covenant.

Hence, the Working Group found Mr. El Kadi’s deprivation of liberty to be arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Ihsane el Kadi was arbitrary and fell under categories I, II, III and V because his deprivation of liberty was in contravention of articles 2, 3, 7, 9, 10 and 19 of the Universal Declaration of Human Rights and articles 2, 9, 14, 19 and 26 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Algeria take the necessary steps to remedy the situation of Ihsane el Kadi without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ihsane el Kadi and to take appropriate measures. Lastly, it requested the Government to bring its laws into conformity with the recommendations of the opinion.