ALGERIA: ARBITRARY DETENTION OF TWO ALGERIAN NATIONALS, ONE A JOURNALIST AND THE OTHER A RESEARCHER

The International League Against Arbitrary Detention urges the Algerian Government to take all necessary measures to implement Opinion No. 24/2024 of the United Nations Working Group on Arbitrary Detention concerning Mustapha Bendjama and Raouf Farrah, starting by asking from the Algerian Government to immediately and unconditionally release Mr. Bendjama and grant both of them an enforceable right to compensation and other remedies in accordance with international law.

Read the full Opinion of the Working Group regarding Mustapha Bendjama and Raouf Farrah Opinion No. 24/2024.

ARRESTED FOR PUBLICATIONS ON SOCIAL MEDIA AND HAVING ALLEGEDLY HELPED IN THE ESCAPE OF AN ACTIVIST

Mustapha Bendjama, born in 1990, is a journalist and editor-in-chief of “Le Provincial” newspaper. After being arrested on multiple occasions between 2019 and 2021 following publication on social media and for having participated to protests, he was sentenced to various fines. Besides, Mr. Bendjama has reportedly been banned from leaving the country since November 2019, a decision which was rescinded in April 2022 but which the police continue to enforce.

Raouf Farrah, born in 1986 is a Canado-Algerian researcher in Geopolitics.

On 8th February 2023, Mr. Bendjama was arrested at his workplace for allegedly having collaborated to the departure of a banned activist which Mr. Bendjama denied. At least five people were arrested on the same charge, including Mr. Farrah on 14th February 2023. Mr. Bendjama reportedly was remanded in custody for more than 10 days before being brought before the Prosecutor of the Constantine Court. He has been charged with “criminal conspiracy to commit the crime of illegal immigration” and “trafficking in migrants as part of an organised criminal conspiracy”, under articles 176, 177 and 303 bis of the Algerian Criminal Code. He was also accused of “having received funds from foreign or national institutions in order to commit offences against public order” and of having “published on electronic networks or via the technological tools of the media information which is partially or totally classified as secret”.

After being brought before the Prosecutor of the Constantine Court, he has been placed in pre-trial detention where he remains till date. On 3rd October 2023, Mr. Bendjama’s lawyers requested his release due to the legal deadline being exceeded. With the request being denied, Mr. Bendjama went on hunger strike the same day.

Mr. Farrah was prosecuted for “receiving funds with the aim of committing acts likely to undermine public order” and for “publishing classified information or documents on an electronic network”.

On 29th August 2023, Mr. Farrah was sentenced to two years imprisonment and to a fine. On 26th October 2023, on appeal, the Constantine Court sentenced Mr. Bendjama and Mr. Farrah to eight months imprisonment and a year of suspended sentence. Having served his sentence, Mr Farrah was released the same day.

The Algerian government had the opportunity to contest the source’s allegations which was done on 1st February 2024.

ARRESTED AND PLACED IN CUSTODY WITHOUT JUDICIAL REVIEW

Mr. Bendjama and Mr. Farrah were respectively arrested on 8th and 14th February 2023. In this context, the Working Group reiterated that although their detention is in accordance with the national law, regulation and practices as assured by the Algerian government it may not be in conformity with the relevant provisions of international law. The source maintained that their custody lasted for 10 and 5 days respectively without being subject to a judicial review. However, as mentioned by the Human Rights Committee, any time beyond the 48-hour mark ought to remain absolutely exceptional and be justified by the circumstances. The Working Group therefore concluded that the authorities were in violation of article 9(3) of the Covenant.

Hence, Mr. Bendjama being accused on the basis of article 38 of the ordinance N° 21-09 which came into force after documents classified as “secret” had been sent to him, the Working Group pointed out that nobody should be sentenced for actions or omissions which were not a punishable offence according to national or international law at the time they were performed. Then, the Working Group concluded to the violation of article 15 of the Covenant.

The Working Group considered that Mr. Bendjama and Mr. Farrah’s detentions were arbitrary in accordance with category I.

ARRESTED AND IMPRISONED FOR HAVING USED THEIR RIGHT TO FREEDOM OF EXPRESSION AND ASSOCIATION

According to the source, Mr. Bendjama and Mr. Farrah were persecuted because of their journalistic and research activities. The Government failed to prove how these activities were eliciting violence nor could they prove how the imposed restrictions were lawful, necessary and proportionate as required by article 19 of the Covenant. The Working Group therefore considered that the authorities were in violation of article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights.

As per the source, Mr. Bendjama and Mr. Farrah were sentenced for taking part in a fundraising event in support of the families of prisoners in the Hirak movement. Also, Mr. Bendjama is said to have received funds from Mr. Farrah for a research project on governance in Algeria carried out for a non-governmental organisation. The Government being unable to present how these charges were a part of the authorised exceptions to the right to freedom of association, the Working Group concluded to the violation of article 22(1) of the Covenant and article 20 of the Universal Declaration of Human Rights.

In view of the above, the Working Group concluded that the detentions of Mr. Bendjama and Mr. Farrah were arbitrary in accordance with category II.

DEPRIVED OF THEIR RIGHT TO A FAIR TRIAL

In light of the above conclusions in category II, the Working Group notes that no trial should have occurred. However, a trial did occur and led to both men being sentenced to imprisonment and fines.

Reiterating the violation of article 15 of the Covenant, resulting from the misapplication of Ordinance No.21-09 to Mr. Farrah's case, and considering that the judgment did not specify which documents Mr. Farrah had allegedly published, the Working Group considered that the authorities had violated Mr. Farrah's right to a fair trial, including his right to have his conviction and sentence reviewed by a higher tribunal, pursuant to article 14(5) of the Covenant.

The Working Group restated its preoccupations regarding the use of ordinance No. 21-09 to target Human Rights Defenders and associated organisations and considered that the planned severe sanctions and absence of exceptions for whistleblowers or investigative journalists render the law subject to abuse and to an overly broad application.

Given the Government refrained from responding to the ill-treatment allegations, the Working Group considered that the source proved sufficiently that Mr. Bendjama was subjected to a cruel and inhuman treatment which could be categorised as torture in order to force the access to the evidence held against him and to make him sign an admission of guilt and that at least part of these evidence were used during the trial. Those practices are in violation of article 14(3)(g) of the Covenant, article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the violation of these rights decreases one’s ability to defend themselves and impedes on their right to a fair trial notably the right of presumption of innocence enshrined in article 14(2) of the Covenant and article 11 of the Universal Declaration of Human Rights as well s the right not to be compelled to confess guild as per article 14(3)(g) of the Covenant.

As per the above, the Working Group concluded that the violations of Mr. Bendjama's and Mr. Farrah's right to a fair trial were of such gravity as to render their detention arbitrary under category III.

CONCLUSIONS OF THE UNITED NATIONS WORKING GROUP ON ARBITRARY DETENTION

In light of the above-mentioned elements, the UN Working Group on Arbitrary Detention concluded that the detention of Mustapha Bendjama and Raouf Farrah was arbitrary and fell into categories I, II and III because their deprivation of liberty was in violation of articles 2, 3, 7, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles 2, 9, 14, 19, 21, 22 and 26 of the International Covenant on Civil and Political Rights.

The Working Group considered that given all the circumstances of the case, the appropriate remedy would be to release Mr. Bendjama immediately and unconditionally and to grant both Mr Bendjama and Mr. Farrah the right to obtain redress and reparation in accordance with international law.