THE ALGERIAN MIRAGE: LOST DATA IN A DESERT OF INJUSTICE

Honorable Justice Akila Bouacha

&

Ms. Farida Bouattoura

December 29, 2021

Abstract

The Algerian State reports a functioning judicial system and satisfactory prison conditions in Algeria. However, human welfare-focused organizations have joined efforts to investigate further issues such as the Penal code and its application, Pre-trial detention, vulnerabilities to COVID 19, mortality rates, and how they relate with prison density. Although homicide rates, prison density, and pre-trial detention are said to have remained static, various data sources support a lack of information, transparency, and clarity regarding the actual prison conditions and functionality of the judicial system in Algeria. This paper will argue that the present situation in Algeria is veiled from the world, and the judicial system and prison conditions warrant concern and investigation. The primary factors for this argument are 1) Lack of transparency: There are no consistent open records or annual Statistics. 2) Biased interpretation, construction/adjustment, and application of the law to benefit the State, emphasis on penal and procedural code, article 125 Bis, Article 95 Bis, and Article 87 Bis; that are a creation of vast overarching laws and adjustments, which are boundless and can encompass anyone or any institution.

Prison conditions in Algeria

The portfolio of data presented by the Algerian authorities depicts a state of satisfactory prison conditions: only 89% density, steady prison population, with no alarming spikes, and 147 of 162 closed prison facilities. According to Algerian authorities, these depicted numbers do not merit any concern from domestic or international organizations. Nevertheless, on June 21, 2021, Humans Rights Watch and 81 civil society groups called on the 47th session of the Human Rights Council in Geneva to address the increasing human rights violations in Algeria. They urged the council to condemn “the cracking down on peaceful Algerian protesters, journalists, civil society groups, human rights defenders, trade unionists, lawyers, and even political parties .” They also “urged authorities to cease all arbitrary arrests and prosecutions and release all individuals arbitrarily detained”. Evidently, these are polarized opinions, the former insisting on common rights offenses and the latter focusing on political opinion accusations, and this on its own merits concern and further investigation.

Contradicting Sources

The Algerian national homicide rate has not changed since 2015. Prison density, as well as prison population, has also not altered for years. However, according to Prison-Insider, in 2020, there was an increase of 31 prison facilities from 131 facilities to 162. Prison Density has had no reported change since 2014, claiming 89% density, despite the increase in capacity and an unfluctuating prison population of 65,000. For 2020, Prisonstudies.org reported 162 facilities, of which 147 were closed prisons, 12 open jails, and three centers for minors. Furthermore, the U.S. Department of State 2020 report indicated sources for a 7 to 10 % above capacity/over crowdedness in 4 out of 49 prison facilities Nationwide (in 2019). The sources are undoubtedly contradicting, including lack of information, transparency, and clarity results in an inaccurate depiction of the Algerian prison conditions.

Prisonstudies.org, UNODC, and the U.S. State Department reported a prison density of 89%. This metric has remained the same since 2014, despite other updates provided in recent years. It seems that density data has either been neglected for over seven years, remained the same for seven years, or has not been calculated or recorded.

According to the U.N. Human Development Program, density is not the only controversial statistic. Algeria has a steady 1.4 homicide rate (homicide per 100,000), a rating closely resembling the United Kingdom’s 1.3 and even lower than Belgium’s 1.7. The UNODC data shows that Algeria was assigned goal 16 under sustainable development integration. The U.N. Human Development program’s Goal 16 aims to “significantly reduce all forms of violence, and work with governments and communities to end conflict and insecurity.” Seemingly, cryptic choice of a goal for a country with a homicide rate comparable to the United Kingdom and lower than Belgium’s. Specifically, on the UNODC database, Algeria has a target of: 16.1, significantly reducing all forms of violence and related death rates everywhere. The indicator was 16.1.1 Number of victims of intentional homicide per 100,000 population, by sex and age; an external source reported this indicator.

This is contradictory for a country with a steady 1.4 reported homicide rate. Other indicators and targets were listed. However, data is incomplete despite the categorization of sources. The lack of data presents a grave challenge, as it depicts an inaccurate image of the present situation in Algeria. There must be an in-depth analysis and identify areas of strength and development to improve the quality of the study. This; however, is not possible without accurate and consistent data.

Inconsistency is also present in criminal and survey data reported by the Algerian authorities to the UNODC (United Nations Office on Drug and Crime). Drugs (Individual Drug Seizures, IDS) information is the only category submitted for 2021 and previous years. These reports show seizures of 64,269 kg of cannabis, 393 kg opioid type, and only 316 kg cocaine type for 2019. According to UNODC (2018), only 672 kilograms of cocaine have been reported as seized; contradicting the ISS (Institute for Security Studies) report. They reported a 701kg cocaine bust in May 2018, by customs authorities in the port of Oran.

COVID-19

UNODC expressed concern over prison facilities and their vulnerability to COVID-19 in its guidance note. Quoting Justice Project Pakistan, COVID-19, and Prisoners, “it is estimated that nearly 550,000 prisoners in 122 countries have become infected with COVID-19, with close to 4,000 fatalities in prisons in 47 countries.” This concern was even more alarming due to “Unavailable, inconsistent or inaccurate prison statistics” from some countries. The UNODC’s guidance notes further state that “the announced number of releases did not always reflect the actual number of prisoners and detainees released.” According to the JPP website, three prisoners were infected, yet five prisoner deaths were recorded in Algeria.

Further analysis of the World Map Number of COVID+ Prisoners and Deaths excel file provides additional information and details: different explanations of terms, findings, and sources. The “total number of infections among prisoners (including recoveries and deaths)” in Algeria was three, and the “total number of prisoner deaths” was five. Oddly enough, Algeria is the only nation on the World Map Excel data presented with a higher death rate than infectious rate. The sources listed were elwatan and observalgerie, two national daily newspapers; nevertheless, no Algerian record from any department was provided/ referenced. Whether it is 89% density for prison facilities, as reported by the Algerian State, or 7 to 10% overcrowded prisons, it is rather astonishing to learn that only three prisoners have been reported as infected by COVID-19. UNODC suggested that 6% of the global prison population was reported infected, which makes the Algerian figures look suspicious.

Page 6 of the UNODC guidance note provides several recommendations for its member states, one of which states: “Consider including certain categories of pre-trial detainees, in addition to convicted prisoners, as eligible for emergency release mechanisms, particularly those accused of minor and non-violent offenses and those who have already served a long period of pre-trial detention” This recommendation, arguably, has not been implemented by the Algerian Judicial system, as arrests and sentences of peaceful activists and journalists have continued throughout 2020 and 2021.

Pre-Trial Detainees

The State Department report stated that observers included government-appointed officials to credit the overcrowded cells to overuse pre-trial detention. For 2019, 12% of the prison population were reported to be pre-trial detainees. The U.S. State Department notes that the 2017 Period Review was the latest provided statistics available, and it reported 10% for pre-trial detainees. The report explains, “prolonged pre-trial detention remained a problem. Non-governmental observers believed that pre-trial detainees were a significant portion of the total. ‘ Further adding to the confusion, the Ministry of Justice, as of August 29, announced that approximately 18 percent of the prison were pre-trial detainees. There is obviously a lack of consistent yearly statistical information. The data calculated and recorded is not clear, but what is clear is a severe lack of organization, accessibility, and transparency in record keeping and communication. If the 2017 Period Review was the latest provided statistics available, then where did the 2020 data come from? What is the source for the 18% the justice minister referred to? This disorienting collage of data makes analysis completely arbitrary. Analyzing the density from 2014, pre-trial detainees from 2017, a consistent prison population of 65,000, a homicide rate that has not changed for years will not provide an accurate picture of 2020, nor any other annual period. On November 9, 2021, the Law Society of England & Wales society and several other undersigned organizations expressed mutual concern about the ongoing pre-trial detention of Mr. Abderraouf Arslane “on the baseless charges that appear to be laid for unlawful criminalizing his legitimate activities as a lawyer.” The Law Society further explained that Mr. Arslane was an attorney representing several detainees; he was the defense attorney for several peaceful advocates and demonstrators. The Joint Letter: Algerian Authorities’ Alarming Crackdown on Pro-Democracy Forces during HRC 47 reported arbitrary detention and physical and sexual abuse of prisoners, including minors.

The Law, Penal and Procedural Code

The second attributing factor is biased interpretation, construction/adjustment, and application of the law to benefit the State; with emphasis on procedural codes Article 123 and Article 125 bis, and Penal Code Article 95 bis, and Article 87 bis– Penal codes that are creations of vast overarching laws and adjustments that are boundless and can encompass anyone or any institution. Regarding pre-trial detention, Algerian procedures have the provisions of Article 125 bis 1 -(Law nْْ 90-August 24 18,1990). Which states: “The examining magistrate can order judicial control if the defendant incurs a prison sentence or more serious sentence.” This means that pre-trial detention is not inevitable, but protocols that weigh the accusations and individual’s record of producing a just alternative exist.

Procedural Code

Article123

For example, a small financial dispute (like a bounced check) between two individuals with no violent record or allegation does not warrant detention until trial. The measure of pre-trial detention as a means of protection for both prosecution and defense, not a one size fits all application. In fact, according to Article 123, “Pre-trial detention is an exceptional measure,” where there must be one of three exceptions/reasons to enact pre-trial detention:1. In the prevention of manipulation of evidence; and/or complication with accomplices. 2. Protection of victims, families of victims, or protection of the public (from repeat offenders). 3. Infraction of Article 125 bis, which are agreements for alternatives to detention.

Article125 Bis

Article 125 bis 1 – (Law nْْ 90-August 24 18, 1990) is the procedural code that the magistrate used to determine appropriate action and its extent. In such cases, the examining magistrate may impose one or more obligations on the accused as an alternative to pre-trial detention. The examining magistrate may, by reasoned decision, add or modify one of the following obligations:

1- Not to go outside the territorial limits determined by the examining magistrate unless authorized by the latter,

2- Not to go to certain places determined by the examining magistrate,

3- To report periodically to the services or authorities designated by the examining magistrate,

4- To Submit either to the registry or to the security services, appointed by the examining magistrate, all documents allowing exit from the national territory or to exercise a profession or other activity subject to authorization in exchange for a receipt,

5- Not to engage in certain professional activities when the offense was committed in the exercise or on the occasion of the exercise of these activities and when it is feared that a new offense will be committed,

6- To refrain from meeting certain persons designated by the Judge instruction,

7- To undergo treatment or care examination measures even during hospitalization, in particular for the purposes of detoxification,

8- To deliver the forms or specimen check to the registry and not use them without the authorization of the examining magistrate.

These procedures are measures to provide just and individual decisions to each case based on its merit. In the event of protests, or peaceful advocacy, and/or minuscule offense, direct imprisonment is not the law, nor constitutional. Magistrates by law are entitled to weigh their decision based on the facts of the case and not on any other external factor. This procedural code acts as a filter to enact justice and relatively low pre-trial detention when possible.

This, however, has a grim reality in the application. As stated by the Freedom in the World 2020 report, Algeria’s “[a]nti-corruption laws, a lack of government transparency, low levels of judicial independence, and bloated bureaucracies contribute to widespread corruption at all levels. Moreover, anti-corruption investigations are often used to settle scores between factions within the regime.” Although the penal producers and law have provisions to preserve justice and order of the law, its hands are tightened by corrupt execution and external involvement. Biased interpretations and inconsistent application of the law, where articles are practiced only to the convenience of the State, is one of the attributing factors to the current rise in pre-trial detention and the current political State.

Penal code

Article 95 Bis

The corruption of the State has no limitation. There were even revisions made during the absence of parliament (by presidential decree, in February 2021). These revisions (bis) solely benefit the current regime and ensure its preservation. Penal code: modify and supplementing by Ordinance nْ20-06 of April 28, 2020: Art 2 Ordinance 66-156 of June 8, 1966, aforementioned is supplemented by article 95 bis.

Art 95 bis.- Is punished by imprisonment of five (5) to seven(7) years and a fine of 500.000DA to 700.000DA, anyone who receives funds, a donation or an advantage, by any means, from a State, of an institution or of any other public or private body or any legal or natural person, inside or outside the country, to perform or incite to perform acts likely to endanger the security of the State, to the stability and normal functioning of its institutions, to national unity, to territorial integrity, to the fundamental interests of Algeria or to public security and order.

A vast overarching law and its additions that are boundless and can encompass anyone or any institution the regime wants. It now declares donations, remittances, financial aid of any kind from family members, and advocacy as a punishable crime. A clear example of overextension and abuse of power is to preserve the regime’s supremacy.

Article 87 Bis

Another example of these vast overarching laws and amendments that are boundless and can encompass anyone or any institution is Article 87 bis that was modified and supplemented, after parliamentary closure due to presidential decree, by Ordinance nْ21-08 of June 8, 2021: Article 87 bis was amended, supplemented, and drafted as follows:

Any act aimed at the Security of the State, national unity, and the stability and normal functioning of institutions by any action aimed at 1-13 actions previously listed with the addition of work or incite, by any means whatsoever, to gain power change the system of governance by non-constitutional means; undermine the integrity of the national territory or incite to do so, by any means whatsoever.

Clearly, declaring that power change of the system is a direct violation of Article 87 bis. The article uses vague language such as “by any means whatsoever,” casting a vast network that can encompass any action(s) it sees fit. The addition goes even further by listing certain individuals, political parties, and their associations as terrorists and acts of terrorism. Entities who commit one of the acts provided for in Article 87 bis are classified as “terrorist entities” by the commission. The amendment further explains that no person or entity is registered on the list mentioned in the article, unless and until they are subject to a preliminary investigation, criminal prosecution, and/or whose guilt is declared by a judgment or decision.

For the purposes of clarification, an entity means any association, body, group, and/or organization, no matter their form or name, can fall within the scope of provisions of Article 87 bis of this Penal code. The decision is registered on the national list that is published in the Official Journal of the Algerian, Democratic, and Popular Republic. This publication will constitute notification of people concerned, who, in turn, have the right to request their removal from the national list. This request is the jurisdiction of the commission and can be made within thirty (30) days from the date of publication of the registration’s decision. The concern here is that there is no declared commission nor are the members listed anywhere until October 7, 2021; Even worse, individuals who were accused under this article, including defense attorney Arslane, were accused before the addition and modification to Article 87 bis, which was not ratified till December 2021; one of 13 laws was ratified in one day. These laws were presidential decrees, and the parliament is said to have ratified them with no transparency or details on votes (who voted for what). Making this an Ex Post Facto scenario, where the law was constructed after the allegations.

On February 28, 2021, executive Tebboune closed parliament by presidential decree. During parliament’s absence, there were several presidential decrees and amendments and adjustments. The mass amendments and adjustments continued even after the reinstatements of parliament. The laws; however, were still drafted by the minister of justice and presidential decrees. Parliament was reopened in June, where they had a ceremony that elected a president of the congress. The ceremony commenced with the Fatiha (part of the Quran), followed by the national anthem, to finally discuss the two main topics of the current State of Palestine and Libya. After this charade, parliament did not ratify any law till December 1, 2021; Where all 13 of the presidential decrees were fully ratified through the bicameral parliament in one day.

Legal Analysis

In August 2021, there were 25 amendments and adjustments to Article 211 (where there was no parliament). On December 1, Article 211bis 25 was ratified along with 12 other laws in parliament passing through their senate and house of representatives in one day. Ratification process includes a meeting to dispute and analyze laws, to view strengths, intentions, and weaknesses. Clearly, 13 laws in one day are quite a stretch, especially when you include 25 amendments to only one of the articles. Worse is there is no transparency as to the voting counts; who voted for what? How many representatives voted? How many were for or against? Were there any concerns whatsoever? This form of legal gymnastics is fabricated for limitless flexibility of the state, absolute, and unchallenged regime; and to ensure its survival. This is done by declaring any challenge to the regime’s power as an act of terrorism against the State.

Conclusion

This paper has argued that present deteriorating human rights conditions in Algeria are veiled from the world and that both the judicial system and prison conditions warrant concern. The two attributing factors discussed were: 1) Lack of transparency; there are no consistent open records and/or annual Statistics. 2) Biased interpretation, construction/adjustment, and application of the law to benefit the State, emphasis on penal and procedural code, article 125 Bis, Article 95 Bis, and Article 87 Bis; that are a creation of vast overarching laws and adjustments, which are boundless and can encompass anyone or any institution.

1) Lack of transparency; the sources are undoubtedly contradicting; lack of information, transparency, and clarity results in an inaccurate depiction of the Algerian State, prison conditions, primarily pre-trial detainees. Imprisonment of Pre-trial detainees, such as Attorney Arslane, violates the presumption of innocence, as defendants are granted release while the trial is pending. In an age of data and information, organizations of any type need to keep consistent and accurate records. Data analysis provides a clear depiction of situations so that areas of strength and development are identified. Applying goals are drafted to address gaps and create improvements from these trends and patterns observed. This is not plausible in Algeria’s Prison and justice system, as there is not a consistent and accurate source of data and information. The sources are undoubtedly contradicting; lack of information, transparency, and clarity results in the inaccurate depiction of the Algerian prison conditions perpetuating current conditions, veil injustices, and mount concerns. These concerns are reported by several organizations worldwide, including human rights watch, law societies, both international and domestic. The notion of an attorney being detained at court for providing defense to peaceful protestors paints a distinct reality from the mirage conjured by the Algerian regime.

2) Biased interpretation, construction/adjustment, and application of the law to benefit the State: The reality is that these laws aim to stop external aid and support from the Algerian community overseas (Article 95 bis) in order to weaken the Hirak movement and any resistance through financial suffocation. Using pre-trial detention as an acceptable means to falsely imprison individuals (violation of procedural code Article 123 and Article 125 bis). Article 87 bis of the Penal Code delivers the final blow by labeling resistance and protestors as “terrorist entities” and “acts of terrorism” to ingrain fear and rally international support of the Algerian regime in the name of global war on terrorism.