What are the facts behind these proceedings?
Who are the Mohamed brothers? Why are they being prosecuted by the French courts?
Why do French Courts have jurisdiction over this case?
Why did these proceedings take so long?
Why hasn’t the Algerian judiciary investigated this case and that period of Algerian history?
What are the facts behind these proceedings?
In the 1990s Algeria was in the throes of a very violent civil war between the security services, the State-armed militia and the armed Islamic groups. This was the time when summary executions, assassinations, acts of torture, rapes, abductions, and disappearances became common practice among the various parties to the conflict, and were treated with total impunity. The legitimate defence groups (GLD) in the Relizane wilaya (province composed of 38 communes) had approximately 450 members at the start of 1994. The heads of the militia leaders were recruited from among the presidents of the Relizane province DECs (executive community delegations). The DECs were established in 1992 by the Ministry of the Interior after the dissolution of city communal assemblies (assemblées populaires communales) which were controlled by the Front islamique du salut (FIS). Involvement with the militia generated considerable revenue, through theft and plundering, and also through State payments.
The Relizane militia became famous for its abuse of the civilian population in the region (circonscription) which population was at its mercy between 1994 and 1997.
Within the militia, Hocine Mohamed, first deputy to the president of the Relizane DEC and his brother Abdelkader Mohamed, president of the H’madna DEC and head of the H’madna militia were suspected of having committed acts of violence and of terrorising the local population.
Who are the Mohamed brothers? Why are they being prosecuted by the French courts?
The Mohamed brothers were born and raised in Relizane and were known to be members of the militia. According to the complaint filed against them, Hocine Mohamed and Adbelkader Mohamed headed the Rélizane militia. According to victims who escaped and their relatives, the two brothers did not cover their faces. This enabled the relatives of the victims to officially identify them. According to testimony by the victims’ families, the two brothers were guilty of many acts of violence during this period, especially torture, summary executions and forced disappearances. The testimonies were compiled by the Coalition of the families of the disappeared in Algeria (Collectif des Familles de Disparu(e)s en Algérie – CFDA), the FIDH fact-finding mission which was in Algeria in June 2000 and the local representative of the Algerian league for human rights (LADDH).
According to the ruling by the investigating judge (juge d’instruction) at the Tribunal of First Instance (Tribunal de Grande Instance) the Mohamed brothers are accused of torture and barbaric acts against one direct victim acting as civil party and members of the other plaintiffs’ families, also civil parties in the proceedings.
The Mohamed brothers have appealed this decision and a hearing is scheduled for
1 October before the Court of Appeal in Nimes. At the end of July 2015 the office of the Chief Prosecutor released
its position : in a surprise turn of events, the Head Prosecutor requested that
the Investigating Chamber order a complementary investigation, thus opposing the
unanimous position of the Prosecutor and the investigating judge
who both had called for the organisation of a trial of the Mohamed brothers before the Criminal Court.
Why do French Courts have jurisdiction over this case?
By virtue of the extraterritorial jurisdiction of the French judiciary, specifically set out in the United Nations Convention Against Torture, the French courts are authorised to judge a foreigner accused of having committed acts of torture in a foreign place, against foreigners, if the suspect is on French territory. In 2003, the FIDH and LDH (French Human Rights League) were informed that the Mohamed brothers were in France and filed a complaint with the TGI in Nimes for acts of torture. The two suspects have been living in the south of France since that time (one even acquired French citizenship). Seven Algerian victims who lost relatives or have survived stood as the plaintiffs during the investigation.
The French judiciary has already delivered several convictions on the basis of universal jurisdiction. In July 2005 Ely Ould Dah, a lieutenant in the Mauritanian army, was sentenced in absentia to ten years in prison for acts of torture and barbaric acts committed in Mauritania. In September 2010 Khaled Ben Saïd, was sentenced, in absentia, to 12 years in prison for torture committed in Tunisia. And in March 2014, Pascal Simbikangwa was senteneced to 25 years in prison for genocide and crimes against humanity committed in 1994 in Rwanda.
The Relizane case is in line with the three aforementioned cases prosecuted in France on the grounds of universal jurisdiction.
Another case is currently underway in Switzerland, according to the principle of extraterritorial jurisdiction, regarding the implication of General Khaled Nezzar for crimes of torture and crimes of war. The judicial investigation is following its course.
Why did these proceedings take so long?
It took the French justice services a full ten years to complete the investigation and decide to indict the Mohamed brothers. The delay can be explained. The special unit on the prosecution of international crimes was only created in 2012 so did not exist in 2003 when the complaint was filed. This unit is part of the Paris TGI and centralises all legal files on crimes of torture, genocide, crimes against humanity and war crimes. It is composed of prosecutors and investigating judges assigned full-time to the cases, and thus has been able to deal with proceedings more quickly since 2012.
Nonetheless, this case is progressing in slow motion thus illustrating the reticence of the French judicial and political authorities to see it, with all its political and diplomatic implications, come to trial.
What are the next steps?
On 1 October 2015, the Instruction Chamber of the Court of Appeal in Nîmes, seized of the appeal made by the Mohamed brothers against the charges, will have to contradict or confirm the decision of the investigative judge.
If the decision is confirmed, despite the most surprising opposition of the Chief Prosecutor, a trial would finally be organised before the Criminal Court. This would be the first trial ever to be held on the crimes perpetrated by the pro-government militias during the Algerian civil war.
Why hasn’t the Algerian judiciary investigated this case and that period of Algerian history?
In 2005, Algeria adopted a National Peace and Reconciliation Charter that prohibited public mention of the civil war that tore the country apart. This made it impossible to launch any judicial procedure to establish responsibility for crimes committed during that period. Because of the Charter, Mohamed Smaïn, the plaintiff in the court procedure in France and head of the Relizane section of LADDH, was sentenced in 2007 (decision confirmed in 2011) by the Algerian courts to two months in prison without bail for “denouncing imaginary crimes”; these charges can be traced to the Charter. Mohamed Smaïn had drawn the attention of the Algerian media to the discovery of the mass graves near Relizane and had alerted the Algerian authorities so that they could open an investigation. Mohamed Smaïn was arrested in June 2012. He was released one month later after an intense international campaign. At present no judicial procedures can be carried out to conclusion in Algeria; hence the importance of holding the trial in France.
Chronology of the proceedings
2003
10 October 2003 – FIDH and LDH filed a simple complaint for torture, barbaric acts and crimes against humanity with the Public Prosecutor at the Nimes Tribunal of First Instance.
November 2003 – a preliminary investigation is opened and confirms that the two Mohamed brothers reside in Nimes and that Hocine Mohamed has acquired French citizenship by marriage.
11 December 2003 – The Nimes Tribunal of First Instance launches a judicial inquiry for torture and barbaric acts.
2004
18 March 2004 – Several sessions are organised to hear persons close to the Algerian victims (Houari Saidane, EL Habib Aoun and Fethi Azzi).
29 March 2004 – The Mohamed brothers are questioned in their home, remanded into custody, heard by the judicial police and confronted by two of the victims.
30 March 2004 – The investigating judge decides to place the Mohamed brothers under judicial examination. April 2004 – FIDH, LDH and several Algerian victims, represented by two lawyers, Patrick Baudouin and Philippe Expert institute a civil action in the within criminal case.
14 April 2004 – The Observatory for the Protection of Human Rights publishes an urgent appeal on the situation of Mohamed Smain and Féthi Azzi, who came to France to testify and, upon their return to Algeria, received threats and suffered reprisals (Féthi Azzi was demoted and transferred to another service in the Sub-Prefecture and Mohamed Smain was arrested while speaking with journalists who were investigating the forced disappearances, and was held for 20 hours).
18 June 2004 – The investigating judge issues an international rogatory commission to investigate in Algeria.
2005
31 January 2005 – Mohamed Smaïn is heard by the investigating judge
19 July 2005 – The Algerian authorities refuse to conduct the international letters rogatory saying that Algeria has taken all the necessary steps to criminalise acts of torture in its national criminal law and has incriminated several cases and that the nature of the international letters rogatory in question threatens its sovereignty and public order.
2006
27 February 2006 – The National Peace and Reconciliation Charter takes effect in Algeria.
7 April 2006 – The new investigating judge, Mr. Mangin, notifies the parties of the failure of the international letters rogatory in Algeria.
12 April 2006 – Confrontation between the two brothers (Abdelkader and Hocine Mohamed) on the one hand and FIDH, LDH and the two plaintiffs (Houari Saidane and El Habib Aoun) on the other.
21 June 2006 – Me Cabanes, the lawyer for the Mohamed brothers, attached “declarations” stating the withdrawal of certain civil party proceedings. There is also a letter from the plaintiffs’ lawyers criticising the intimidations and threats they had received.
5 December 2006 – They two accused (Abdelkader et Hocine Mohamed) face two victims: Mohamed Saidane and then Fethi Azzi.
2007
26 April 2007 – Confrontation between Hocine called “Adda” Mohamed and the plaintiff Adda Derkaoui.
25 June 2007 – Plaintiffs, Ali Ben Ain Smen and Nassera Dutour are heard as witnesses.
7 November 2007 – Confrontation between Ali Ben Aim Smen (plaintiff) and Hocine Mohamed.
2008
7 January 2008 – Me Lasbeur and Me Verges, lawyers for the defence, (Mohamed Saidane the accused, demand that the brother of M’hamed Saidane be heard as a witness. The summons is served to appear in court on 28 March 2008 but is postponed until 12 June because of denial of visa to enter France.
September 2008 – Appointment of Mr Mathieu as new investigating judge.
2009
27 July – Lawyers for the plaintiffs write to the investigating judge asking that the case be closed as quickly as possible
22 December – Me. Baudouin, as the lawyer for the plaintiffs repeats the request that the judicial inquiry be closed.
2010
25 March – Notification that the investigating judge has issued a closing order for the investigation in application of article 175 of the Code of Criminal Procedure.
8 April – The defence lawyers bring an application before the court for M’hamed Saïdane to be heard and to lift the judicial supervision ordered against the Mohamed brothers.
2011
19 September – The investigating judge notes that it is impossible to carry out the acts requested by the defence and issues an order refusing to introduce additional investigative actions.
5 October – The investigating judge issues a closing order to the investigation in application of Article 175 of the Code of Criminal Procedure.
2013
26 July – The Public Prosecutor files a final submission calling for the Mohamed brothers to be indicted before the Criminal Court.
2014
26 December – The investigating judge orders an indictment before the Criminal Court.
2015
29 July – The Chief Prosecutor opposes the unanimous position of the Prosecutor and of the//investigating judge and calls on the Investigating Chamber to order a complementary investigation.
1 October – Hearing before the Investigating Chamber of the Court of Appeal in Nîmes.