Inadmissibility decision; Subjects: MOROCCO, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.22-01047 (E) 030222 040222
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 923/2019*, **
Communication submitted by:
M.B. (represented by counsel, Olfa Ouled)
Alleged victim:
The complainant
State party:
Morocco
Date of complaint:
14 February 2019 (initial submission)
Document references:
Decision taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted to
the State party on 1 April 2019 (not issued in
document form)
Date of adoption of decision:
19 November 2021
Subject matter:
Torture in detention
Procedural issues:
Exhaustion of domestic remedies; abuse of the
right to submit a complaint
Substantive issues:
Torture and cruel, inhuman or degrading
treatment or punishment; measures to prevent acts
of torture or cruel, inhuman or degrading
treatment or punishment; systematic monitoring
of custody and treatment of prisoners; State
party’s obligation to ensure that its competent
authorities proceed to a prompt and impartial
investigation; right to file a complaint; right to
redress
Articles of the Convention:
1, 2, 11, 12, 13, 14, 15 and 16
1.1
The complainant is M.B., a national of Morocco born in Western Sahara in 1970. He
claims that the State party has violated his rights under articles 1, 2, 11, 12, 13, 14, 15 and 16
of the Convention. The State party has made the declaration pursuant to article 22 (1) of the
Convention effective from 19 October 2006. The complainant is represented by counsel, Olfa
Ouled.
* Adopted by the Committee at its seventy-second session (8 November–3 December 2021).
** The following members of the Committee participated in the examination of the communication:
Claude Heller, Erdoğan İşcan, Ilvija Pūce, Ana Racu, Diego Rodríguez-Pinzón, Bakhtiyar
Tuzmukhamedov and Peter Vedel Kessing. Pursuant to rule 109, read in conjunction with rule 15, of
the Committee’s rules of procedure, and paragraph 10 of the guidelines on the independence and
impartiality of members of the human rights treaty bodies (the Addis Ababa guidelines), Essadia
Belmir did not participate in the examination of the communication.
United Nations
CAT/C/72/D/923/2019
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
28 January 2022
English
Original: French
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1.2
On 1 April 2019, pursuant to rule 114 (1) of its rules of procedure, and taking into
account the information provided by the complainant, the Committee, acting through its
Rapporteur on new complaints and interim measures, requested the State party to: (a) suspend
all use of solitary confinement against the complainant; (b) allow the complainant to be
visited by a doctor of his choice; and (c) identify and immediately implement alternative
measures to detention, such as house arrest, in order to avoid any deterioration in his state of
health. On 2 June 2020, the request for interim measures was reiterated.1 On 23 October 2020,
in the light of new allegations of reprisals against the complainant, the request for interim
measures was again reiterated and the State party was asked to adopt new protection measures
for the complainant, namely to: (a) conduct a prompt and effective investigation into the
complainant’s allegations of reprisals; (b) refrain from all acts of intimidation or reprisal
against the complainant and adopt all necessary measures to protect him; (c) allow the
complainant to meet with his counsel and family by videoconference or telephone in strict
confidence and be visited by his counsel, as a matter of urgency, as soon as measures taken
in response to the coronavirus disease (COVID-19) pandemic are lifted; and (d) explain why
the complainant was temporarily placed in the infirmary of Tifelt 2 prison until his transfer
by providing the relevant medical report ordering this placement.2 On 28 September 2021, in
light of the complainant’s allegations that the interim measures had still not been brought
into effect, the Committee reiterated its request for interim measures to be taken.3
Facts as submitted by the complainant
2.1
From 9 October 2010, thousands of Saharans living in Western Sahara moved to
temporary camps located on the outskirts of towns, including the Gdeim Izik camp near
Laâyoune. The aim of this action was to denounce the discrimination to which Saharans
consider themselves to be subjected by the State party. The complainant stresses that he did
not participate in the creation of the camp since, at that time, he was in hospital for an
operation, and that he went to the camp only on 19 October 2010. On 1 November 2010, he
received a surprise visit from a special envoy of the State party who allegedly offered him a
job and money in exchange for dismantling the camp.
2.2
On 8 November 2010, Moroccan soldiers armed with water cannons and tear gas
attacked the Gdeim Izik camp, which, at the time, was occupied by more than 20,000
Saharans. During the forced evacuation of the camp, clashes broke out between the army and
Saharan demonstrators, during which Moroccan soldiers were reportedly killed. This was
followed by a violent wave of repression led by the Moroccan security forces and supported
by Moroccan civilians residing in Saharan territory.
2.3
On the same day, at around 6 a.m., the complainant, who was accused of being one of
the instigators of the creation of the camp, was taken away by the Moroccan authorities. He
explains that he was handcuffed, blindfolded and given a violent blow to the head, which
caused bleeding, and blows to the legs with a blunt object. He was taken to the gendarmerie
of Laâyoune, to an office where he was handcuffed with plastic ties. He was then suspended
upside down from a bar placed behind his knees while handcuffed and subjected to electric
shocks. He was showered with blows to his legs with an unspecified object for almost 30
minutes, which caused him pain and dizziness. In the afternoon, he was violently slapped,
causing him to bleed. In the evening, he was able to eat and drink but was not allowed to go
to the toilet. He fell asleep on the floor. The following day, a doctor took his blood pressure
and simply gave him a pill. During his four days in detention, he was struck with an object
on his back and limbs, resulting in widespread pain and loss of function. He explains that his
family was never informed of his detention.
1 See the State party’s response in para. 6.
2 See the State party’s response in paras. 9.1 and 9.2.
3 In his comments of 24 September 2021, the complainant emphasizes the complete lack of
implementation of the interim measures by the State party. He states that the solitary confinement in
which he was being held had been further stepped up and that he has not been able to leave his cell,
which measures no more than 5 m2, for over three months. He asserts that he is regularly subjected to
reprisals and searches.
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2.4
On the night of 11 to 12 November 2010, after four days in detention, the complainant
was taken to Laâyoune Court of First Instance, handcuffed and blindfolded. He was left to
wait for almost four hours in a room with several other detainees. Under duress and while
being kicked, he signed a report while still blindfolded, in the presence of a colonel.
Subsequently, the criminal investigation department presented the military investigating
judge with the interrogation record supposedly signed by the complainant and his co-
defendants, containing his confessions, which he was not able to read and has consistently
denied. The complainant made a complaint to the investigating judge, but the judge did not
take into account his allegations and injuries and did not ask for a medical examination to be
carried out. The complainant was then taken back to the gendarmerie.
2.5
The following day, at around 6 a.m., the complainant was flown to Rabat, lying face
down and with his ankles tied. On arrival, he was taken by military court officials and placed
in a jail, where he was again beaten with a blunt object on his forearms and thighs, causing
him pain. He was then placed in detention at Salé prison, where he spent the first night
standing, handcuffed to a wire fence. The complainant states that, during the first few months,
he was slapped, hit, insulted and humiliated by guards. He was placed in solitary confinement
from 18 November 2010 for almost four months. He was not allowed to walk around. He
kept asking to see a doctor. He was simultaneously prescribed more than 24 different drugs,
some with opposite effects and not recommended for the illnesses from which he suffers.
2.6
Having substantiated the indictment, the investigating judge referred the case to the
military court. The trial of the complainant and his co-defendants was held in Rabat, initially
on 1 February and then from 8 to 13 February 2013. On 17 February 2013, the defendants all
received heavy sentences on the basis of confessions that they disputed, claiming to have
been tortured. The complainant was sentenced to 30 years’ imprisonment. During the military
trial, the complainant reported the acts of torture inflicted on him and requested an
investigation. In its interim order of 8 February 2013, the military court recorded the
defendants’ allegations of torture but did not grant the request for an investigation. After the
trial, several international organizations highlighted the lack of evidence and the absence of
an effective investigation into the allegations of torture.4
2.7
On 27 July 2016, the Moroccan Court of Cassation overturned the 2013 judgment of
the military court that imposed a stiff sentence on the complainant without any evidence other
than his confession signed under torture. The Court of Cassation referred the case to the Rabat
court of appeal, and a new trial began on 26 December 2016. Throughout the trial, all the
defendants repeatedly asked the court of appeal to annul the records signed under torture and
to remove them from the case file.5
2.8
On 19 July 2017, the Rabat court of appeal upheld the complainant’s 30-year sentence.
The complainant states that, despite his allegations of torture, the court did not initiate a
formal investigation. It merely ordered a medical examination by three Moroccan forensic
doctors who were not trained in the Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Istanbul Protocol) and did not provide adequate guarantees of independence. The
complainant points out that other co-defendants had refused to undergo a medical
examination for this reason. The report of the medical examination concluded that “his
current symptoms and the objective findings of our examination are not specific to the various
alleged methods of torture”. The court therefore considered this as evidence that no acts of
torture had occurred. In July 2017, the complainant and his co-defendants lodged an appeal
in cassation that is still pending. The complainant notes that his previous appeal had been
successful only after three years and that, in any event, the Court of Cassation will once again
deal only with matters of law.
4 Human Rights Watch, Morocco: Tainted Trial of Sahrawi Civilians, 1 April 2013.
5 This request was rejected by the public prosecutor’s office, which did not launch an investigation, in
violation of the Criminal Code. Moreover, the court decided to consider the essential matter of
whether the records were null and void together with the merits of the case, as can be seen from the
judgment. Thus, the records could be discussed during the six months of the trial, and, despite a
request for their annulment, the decision on their validity was handed down only at the end, at the
same time as the verdict.
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2.9
On 16 September 2017, the complainant was transferred from El Arjat prison to
Kenitra prison. His family and lawyer were not informed. During the transfer, he was
mistreated. He did not receive either a blanket or his medication on arrival. On 19 and 20
September 2017, the complainant and the other detainees went on a hunger strike against the
ill-treatment and the arbitrary transfer to a prison even further away from their families. He
was placed in a damp, poorly ventilated cell with mould-covered walls from which water was
dripping. He was repeatedly confined to his cell for 22 hours a day. His family was no longer
able to visit him every week, as the prison is more than 1,200 kilometres from Laâyoune, and
telephone calls with his family were permitted only once per week, for a few minutes.
2.10
On 1 March 2018, the complainant and the other detainees went on a 24-hour hunger
strike, refusing to eat unless they were brought closer to their families and stopped being
subjected to daily harassment by the guards. The prison governor informed the detainees that
he had received an official note stating that, if they started a hunger strike, they would be
placed in solitary confinement. On 9 March 2018, the complainant and the other inmates
began another hunger strike and, as a punishment, were placed in solitary confinement and
allowed to have only 5 litres of water and no sugar. The complainant’s counsel filed a
complaint of ill-treatment owing to the prolonged solitary confinement but received no
response.6 During the 33 days of the hunger strike, the complainant was placed in a cell
measuring just over 2 m2 that had no ventilation, was extremely damp, with walls covered in
mould, was cold, had no natural light, no bed, and did not meet minimum standards of
hygiene. The cell was full of vermin, and the squat toilet was right next to his head when he
was sleeping. He did not see his doctor during the entire period of his solitary confinement.
2.11
On 7 May 2018, the complainant was moved to Tifelt 2 prison and then placed in
solitary confinement until 11 June 2018 for no reason. His counsel again complained to the
authorities about inhuman and degrading treatment but received no response. On 12 October
2018, the complainant was placed in solitary confinement without any justification, in a
punishment cell. He went on a hunger strike to protest against his placement in solitary
confinement and was moved a few days later to his previous cell, which is in the block for
inmates with mental health problems, even though the complainant had not been diagnosed
with any such problems. He contends that he was deprived of contact with other prisoners,
news from outside and his rights to contact his French lawyer of choice and receive regular
visits from his family, and that he was unable to see a doctor from outside the prison. His
unheated cell lacks natural light and ventilation. Moreover, he does not receive his beta
blocker regularly.
2.12
The complainant ended his hunger strike on 13 November 2018, without any doctor
or prison official having approached him. The particularly severe treatment to which the
complainant is being subjected is having a disastrous effect on his mental and physical state,
particularly in the absence of medical care.
The complaint
3.1
The complainant claims that the State party has violated his rights under articles 1, 2,
11, 12, 13, 14, 15 and 16 of the Convention.
3.2
The complainant argues that the physical abuse he suffered constitutes torture under
article 1 of the Convention. He was subjected to the so-called “suspension method” during
interrogations and struck repeatedly with a blunt object. He was also deprived of food and
water. He considers that this treatment and his solitary confinement also amount to cruel,
inhuman or degrading treatment or punishment under article 16 of the Convention. The
complainant alleges that he did not have access to regular medical treatment and that he was
not seen by a doctor during the first days of his detention or the period of solitary confinement.
He also submits that the failure of the Moroccan authorities to put in place an effective system
to prevent torture constitutes a violation of article 2 of the Convention.
6 A copy of the complaints of ill-treatment addressed by his representative to the Minister of Justice on
9 March 2018 and to the public prosecutor and the Crown Prosecutor General on 19 March 2018 is
annexed to the communication.
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3.3
With regard to article 11 of the Convention, the facts show that the State party did not
keep under systematic review arrangements for the custody and treatment of persons
subjected to any form of arrest, detention or imprisonment in any territory under its
jurisdiction. The detention conditions in Morocco, malnutrition, ill-treatment, abuse and lack
of an effective complaint mechanism for detainees have been described in various reports by
international bodies.7
3.4
The complainant alleges that the State party has failed to fulfil its obligations under
articles 12 and 13 of the Convention. He states that, on 12 November 2010, he appeared,
bearing visible signs of torture, before the military investigating judge, who did not record
these facts or his allegations of torture or open an immediate investigation. In addition, the
military court did not take into account his allegations of torture when deciding on his
conviction. The complainant submits that, in its report on its 2013 mission to Morocco, the
Working Group on Arbitrary Detention highlighted a failure to investigate the allegations of
torture of detainees in the context of the events surrounding the dismantling of the Gdeim
Izik camp.8
3.5
The complainant argues that the medical examination ordered by the court of appeal
many years after the alleged events does not amount to opening an official investigation into
his allegations of torture, which would have involved recording his statements in separate
proceedings. Court-appointed doctors examined the defendants in 2017, almost seven years
after the alleged torture. The complainant states that his medical report and those of his co-
defendants were submitted to four French and Spanish doctors, who provided second
opinions concluding that the Istanbul Protocol had not been respected.9 These experts thus
demonstrated that, despite the a priori conclusion of the expert reports that no torture had
taken place, the allegations of torture of detainees remain highly credible.
3.6
The complainant further alleges that the absence of an investigation prevented him
from receiving rehabilitation, reparation, compensation, support and guarantees of non-
repetition of the offence, in violation of article 14 of the Convention.
3.7
The complainant has consistently stated before the national authorities that his
conviction was based solely on confessions obtained under torture, even though he claims
that he did not confess to anything but was forced, while he was handcuffed and blindfolded,
to sign a document whose contents were unknown to him. By failing to carry out any checks,
and by using such declarations in the judicial proceedings against the complainant, the State
party manifestly violated its obligations under article 15 of the Convention.
State party’s observations on admissibility and the merits
4.1
On 27 June 2019, the State party contested the admissibility of the complaint on the
grounds of non-exhaustion of domestic remedies and abuse of the right to file a complaint.
4.2
The State party indicates that, following the investigations undertaken, the
complainant, like other persons involved in the case related to the dismantling of the Gdeim
7 See, for example, A/HRC/22/53/Add.2.
8 A/HRC/27/48/Add.5, para. 68.
9 The complainant submits a document containing the conclusions of the second opinions given by Drs.
F.D., S.U., S.R. and P.H. The date on which these second opinions were provided is not indicated.
The doctors considered that the findings of the 15 medical reports lacked credibility and did not meet
the requirements of the Istanbul Protocol because of: non-compliance with the principles of
independence and impartiality of the experts, since they were appointed by the court, whose role was
to try the detainees; a failure to take into account the time elapsed between the dates of the alleged
torture and those of the medical examinations; the fact that the examinations were carried out in the
correctional facility, rather than in neutral venues, with only the medical expert present; the extremely
short duration of the interviews; the inadequacy of the evaluation of trauma and psychological harm;
the summary, superficial and sometimes erroneous nature of the expert reports (some paragraphs were
copied and pasted); a lack of analysis of the detainees’ medical files in the prisons; the failure to
establish an independent commission of enquiry despite the existence of a pattern of torture; and the
fact that the findings of the 15 expert reports were identical, with no indication of the degree of
compatibility (specific, typical, highly compatible, compatible, incompatible) of the injuries observed
with the abuse reported.
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Izik camp, was brought before the military court, in accordance with Moroccan criminal law,
on account of the nature and seriousness of the acts committed against law enforcement
officials, in particular the killing of 10 members of the Royal Gendarmerie, the Directorate-
General of National Security and the Auxiliary Forces, and one member of the Directorate-
General of Civil Protection.
4.3
The persons concerned were prosecuted and sentenced by the military court on 17
February 2013, in strict compliance with guarantees of due process. The complainant was
sentenced to 30 years’ imprisonment on charges of forming a criminal gang and violence
against law enforcement officials intentionally causing death. On 27 July 2016, the military
court’s decision was quashed, and the case was referred to a civil court: the Rabat court of
appeal.10 The trial took place before the Criminal Chamber from 26 December 2016 to 19
July 2017. Interpretation into Hassānīya, a dialect spoken in southern Morocco, was provided.
In addition, interpretation into English, French and Spanish was provided for the foreign
observers present. The Court ensured that the evidence was debated in an adversarial hearing
in the presence of the defendants, who were assisted by their legal representatives.
Observance of all the aforementioned guarantees was confirmed by reports of the National
Human Rights Council.
4.4
On 19 July 2017, the Rabat court of appeal confirmed the charges and the resulting
sentence against the complainant, namely 30 years’ imprisonment. On 29 September 2017,
the defendants, including the complainant, submitted an appeal in cassation. The State party
points out that the court has not yet ruled on the matter and that, in accordance with the
Committee’s jurisprudence, mere doubts as to the effectiveness of domestic judicial remedies
do not absolve the complainant from the obligation to exhaust them, including, where
applicable, the remedy of cassation.
4.5
The State party adds that the complaint was filed almost eight years after the alleged
events took place. It expresses its surprise as to the real reasons why the complainant waited
all these years.
4.6
On the request for interim measures, the State party indicates that the complainant has
been placed in a single room in a clinic and that, contrary to his allegations, he is not subject
to any measure or form of solitary confinement. He has the right to regular visits and
telephone calls and is receiving appropriate medical care. The State party strongly contests
the complainant’s allegations of physical and psychological abuse.
4.7
In its comments dated 20 December 2019, the State party notes with regret that a
common link between this communication and the other cases relating to the dismantling of
the Gdeim Izik camp that are before the Committee is that they seek, under the cloak of
numerous allegations of human rights abuses, to put forward purely political demands that
fall outside the scope of the Committee’s mandate.
4.8
It states that the Gdeim Izik camp was dismantled in accordance with relevant legal
and regulatory provisions. In the course of the operation, the law enforcement authorities
showed professionalism and extreme restraint, despite the attacks and deliberate
provocations.11
4.9
The State party reiterates that the communication is inadmissible because the
complainant’s appeal to the Court of Cassation is still pending. In the event of a cassation
decision and referral by the Court, all the substantive and procedural issues and, inevitably,
the matter of the application of the law (including, in the present case, the weight of the
confessions allegedly obtained under torture, the process for conducting forensic
examinations, and so on) may be raised.
10 In its comments of 20 December 2019, the State party indicates that, following recommendations by
several organizations and mechanisms, including the Committee, it amended its legislation to ensure
that acts committed by civilians are excluded from military jurisdiction (Act No. 108-13 of 10
December 2014 on military justice).
11 The State party attaches a list of the law enforcement officers who lost their lives along with photos
illustrating the atrocities perpetrated in the Gdeim Izik camp and the public order disturbances that
occurred in Laâyoune on 8 November 2010.
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4.10
The State party recalls that, in accordance with articles 73, 74, 88 and 134 of the Code
of Criminal Procedure, the prosecutor or investigating judge must order a medical
examination of a person brought before them if that person requests it or if they find signs of
torture or ill-treatment. In this case, no request for a medical examination was made by the
complainant or his defence, and no signs of torture or ill-treatment were found during his
presentation before the military investigating judge in Rabat.12
4.11
Regarding the allegations of torture, the State party indicates that all persons have
several judicial and extrajudicial remedies available to them with respect to filing a complaint
with the public prosecutor’s office, the Prison Service – if they are in detention – or the
National Human Rights Council, which has powers to monitor places of detention.13
4.12
The State party observes that the issue of the allegations of torture was raised by the
defence during the civil proceedings and that the criminal chamber of the Rabat court of
appeal promptly granted the defence’s request for a medical examination of the complainant.
The court appointed a commission chaired by three doctors, including a specialist in
traumatology, orthopaedics and psychiatry. They carried out an expert examination and
medical tests in accordance with the principles and guidelines of the Istanbul Protocol. The
expert medical examination conducted on 16 February and 13 March 2017 involved
interviews regarding the complainant’s allegations, apparent symptoms and medical history,
a clinical physical examination, additional examinations, analyses of the medical file and the
custody register and a forensic interview and study. The expert examination concluded that
the marks and complications suffered by the complainant were not the result of torture or ill-
treatment. It was therefore established that the allegations of torture were unfounded.14
4.13
The State party refutes the complainant’s claim that the forensic examinations were
entrusted to three Moroccan forensic doctors who were not trained in the Istanbul Protocol
and did not provide adequate guarantees of independence. On the contrary, the State party
submits that everything possible was done to ensure that the forensic examinations were
carried out by highly qualified, impartial and independent experts who were admitted to the
Moroccan courts and were, for that matter, subject to the Court’s supervision.
4.14
The State party notes that both the complainant’s mother and his wife filed complaints
with the Prison Service about poor conditions of detention, on 30 March and 10 May 2018,
and that investigations by the General Delegation for Prison Administration and
Reintegration concluded that all the allegations were unfounded.
4.15
The State party reports that the complainant’s conditions of detention are regularly
monitored by the National Human Rights Council. The complainant was visited by a
delegation from the Council on 28 May 2019 and by the Tan-Tan-Guelmim Regional Human
Rights Commission on 18 July 2019. He was also visited by the Deputy Crown Prosecutor
at Tifelt Court of First Instance on 21 March and 28 May 2019.
4.16
The State party adds that the complainant is currently detained in Tifelt 2 category B
prison and enjoys all his rights in accordance with international standards. He has been placed
in the infirmary in an individual cell that meets health and safety standards and has not been
placed in solitary confinement as alleged in his communication. He receives appropriate
medical attention. Since his incarceration in 2010, he has attended 24 outpatient consultations
and 275 inpatient consultations, including 39 since his transfer to Tifelt 2 prison. He has twice
refused to go to the public hospital, where appointments had been scheduled, in protest
against the wearing of prison uniform. He also enjoys the rights to receive visits and
communicate with his family by telephone. He is given his meals and is entitled to shower
according to a schedule and take a daily walk. He is in his second year of studying economics
and management at the Guelmim Faculty of Economics.
12 The State party refers to the preliminary hearing reports drawn up by the investigating judge of the
military court on 12 November 2010 and 25 February 2011.
13 Act No. 76-15 on the reorganization of the Council broadened its remit, in particular by designating it
the national preventive mechanism pursuant to the Optional Protocol to the Convention, to which
Morocco acceded in 2014.
14 The State party attaches a copy of the report of the expert medical examinations carried out on 16
February and 13 March 2017 and the doctors’ curricula vitae.
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Comments by the complainant and the State party on the request for interim
measures
Complainant
5.
In his communication of 28 May 2020, the complainant submits that the State party
has never implemented the interim measures. He does not receive medical care and his health
continues to deteriorate. He remains in prolonged solitary confinement in Tifelt 2 prison.
State party
6.
In its observations of 7 July 2020, the State party indicates that the complainant, who
is incarcerated in the Tifelt 2 prison, enjoys all his rights as a prisoner and has never been
subjected to solitary confinement, contrary to his allegations. He is detained in completely
normal conditions and has the right to take walks, the right to family visits, which has been
preserved despite the interim restrictive measures related to the COVID-19 pandemic, and
the right to daily telephone calls, including on Saturdays and Sundays. The State party further
reiterates that the complainant is receiving appropriate medical care and that the results of
the laboratory analyses carried out do not point to any abnormalities.
Complainant
7.1
In his comments dated 8 October 2020, the complainant states that, on 21 September
2020, he was transferred to Aït Melloul prison. He says that he cannot leave his cell, that he
is therefore confined there 24 hours a day and that the cell does not meet minimum hygiene
standards. The complainant explains that he is in a severe state of physical and psychological
distress and that, in view of this situation, he has decided to go on a hunger strike the
following week. He asks the State party to explain this disturbing information, since these
measures are, as they stand, tantamount to reprisals.
7.2
In his comments dated 13 October 2020, the complainant clarifies that he had
requested interim measures because he and his co-defendants have been subjected to reprisals
following the 2017 judgment of the Rabat court of appeal and the Committee’s decision in
Asfari v. Morocco.15 He states that he had never been placed in solitary confinement prior to
2017 and that this confinement is ongoing, with no investigation having been opened. He
argues that his detention regime amounts to solitary confinement, even though it has not been
categorized as such under Moroccan law. He explains that, in October 2019, after his
complaint was lodged with the Committee, he was placed in the Tifelt 2 prison infirmary.
While there, he could hear the other patients shouting day and night. He explains that, within
the prison, he suffers from discrimination and racist insults.
Complainant’s comments on the State party’s observations on admissibility and the
merits
8.1
On 12 October 2020, the complainant submitted his comments on the State party’s
observations. He argues that the communication is admissible, pointing out that the fact that
more than eight years having elapsed since the alleged events without any investigation
having been carried out by the State party is in itself evidence that domestic remedies are not
effective.
8.2
The complainant maintains that the appeal that is still before the Court of Cassation
cannot be considered an effective remedy because the Court rules only on matters of law and
on the basis of the case before it, namely the acts of which the complainant is accused. The
Court cannot review a final decision of a court of first instance and is not competent to
determine whether the complainant’s confession was obtained as a result of torture or to order
an investigation into allegations of torture.
8.3
The complainant reiterates that he has brought his treatment to the attention of the
Moroccan authorities on numerous occasions and, as a last resort, to the attention of the
Committee, without any investigation having been opened to date. He recalls that
15 CAT/C/59/D/606/2014.
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prosecutions are the sole preserve of the public prosecutor’s office, which has still not
exercised its powers to institute criminal proceedings.
8.4
As to the merits, the complainant recalls that his complaint concerns the circumstances
of his arrest, his time in police custody and the ill-treatment to which he was subjected, and
not the reasons for his conviction, since this is not a matter for the Committee. He considers
that the State party appears to be deliberately confusing the criminal case with the failure to
open an investigation into his allegations of torture.
8.5
The complainant observes that the State party merely asserts that he signed his
statements voluntarily. In so doing, it maintains its interpretation of article 291 of the Code
of Criminal Procedure, according to which the reports drawn up by the criminal investigation
department constitute prima facie evidence. Indeed, the only supporting document submitted
by the State party is the record of the confession, which the complainant states was extracted
under duress. The State party continues to try to reverse the burden of proof by forcing the
complainant to prove that he was not tortured.
8.6
With regard to the State party’s argument that the complainant could have had
recourse to the National Human Rights Council by filing a complaint, he points out that the
Council can take up the matter on its own initiative and that, although it was aware of the
situation of the complainant and his co-defendants, it never did so. He submits that the
Council cannot be considered a judicial mechanism or an adequate mechanism for
investigating allegations of torture.
8.7
The complainant observes that the State party does not indicate that he received any
medical attention at all during the period of the acts reported in his complaint. The State
party’s observations are all the more worrying since it seems to believe that the complainant
is in perfect health, even though he has had many medical consultations. Besides, it is
unlikely that a person in “perfect health” would have to spend several weeks in the infirmary,
for which no justification is given. Furthermore, the State party does not prove that he was
provided with prompt and independent legal and medical assistance or that he was able to
contact his family immediately. The complainant reiterates his claim that the State party
violated his rights under articles 2, 11, 12, 13, 15 and 16 of the Convention.
Additional observations by the complainant and the State party on the request for
interim measures
State party
9.1
In its comments dated 11 December 2020, the State party reiterates that the
complainant’s claims are unfounded and categorically denounces his approach of
deliberately and continuously embroidering a series of false allegations. It repeats its
observations of 27 June 2019, 20 December 2019 and 7 July 2020. It states that the
complainant was transferred to the local Aït Melloul 1 prison on 19 September 2020 and
placed in an individual cell that meets international standards and that this was in no way the
result of a solitary confinement measure. It adds that the complainant had 17 telephone calls
with his relatives between 21 September and 26 October 2020. It reiterates that the
complainant has access to medical care and that the question of whether he can consult a
doctor of his choice is inherently inappropriate in view of the nature and functioning of
prisons.
9.2
The State party emphasizes that the complainant underwent a medical examination on
21 and 22 September 2020 and is in good general health. It rejects the allegation that, from 5
May 2018 to 19 September 2020, the complainant was placed in a single room in the Tifelt
2 prison infirmary for close medical follow-up immediately after submitting his complaint to
the Committee. It states that the complainant did not declare a hunger strike on the above-
mentioned dates. The complainant was received by the Governor of Aït Melloul prison on 7
October 2020 and was able to make a number of requests. The State party points out that the
complainant has never been subjected to reprisals or any other form of intimidation and that
there is no justification for investigating the matter on the basis of the information submitted.
It also notes that the complainant is not currently eligible for alternatives to detention.
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Complainant
10.
In his comments dated 20 December 2020, the complainant states that he has been in
solitary confinement at Aït Melloul 1 prison for 25 days, that he has not been able to contact
his counsel and that he continues to call his family in the presence of prison officials. On 9
April 2021, the complainant reported that he was likely to have to undergo a medical
operation.
Additional observations by the State party
11.1
On 19 March 2021, the State party submitted additional observations. It points out
that, on 25 November 2020, the Court of Cassation dismissed the appeal lodged by the
complainant. It again deplores the complainant’s manifest intention to use his allegations to
exonerate himself from the serious offences of which he was convicted after a fair trial.
11.2
Regarding the complainant’s contention that the medical examination ordered by the
court of appeal does not satisfy the State’s obligation to conduct an investigation, the State
party indicates that the complainant seems to have deliberately forgotten that an examination
is ordered only if the defence requests one on the basis of the relevant provisions of the Code
of Criminal Procedure or if the judge considers there to be reasonable grounds for one. It
reaffirms that the commission was impartial, competent and professional.
11.3
The State party reiterates that the complainant has never been subjected to solitary
confinement in any of the prisons in which he has been held and that his imprisonment has
always been in line with relevant international standards. With regard to the concern
expressed about the number of medical consultations, it underlines that this number, which
the complainant considers to be high, in itself demonstrates the willingness of the General
Delegation for Prison Administration and Reintegration to ensure that prisoners have optimal
access to medical care. As to the right to receive visits, it points out that, in order to combat
the spread of COVID-19 in prisons, the General Delegation had to suspend all visits to
prisons from March 2020. The complainant has regular telephone conversations twice per
week with his mother and his wife. Lawyers’ visits were still allowed despite the measures
related to the pandemic, but no lawyer for the complainant went to meet him.
11.4
Moreover, the State party indicates that the National Human Rights Council is a
constitutional institution for the protection and promotion of human rights that was created
in 1990, has been working in accordance with the principles relating to the status of national
institutions for the promotion and protection of human rights (the Paris Principles) since 2001
and has been accredited with A status for more than 20 years. It claims that the Council has
never received a complaint from the complainant nor been informed of any possible acts of
torture or ill-treatment against him, which would enable it to take up the case on its own
initiative.
Issues and proceedings before the Committee
Consideration of admissibility
12.1
Before considering any complaint contained in a communication, the Committee must
decide whether the complaint is admissible under article 22 of the Convention. The
Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention,
that the same matter has not been and is not being examined under another procedure of
international investigation or settlement.
12.2
The Committee notes that the State party has contested the admissibility of the
complaint on the grounds of non-exhaustion of domestic remedies. In this regard, the
Committee observes that the State party had initially indicated that the appeal before the
Court of Cassation, which was lodged by the complainant and his co-defendants on 29
September 2017, was still pending and that domestic remedies had thus not been exhausted.
However, it also takes note of the information from the State party that, on 25 November
2020, the Court of Cassation ultimately rejected the complainant’s appeal. The Committee
concludes that the State party’s challenge to the admissibility of the complaint is no longer
relevant, since a judgment has already been handed down on the appeal before the Court of
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GE.22-01047
11
Cassation and it is therefore no longer necessary for the Committee to rule on the
effectiveness of this remedy in the present case.
12.3
With regard to the State party’s allegation that the present complaint constitutes an
abuse of the right to submit a complaint, the Committee recalls that neither the Convention
nor its rules of procedure establish a time limit for submitting a complaint. In any event, a
period of one year and seven months elapsed between the handing down of the judgment of
the Rabat court of appeal and the submission of the complaint to the Committee, which in
this case cannot serve as grounds for concluding that the right to submit a complaint is being
abused.
12.4
With reference to article 22 (4) of the Convention and rule 111 of the Committee’s
rules of procedure, the Committee finds no other obstacle to the admissibility of the
complaint and proceeds with its consideration of the merits.
Consideration of the merits
13.1
In accordance with article 22 (4) of the Convention, the Committee has considered
the communication in the light of all the information made available to it by the parties.
13.2
The Committee notes the complainant’s claim that the physical abuse he suffered
during his arrest and his interrogation at the gendarmerie of Laâyoune and the treatment to
which he was subjected during his transfer by plane constitute acts of torture under article 1
of the Convention. The Committee also notes the State party’s argument that, in view of the
allegations of torture made by the complainant and his co-defendants in the civil proceedings,
the Rabat court of appeal appointed three doctors to carry out a medical examination on 16
February and 13 March 2017. The Committee notes that the medical evaluation concluded
that “his current symptoms and the objective findings of our examination are not specific to
the various alleged methods of torture”. The Committee observes the State party’s argument
that the medical examination demonstrated that the marks and complications suffered by the
complainant were not the result of torture or ill-treatment. Nevertheless, the Committee also
notes the complainant’s allegation that the examination was not conducted in accordance
with the Istanbul Protocol. In this regard, the Committee notes that the findings of the medical
examinations of the complainant and his co-defendants were presented to international
doctors, who provided second opinions concluding that the Istanbul Protocol had not been
respected, in particular owing to a failure to comply with the principles of independence and
impartiality of the experts who carried out the examination, the very short duration of the
interviews, the inadequacy of the evaluation of trauma and psychological harm and the fact
that the findings of all the expert reports were identical, with no indication of the degree of
compatibility of the injuries observed with the abuse reported. The Committee notes that the
State party attests to the impartiality, competence and professionalism of the experts.
However, it considers that the State party does not provide any relevant explanation to
confirm that the medical examination was carried out in accordance with the Istanbul
Protocol as part of an official investigation into the complainant’s allegations of torture. The
Committee further notes that the medical examination was carried out more than six years
after the alleged events and that the time elapsed between the two does not seem to have been
taken into account. The Committee recalls its jurisprudence according to which any person
deprived of his or her liberty must be given access to prompt and independent legal and
medical assistance and must be able to contact his or her family in order to prevent torture.16
Taking account of the complainant’s assertion that he did not have access to any of these
safeguards during his pretrial detention, and in the absence of convincing information from
the State party challenging these allegations, the Committee considers that the physical ill-
treatment and injuries that the complainant says that he suffered during his arrest,
interrogation and detention constitute torture within the meaning of article 1 of the
Convention.17
13.3
The Committee considers that all the treatment that the complainant alleges was
inflicted on him during his detention, that is: (a) being suspended upside down and given
16 General comment No. 2 (2007) on the implementation of article 2 by States parties.
17 Asfari v. Morocco, para. 13.2.
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electric shocks, repeatedly beaten and insulted; (b) the insanitary conditions of his various
detention cells; (c) the long periods of solitary confinement without being able to be seen by
a doctor of his choice; and (d) the restricted access to his lawyer and family; also constitutes
a violation of article 1 of the Convention. Accordingly, the Committee does not consider it
necessary to examine separately the claims under article 16 of the Convention.18
13.4
The complainant also invokes article 2 (1) of the Convention, pursuant to which the
State party should have taken effective legislative, administrative, judicial or other measures
to prevent acts of torture in any territory under its jurisdiction. The Committee recalls its
concluding observations on the fourth periodic report of Morocco, in which it expressed its
concern about events in Western Sahara and allegations of, inter alia, torture, ill-treatment
and the extraction of confessions under torture,19 and called on the State party to take urgent
and substantive steps to prevent all acts of torture and ill-treatment, and to announce a policy
that would produce measurable progress towards the eradication of all torture and ill-
treatment by State officials. In the present case, the Committee notes the complainant’s
allegations about the treatment inflicted on him by State officials while he was in police
custody, without being able to contact his family or have access to counsel or a doctor. The
State authorities did not take any steps to investigate the acts of torture suffered by the
complainant and, if appropriate, punish the perpetrators, despite his visible signs of torture
and the complaints he submitted in this regard to the military court. In view of the above, the
Committee finds a violation of article 2 (1), read in conjunction with article 1, of the
Convention.20
13.5
According to the complainant, the State party violated article 11 of the Convention
because it failed to properly monitor the treatment he received during his detention. The
Committee notes the complainant’s allegations that he was subjected to ill-treatment during
his detention, had no access to a doctor of his choice despite his poor state of health, was kept
in solitary confinement and was deprived of regular visits from his family. The Committee
notes that the complainant repeatedly complained about his conditions of detention without
having effective remedies to challenge the ill-treatment. The Committee recalls its
concluding observations on the fourth periodic report of Morocco, in which it expressed
regret at the lack of information on the practical application of basic safeguards such as
examination by an independent physician and notification of the family.21 In the present case,
the Committee notes that the State party has provided general information on the
complainant’s conditions of detention and his medical care without giving relevant
explanations to demonstrate that it carried out the necessary monitoring. Moreover, the
Committee notes that, aside from indicating the number of medical consultations that the
complainant allegedly had, the State party has not provided any explanation of his conditions
of detention during the period between November 2010 and February 2019, when his
complaint was submitted to the Committee. In the absence of any information from the State
party to demonstrate that the complainant was indeed placed under its supervision throughout
his detention, and of any evidence that his complaints were handled properly and that he
received effective medical care, the Committee concludes that there was a violation of article
11 of the Convention.22
13.6
The Committee must also decide whether the fact that no investigation has been
opened into the allegations of torture that the complainant submitted to the judicial authorities
constitutes a violation by the State party of its obligations under article 12 of the Convention.
The Committee takes note of the complainant’s allegations that he appeared before the
military investigating judge on 12 November 2010 bearing visible signs of torture and that
he reported the torture to the judge, but no investigation was carried out. The Committee
notes the State party’s argument that the complainant did not raise the allegations of torture
with the competent authorities. It also notes that, after the case was referred to the Rabat court
of appeal and the complainant and his co-defendants made allegations of torture, the
18 Ramiro Ramírez Martínez et al. v. Mexico (CAT/C/55/D/500/2012), para. 17.4.
19 CAT/C/MAR/CO/4, para. 12. See also CCPR/C/MAR/CO/6, paras. 23 and 24.
20 See, for example, Ndarisigaranye v. Burundi (CAT/C/62/D/493/2012 and
CAT/C/62/D/493/2012/Corr.1), para. 8.3; and E.N. v. Burundi (CAT/C/56/D/578/2013), para. 7.5.
21 CAT/C/MAR/CO/4, para. 7.
22 E.N. v. Burundi, para. 7.6.
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complainant underwent a medical examination ordered by the court. In this connection, it
notes the complainant’s claims that the medical examinations ordered by the court were not
impartial and were not carried out as part of an investigation into the torture he suffered, as
they ought to have been pursuant to the Istanbul Protocol. The Committee reiterates that,
while it notes that the State party attests to the impartiality, competence and professionalism
of the experts who conducted the medical examinations, it considers that the State party does
not provide any relevant explanation to demonstrate that the examination was carried out in
accordance with the Istanbul Protocol, as part of an official investigation into the
complainant’s allegations of torture. The Committee further notes that the State party has far
exceeded the reasonable length of time for dispensing justice in the complainant’s case and
that, 11 years after the events and the submission of the first allegations of torture, no
investigation in accordance with the Istanbul Protocol has been carried out. In the light of the
above, the Committee considers that the absence of any investigation into the allegations of
torture in the complainant’s case is incompatible with the State party’s obligation under
article 12 of the Convention to ensure that its competent authorities proceed to a prompt and
impartial investigation wherever there is reasonable ground to believe that an act of torture
has been committed.23
13.7
The Committee further notes the complainant’s claim that the State party has also
failed to comply with its obligation under article 13 of the Convention to ensure his right to
lodge a complaint, which implies that the authorities must provide a satisfactory response to
such a complaint by launching a prompt and impartial investigation.24 The Committee notes
that article 13 does not require the formal lodging of a complaint of torture under the
procedure laid down in national law, nor does it require an express statement of intention to
bring a criminal case. It is enough for the victim simply to bring the facts to the attention of
an authority of the State for the State to be obliged to consider it as a tacit but unequivocal
expression of the victim’s wish that the facts should be promptly and impartially investigated,
as required by this provision of the Convention.25 In view of the foregoing, the Committee
concludes that the facts of the present case also constitute a violation of article 13 of the
Convention.
13.8
Regarding the complainant’s allegations under article 14 of the Convention, the
Committee recalls that this provision recognizes the right of the victim of an act of torture to
fair and adequate compensation and requires States parties to ensure that he or she obtains
redress for all injuries suffered. Redress must cover all the harm suffered and encompass
restitution, compensation and guarantees of non-repetition, taking into account the
circumstances of each individual case. 26 In the present case, the Committee notes the
complainant’s allegation that the ill-treatment he suffered had a disastrous impact on his
mental and physical well-being. The failure of the military investigating judge to order an
investigation into the allegations of torture and the fact that the medical examination ordered
by the court of appeal was not carried out in accordance with the Istanbul Protocol and as
part of such an investigation prevented the complainant from receiving rehabilitation,
compensation, support and guarantees of non-repetition of the crime. The Committee
therefore considers that the failure to conduct a prompt and impartial investigation denied the
complainant any possibility of exercising his right to redress, in violation of article 14 of the
Convention.27
13.9
The complainant also claims to be a victim of a violation of article 15 of the
Convention because he was convicted on the basis of confessions obtained through torture.
He claims to have confessed to nothing but to have been forced, while handcuffed and
blindfolded, to sign a document whose contents were unknown to him. The Committee
recalls that the general nature of the provisions of article 15 derives from the absolute nature
of the prohibition of torture and therefore implies an obligation for any State party to verify
that statements included in proceedings under its jurisdiction were not obtained through
23 Asfari v. Morocco, para. 13.4.
24 Bendib v. Algeria (CAT/C/51/D/376/2009), para. 6.6.
25 Parot v. Spain (CAT/C/14/D/6/1990), para. 10.4; Blanco Abad v. Spain (CAT/C/20/D/59/1996), para.
8.6; and Ltaief v. Tunisia (CAT/C/31/D/189/2001), para. 10.6.
26 Bendib v. Algeria, para. 6.7.
27 Niyonzima v. Burundi (CAT/C/53/D/514/2012), para. 8.6; and Asfari v. Morocco, para. 13.6.
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torture.28 In the present case, the Committee notes that, according to the complainant, the
statements that he signed as a result of torture served as a basis for his prosecution and
conviction, and that he questioned the probative value of the confession signed under torture
at various stages of the proceedings against him, without success. The Committee notes that
the court of appeal did not give due consideration to the allegations of torture when
sentencing the complainant on the basis of his confession. By failing to verify the substance
of the complainant’s claims other than through the medical examination ordered by the court
of appeal, which was not carried out in accordance with the Istanbul Protocol, and by using
such statements in the judicial proceedings against the complainant, the State party
manifestly violated its obligations under article 15 of the Convention. The Committee recalls
that, in its concluding observations on the fourth periodic report of Morocco,29 it expressed
concern about the fact that, under the State party’s current system of investigation,
confessions are commonly used as evidence for purposes of prosecution and conviction, thus
creating conditions that may provide more scope for the torture and ill-treatment of
suspects.30
14.
The Committee, acting under article 22 (7) of the Convention, decides that the facts
before it reveal a violation by the State party of article 2 (1), read in conjunction with article
1, and articles 11 to 15 of the Convention.
15.
The Committee urges the State party to: (a) provide the complainant with fair and
adequate compensation, including the means for the fullest rehabilitation possible; (b) initiate
a thorough and impartial investigation into the incidents in question, in full conformity with
the guidelines of the Istanbul Protocol, with a view to bringing those responsible for the
victim’s treatment to justice; (c) return the complainant to the group regime in a prison closer
to his family; (d) conduct a prompt and effective investigation into the complainant’s
allegations of reprisals and refrain from any form of pressure, intimidation or reprisals likely
to harm the physical and moral integrity of the complainant, which would otherwise
constitute a violation of the State party’s obligations under the Convention to cooperate with
the Committee in good faith in the implementation of the provisions of the Convention; and
(e) enable the complainant to receive visits from his family, his counsel and a doctor of his
choice in prison.
16.
Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party
to inform it, within 90 days from the date of transmittal of the present decision, of the steps
it has taken to respond to the above observations.
28 P.E. v. France (CAT/C/29/D/193/2001), para. 6.3; and Ktiti v. Morocco (CAT/C/46/D/419/2010),
para. 8.8.
29 CAT/C/MAR/CO/4, para. 17.
30 Asfari v. Morocco, para. 13.8.