A/HRC/WGAD/2016/27

GE.16-23113 (E) 060217 070217

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-sixth session, 22-26 August 2016

Opinion No. 27/2016 concerning Abdelkader Belliraj (Morocco)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its

decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30

September 2010. The mandate was extended for a further three years in resolution 24/7 of

26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 21 June 2016 the

Working Group transmitted to the Government of Morocco a communication concerning

Abdelkader Belliraj. The Government replied to the communication on 20 August 2016.

The State is a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

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General Assembly

Distr.: General

29 December 2016

English

Original: French

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(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Mr. Belliraj, born in 1957, habitually resides with his family in Evergem, Belgium.

5.

According to the source, Mr. Belliraj arrived in Morocco by air on 16 January 2008.

He was arrested without a warrant on 18 January 2008 on the public highway in Marrakech

by a group of plain-clothes police officers, who refused to inform him of the reasons for his

arrest.

6.

The source reports that Mr. Belliraj was then forced into an unmarked vehicle and

blindfolded, before being taken to a destination unknown to him. According to the

information submitted, it appears that the place was four hours’ drive away and might have

been a military barracks, as the national anthem was played there every morning.

7.

The source alleges that Mr. Belliraj was detained incommunicado for 28 days and

that, during this period, he was subjected to acts of torture. The source reports that Mr.

Belliraj was regularly beaten, suspended for long periods of time, threatened with death,

deprived of food and placed in isolation in a tiny cell.

8.

Following this ill-treatment, Mr. Belliraj was reportedly forced to sign documents

presented to him by the alleged perpetrators of the torture. These documents stated that he

admitted to having played a role in the murder of six individuals in Brussels between 1988

and 1989, including Dr. Joseph Wybran, then president of the Coordinating Committee of

Jewish Organizations of Belgium, and the rector of the Great Mosque of Brussels.

9.

The source alleges that Mr. Belliraj was formally transferred to the premises of the

criminal investigation department on 16 February 2008.

10.

On 19 January 2008, fearing that he had been the victim of an accident, his family

started looking for him in all the hospitals in the region. They also reported his

disappearance to the police, which apparently claimed to have no knowledge of what had

befallen him. The source mentions that it was during a press conference organized on 20

February 2008 by the Minister of the Interior, Chakib Benmoussa, that Mr. Belliraj’s wife

learned he had been arrested.

11.

During the press conference, the Minister is said to have announced “the dismantling

of a terrorist network established in 1992, with ties to Al-Qaida and composed of radical

Islamists, which reportedly planned to conduct terrorist activities in Morocco”. In addition,

he described Mr. Belliraj as the head of the network of some 30 persons and falsely stated

that he had been arrested on 18 February 2008 on his arrival at Mohamed V airport in

Casablanca.

12.

The source reports that most of those arrested during this operation had no particular

ties to one another or to Mr. Belliraj. The source claims that the group included both

socialist party activists and members of the Islamist movement.

13.

According to the source, Mr. Belliraj was brought before the public prosecutor in

Salé without the presence of a lawyer on 27 February 2008, 40 days after his arrest. The

Crown Prosecutor at the Salé Court of First Instance then ordered his pretrial detention and

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requested the opening of a criminal investigation on charges of “threatening the internal

security of the State” and “formation of armed groups”.

14.

The source alleges that, on the same day, Mr. Belliraj was brought before an

investigating judge without the presence of a lawyer. He was accompanied by one of the

police officers who had participated in his questioning, who pushed him to confirm to the

judge the full content of his statement, failing which he would be returned to detention and

again subjected to torture. The judge did not consider it necessary to order a medical

examination or initiate an inquiry in spite of obvious signs of beatings and torture and the

accused man’s deplorable physical and psychological state.

15.

On 2 April 2008, during his second appearance before the investigating judge, Mr.

Belliraj had the assistance of a lawyer and challenged the content of the documents that had

been presented to him previously. He stated that he had been held incommunicado for

almost a month. In addition, he maintained that, during that period, he had been subjected

to acts of torture, following which he had been forced to sign the statement. The source

further claims that his lawyer denounced the falsification of the date of his actual arrest and

the presence of one of the perpetrators of the alleged acts of torture in the office of the

investigating judge on 27 February 2008 during Mr. Belliraj’s first appearance. He formally

requested that the officer in question be heard as a witness. Despite the seriousness of the

allegations, the source states that the investigating judge did not consider it necessary to

initiate an inquiry.

16.

On 16 October 2008, the “Belliraj Group” trial began. The source reports that 35

individuals were accused of “threatening the internal security of the State by forming armed

groups” and “establishing a gang with a view to committing acts of terrorism”, including

Mr. Belliraj, who was also charged with “voluntary homicide with premeditation”.

17.

The source submits that, during the trial, Mr. Belliraj declared that the confessions,

which constituted the only incriminating evidence against him, had been obtained through

torture and that there was no other material evidence on file. The source also states that the

other defendants claimed to have been subjected to torture and forced to sign confessions

after suffering ill-treatment.

18.

During the trial, the defence lawyers reportedly demonstrated that documents used

in the proceedings had been falsified. They pointed out that, in some cases, including that

of Mr. Belliraj, the date of the defendant’s arrest had been modified and that some

individuals had therefore been arrested earlier than the date indicated in the police report.

19.

Some of the defendants also claimed during the hearings that the police reports did

not reflect their actual statements. The judges did not consider it necessary, however, to

initiate an inquiry to ascertain the veracity of these allegations.

20.

The source reports that, on 28 July 2009, the day before the conclusion of the trial,

firearms allegedly belonging to the defendants were presented to the media. These weapons

were on open display in the courtroom and were not accompanied by a proper seizure

report. The source notes that no expert fingerprint or DNA assessment had been conducted

to establish a link with the defendants.

21.

According to information provided by the source, the “Belliraj” trial concluded on

29 July 2009 with the conviction of the 35 defendants, whose sentences ranged from 1 year

to life imprisonment; the court did not make any reference to the serious procedural

irregularities. The source notes that, at the conclusion of the trial, Mr. Belliraj was

sentenced to life imprisonment.

22.

The source states that, on 16 July 2010, the Rabat court of appeal upheld the verdict

handed down in first instance following a summary review. In June 2011, the court of

cassation rejected Mr. Belliraj’s appeal, rendering his sentence of life imprisonment final.

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23.

According to the information provided by the source, following Mr. Belliraj’s

conviction by the Moroccan courts, the widow of Dr. Wybran, who was murdered in

Brussels on 3 October 1989, requested the reopening of judicial proceedings in Belgium.

24.

The source alleges that, after investigating the conditions of Mr. Belliraj’s arrest,

detention and trial in Morocco, on 25 October 2013 the Office of the Federal Prosecutor of

Belgium requested that the case be dismissed on the grounds that the confessions relating to

the killings had been obtained under duress and were therefore unusable in an assize court.

25.

On 17 April 2015, the Brussels Court of First Instance in chambers recalled in an

order the position of the Office of the Federal Prosecutor, which considered the hypothesis

that Mr. Belliraj’s statements had been obtained under torture to be “plausible and

credible”.

26.

The source considers that this case falls within category I of the categories referred

to by the Working Group when considering cases submitted to it, since there is no legal

basis justifying the incommunicado detention of Mr. Belliraj or his conviction on the basis

of confessions obtained under torture. The source recalls that article 9 (1) of the

International Covenant on Civil and Political Rights explicitly provides that: “Everyone has

the right to liberty and security of person. No one shall be subjected to arbitrary arrest or

detention. No one shall be deprived of his liberty except on such grounds and in accordance

with such procedure as are established by law.” Mr. Belliraj, however, was arrested on 18

January 2008 without a warrant and without being informed of the charges against him. In

addition, the source asserts that he was prevented from contacting his family, was denied

access to a lawyer and was not brought before a judge until 40 days after his arrest. Held

incommunicado until 16 February 2008, he was not allowed any legal remedy to challenge

the lawfulness of his detention and was deliberately denied the protection of the law. He

was provided with the services of a lawyer only during his second appearance before the

investigating judge, on 2 April 2008.

27.

The source therefore considers that, for almost two and a half months, that is, from

the date of his arrest, 18 January 2008, to the day when he was allowed to receive

assistance from a lawyer for the first time, 2 April 2008, Mr. Belliraj’s detention was not

conducted in accordance with the procedure established under Moroccan law, in this case

Act No. 03-03 on combating terrorism, which provides for a supervised 30-minute meeting

between the suspect and his or her lawyer during the period of police custody and sets the

maximum duration of such deprivation of liberty at 12 days.

28.

In addition, the source points out that, under article 293 of the Moroccan Code of

Criminal Procedure, any statement obtained by force or coercion is considered null, and

that Mr. Belliraj was sentenced to life imprisonment on the basis of confessions obtained

under torture. It highlights that, in this case, these confessions were admitted in the absence

of any investigation into the allegations they contained.

29.

The source submits that, despite the obvious signs of abuse suffered by Mr. Belliraj

during custody, neither the Crown Prosecutor nor the investigating judge ordered a medical

examination as required under article 74 (8) and article 134 (5) of the Moroccan Code of

Criminal Procedure.

30.

The source considers that this case falls within category III of the categories referred

to by the Working Group when considering cases submitted to it, since Mr. Belliraj’s

deprivation of liberty constitutes a violation of the international commitments entered into

by Morocco and, in particular, articles 9 and 14 of the International Covenant on Civil and

Political Rights. It adds that Mr. Belliraj’s deprivation of liberty is a clear violation of the

right to a fair trial and the guarantees established by those provisions, since he was arrested

without a warrant, held incommunicado for almost a month and subsequently continued to

be subjected to grave violations of his right to a fair trial.

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31.

The source recalls that article 14 (3) and article 9 (2) and (3) of the International

Covenant on Civil and Political Rights guarantee the right of anyone arrested or accused of

having committed a criminal offence to be informed promptly of the reasons for their arrest

and the charges against them. However, at the time of his arrest, Mr. Belliraj was not shown

an arrest warrant or informed of the reasons for his arrest. Furthermore, article 14 of the

Covenant guarantees the right of the arrested person to “communicate with counsel of his

own choosing”, whereas, in the present case, Mr. Belliraj was held incommunicado and

questioned several times without the presence of a lawyer. He was not able to communicate

with a lawyer until 40 days after his arrest.

32.

Furthermore, States parties to the International Covenant on Civil and Political

Rights must ensure the right of all detainees to challenge their detention before a judicial

authority and under no circumstances may they compel them to incriminate themselves.

The source alleges that there is no doubt that Mr. Belliraj was forced to testify against

himself and to confess guilt against his will, having been made to sign a confession under

threat of torture. It also recalls that the court relied exclusively on that confession to

sentence Mr. Belliraj to life imprisonment, despite the fact that Mr. Belliraj had disavowed

all of the statements he had purportedly made to the police and stated that he was forced to

sign them without reviewing them.

33.

The source adds that the above facts constitute a violation of article 15 of the

Convention against Torture, which provides that “each State party shall ensure that any

statement which is established to have been made as a result of torture shall not be invoked

as evidence in any proceedings”. It recalls that, in the present case, the statement obtained

under torture was not only invoked as evidence but constituted the main evidence used to

sentence Mr. Belliraj to life imprisonment.

Response from the Government

34.

The Government of Morocco duly responded to the communication transmitted to it.

The reply was received by the secretariat on 20 August 2016.

35.

In its reply, the Government merely denied the allegations of violations without

providing any evidence in support of this denial. The Government does not contest Mr.

Belliraj’s arrest or continued detention.

Discussion

36.

In the present case, the source presented coherent facts that are, in principle,

credible, and the source itself is reliable. These facts are corroborated by the Belgian

judicial document introduced as evidence by the source (order of the Brussels Francophone

Court of First Instance in chambers, 17 April 2015). It was therefore up to the Government

to refute the source’s allegations, providing relevant supporting evidence. In this case, the

Government could have produced the police reports, investigation documents, indictment,

judgments and other documents that it must have in its possession, such as the documents

related to the letters rogatory initiated by Belgium, to support its position. The Government

did not produce any such documents and merely denied the allegations. However, the

source submitted evidence that strengthened the credibility and reliability of its claims. The

Working Group therefore considers the facts to be as reported by the source.

37.

Mr. Belliraj has dual Belgian and Moroccan nationality. While on holiday in

Morocco, he was arrested on 18 January 2008 by plain-clothes police officers and held

incommunicado for 28 days, without ever being informed of the reasons for his arrest and

detention. During his detention, he was allegedly tortured several times until he was forced

to sign a statement that he was not allowed to read, without at any point having access to a

lawyer. Only on 20 February 2008 did his family learn, during a press conference by the

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Minister of the Interior, that he had been arrested and charged with heading a terrorist

network in operation since 1992 and with ties to Al-Qaida. He would later be accused of

killings committed in Belgium in the late 1980s. He was not brought before an investigating

judge until 27 February 2008, again without the presence of a lawyer, while accompanied

by one of the police officers who had participated in his torture.

38.

On 2 April 2008, appearing a second time before the investigating judge, this time

assisted by a lawyer, Mr. Belliraj contested the statements he had signed and mentioned the

abuse he had suffered. However, the judge took no action. Then, during the trial, evidence

was presented at the last minute, without the parties being able to discuss it. Once again, the

court ignored the allegations of torture and confessions obtained under duress. At the end of

the trial on 29 July 2009, Mr. Belliraj was sentenced to life imprisonment. One year later,

on 16 July 2010, the Rabat Court of Appeal upheld the verdict. In June 2011, the Court of

Cassation also confirmed the verdict, which then became final.

39.

In the meantime, the widow of one of the victims murdered in Belgium requested

that the case be reopened in Belgium, but the Belgian Crown Prosecutor considered that the

allegations of torture in detention in Morocco were plausible and credible and therefore

requested that the case be dismissed. Moreover, the Belgian judge noted that the rights of

defence had not been respected. Recognizing that the protections afforded under the

European Convention on Human Rights had not been respected in this case, the Belgian

court decided that the request to reopen the case could not be granted.

40.

In the opinion of the Working Group, this case involves two major violations.

Firstly, there was a violation of procedural standards, including the obligation to notify the

cause of the arrest or detention (article 9 (1) of the International Covenant on Civil and

Political Rights) and the obligation to respect the rights of the accused to legal assistance

and the means to defend himself (article 14 of the Covenant). This violation falls within

categories I and III, as defined in the aforementioned methods of work.

41.

Secondly, there was a violation of a fundamental rule of criminal justice, according

to which confessions obtained under duress are worthless in any criminal proceedings. The

prohibition on torture is an absolute or peremptory norm. The violation of this norm,

accompanied by the use of the illegally obtained confession, constitutes a major additional

circumstance that renders the proceedings totally unfair, such that the violation of the right

to a fair trial is aggravated.1 This violation also falls within category III.

42.

To make the situation even more serious, the judges in the successive proceedings in

Morocco failed in their duty to take into consideration the arguments of the defence,

particularly when the defendant claimed to have been tortured. At the very least, a proper

investigation should have been ordered to establish the truth before moving forward,

especially given that the trial ended with the conviction of the defendant on the basis of

confessions obtained under torture. This shows a lack of independence on the part of the

representatives of the judiciary meriting more in-depth evaluation through the most

appropriate special procedure.

1 This essential rule regarding the prohibition on torture and the non-admissibility of evidence obtained

under torture in criminal proceedings is clearly established by the Human Rights Committee in its

general comment No. 20 (1992) on the prohibition of torture and cruel, inhuman or degrading

treatment or punishment and general comment No. 32 (2007) on the right to equality before courts

and tribunals and to a fair trial. Furthermore, the European Court of Human Rights has also

recognized this rule by referring to the right to a fair trial as defined in the 1950 European Convention

for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights), including in the case of Gäfgen v. Germany (Grand Chamber, judgment of 1 June 2010),

para. 166.

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Disposition

43.

In the light of the foregoing, the Working Group renders the following opinion:

The arrest and continued detention of Abdelkader Belliraj are arbitrary and fall

within categories I and III of the categories referred to by the Working Group when

considering cases submitted to it; the Government of Morocco has an obligation to

put an end to this situation and to provide the victim with appropriate reparation.

44.

The Working Group therefore calls for the immediate release of Mr. Belliraj and

appropriate reparation for the serious violations he has suffered.

45.

In accordance with paragraph 33 (a) of its methods of work, the Working Group is

referring the case to the Special Rapporteur on the independence of judges and lawyers and

the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment.

Follow-up procedure

46.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Belliraj has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Belliraj;

(c)

Whether an investigation has been conducted into the violation of Mr.

Belliraj’s rights and, if so, what the outcome of the investigation was;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Morocco with its international obligations in line

with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

47.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the

Working Group.

48.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. This follow-up

procedure will enable the Working Group to inform the Human Rights Council of progress

made in implementing its recommendations, as well as any failure to take action.

49.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.2

[Adopted on 23 August 2016]

2 See Human Rights Council resolution 24/7, paras. 3 and 7.