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A/HRC/WGAD/2019/67

Opinion no. 67/2019 concerning Brahim Moussayih, Mustapha Burgaa, Hamza Errami, Salek Baber, Mohamed Rguibi, Elkantawi Elbeur, Ali Charki, Aomar Ajna, Nasser Amenkour, Ahmed Baalli, Aziz El Ouahidi, Mohammed Dadda, Omar Baihna and Abdelmoula El Hafidi (Morocco)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2019-11-22 · en UN

Opinion; Subjects: MOROCCO, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.20-01820 (E) 310320 010420



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-sixth session, 18–22 November 2019

Opinion No. 67/2019 concerning Brahim Moussayih, Mustapha Burgaa,

Hamza Errami, Salek Baber, Mohamed Rguibi, Elkantawi Elbeur, Ali

Charki, Aomar Ajna, Nasser Amenkour, Ahmed Baalli, Aziz El

Ouahidi, Mohammed Dadda, Omar Baihna and Abdelmoula El Hafidi

(Morocco)

1.

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

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution

60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 5 July 2019 the

Working Group transmitted to the Government of Morocco a communication concerning

Brahim Moussayih, Mustapha Burgaa, Hamza Errami, Salek Baber, Mohamed Rguibi,

Elkantawi Elbeur, Ali Charki, Aomar Ajna, Nasser Amenkour, Ahmed Baalli, Aziz El

Ouahidi, Mohammed Dadda, Omar Baihna and Abdelmoula El Hafidi. The Government

submitted a late response to the communication on 13 November 2019. 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 Covenant (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

A/HRC/WGAD/2019/67

General Assembly

Distr.: General

7 February 2020

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

(a)

Background

4.

Brahim Moussayih was born in 1993. Mr. Moussayih is a Saharan student activist

linked to a Saharan student committee in Agadir.

5.

Mustapha Burgaa was born in 1994. Mr. Burgaa is a Saharan student activist linked

to a Saharan student committee in Agadir.

6.

Hamza Errami was born in 1992. Mr. Errami is a Saharan activist and spokesperson

for a Saharan student committee of the faculty of sciences of Ibn Zohr University in Agadir.

7.

Salek Baber was born in 1993. Mr. Baber is a Saharan student and spokesperson for

a Saharan student committee of the faculty of sciences of Ibn Zohr University in Agadir.

8.

Mohamed Rguibi was born in 1993. Mr. Rguibi is a Saharan student activist linked

to a Saharan student committee in Agadir.

9.

Elkantawi Elbeur was born in 1992. Mr. Elbeur is a Saharan student activist linked

to a Saharan student committee in Agadir.

10.

Ali Charki was born in 1994. Mr. Charki is a Saharan student and a representative of

the Union of Saharan Students in Moroccan Universities.

11.

Aomar Ajna was born in 1993. Mr. Ajna is a Saharan student and a member of the

Marrakech Association of Saharan Students.

12.

Nasser Amenkour was born in 1992. Mr. Amenkour is a Saharan student activist

seeking employment in Marrakech.

13.

Ahmed Baalli was born in 1991. Mr. Baalli is a student at Ibn Zohr University in

Agadir. He was actively involved in the establishment of a Saharan student committee in

Agadir and in cooperation between Saharan and Moroccan student unions. Mr. Baalli is a

well-known Saharan activist who openly campaigns for the right to self-determination of

the people of Western Sahara.

14.

Aziz El Ouahidi was born in 1993. Mr. El Ouahidi is a Saharan student activist and a

member of the Agadir Students’ Association.

15.

Mohammed Dadda was born in 1993. Mr. Dadda is a Saharan student activist and a

member of the Marrakech Students’ Association.

16.

Omar Baihna was born in 1991. Mr. Baihna is a Saharan student activist linked to

the Marrakech Students’ Association.

17.

Abdelmoula El Hafidi was born in 1986. Mr. El Hafidi is a student in Marrakech

and a human rights activist linked to the Boujdour Press media committee and the

Association sahraouie pour la défense des droits de l’homme (Saharan Association for the

Defence of Human Rights). He was previously detained as a political prisoner because of

his views on the right to self-determination of the people of Western Sahara.

18.

These persons are hereinafter referred to as “the group of students”.

(b)

Arrest and detention

19.

The source reports that the group of students were arrested in connection with an

incident that resulted in the death of a Moroccan student during a demonstration held at

Cadi Ayyad University in Marrakech on 23 January 2016. The demonstration had in fact

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been organized after a Saharan student was seriously injured in a knife attack in December

2015. When the Moroccan authorities made no attempt to prosecute the perpetrators and to

ensure that justice was done, the Saharan students organized the demonstration of 23

January 2016, during which the demonstrators were met by several Moroccan students who

tried to disperse them. One student died in the clash between the two groups. According to

the source, it was not possible to ascertain how he died or who was responsible for his

death.

20.

The source states that Mr. Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber and Mr.

Rguibi were arrested by police officers near the Malaysia Café on Al Bustan Alal Fassi

Street in Marrakech at around 3 p.m. on 24 January 2016. On 26 January 2016, they were

brought before the prosecutor, who ordered a thorough investigation. On 27 January 2016,

they were brought before the investigating judge, who informed them of the reason for their

arrest and ordered that they be detained in Oudaïa prison.1

21.

The source then explains that Mr. Elbeur, Mr. Charki, Mr. Ajna, Mr. Amenkour and

Mr. Baalli were arrested at a house in the Madame Plaza district at around 6 p.m. on 24

January 2016 by police officers who beat them and insulted them. On 26 January 2016, the

five men were brought before the prosecutor, who ordered that the investigation should

continue and sent them back to the police station. On 27 January 2016, they were brought

before the investigating judge, who informed them of the reason for their arrest and ordered

that they be detained in Oudaïa prison.2

22.

As for Mr. El Ouahidi, the source reports that he handed himself in at Mhamid el

Rhozlane gendarmerie station at around 10 p.m. on 5 February 2016, after Moroccan

intelligence officers broke into his home twice and some members of his family were

severely assaulted. His younger brother was reportedly also threatened with arrest if Mr. El

Ouahidi did not turn himself in to the authorities. According to the source, Mr. El Ouahidi

did not know why he was wanted by the authorities and was not informed of the reason for

his arrest by the gendarmerie when he handed himself in. He was transferred to Marrakech

on 6 February 2016 and held incommunicado until 7 February 2016, when he was brought

before the investigating judge, who informed him of the reasons for his arrest. After his

arrest, he was placed in detention at Oudaïa prison.3

23.

The source also explains that Mr. Dadda was arrested in Laayoune, Western Sahara,

at 5 p.m. on 29 February 2016. That same day, he was transferred to Agadir; when he

arrived there on 1 March 2016, he was detained in a police station. At 4 a.m. on 2 March

2016, he was transferred to Marrakech. He arrived at the police station in Marrakech at

around 7 a.m. and was questioned. Mr. Dadda was held incommunicado until 5 March

2016, when he was brought before the investigating judge, who informed him of the

reasons for his arrest. After his arrest, he was placed in detention at Oudaïa prison.4

24.

As regards Mr. Baihna, the source reports that he was arrested at Laayoune police

station on 15 March 2016 as he was collecting some administrative documents. He was

transferred by public transport to Agadir police station, arriving there on 16 March 2016.

Mr. Baihna was allegedly held in the basement of Agadir police station for two days

without food or water. On 18 March 2016, he was transferred by bus to Marrakech. Upon

his arrival at the police station, he was taken to a small room to be questioned about his

1 As regards the places of detention, according to the source, Mr. Moussayih and Mr. Baber were

transferred to Ait Melloul prison on 14 July 2018. On 4 July 2018, Mr. Burgaa and Mr. Rguibi were

transferred to Tiznit prison and Mr. Errami to Ait Melloul prison.

2 The source states that on 4 July 2018, Mr. Elbeur and Mr. Amenkour were transferred to Bouizakarne

prison and Mr. Charki to Ait Melloul prison. Mr. Ajna was transferred first to Tiznit prison on 4 July

2018, then to Ait Melloul prison on 29 July 2018, and finally to Oukacha prison in Casablanca on 17

November 2018. Mr. Baalli was transferred to Ait Melloul prison on 4 July 2018, then to Tiznit

prison on 14 July 2018, and finally to Bouizakarne prison on 18 January 2019.

3 Mr. El Ouahidi was transferred to Ait Melloul prison on 15 July 2018, then to Bouizakarne prison on

17 July 2018.

4 Mr. Dadda was transferred to Ait Melloul prison on 15 July 2018, then to Oukacha prison in

Casablanca on 17 November 2018.

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political activism; he was then detained incommunicado. On 20 March 2016, he was

brought before the Marrakech investigating judge, who informed him of the reasons for his

arrest. After his arrest, he was placed in detention at Oudaïa prison.5

25.

Lastly, the source reports that Mr. El Hafidi was arrested in a shop in Cabo Bojador,

Western Sahara, on 16 April 2016. He was taken to the police station before being

transported to Agadir, where he was detained for 48 hours without food or water. On 18

April 2016, he was taken to Marrakech. He was shown photographs of other human rights

activists and photographs taken at seminars, and he was asked about his links with the

people in the photographs, his political activism and his human rights activities. On 20

April 2016, he was brought before the investigating judge, who informed him of the reason

for his arrest. After his arrest, he was placed in detention at Oudaïa prison.6

26.

The source asserts that although the various members of the group of students were

arrested in different places and at different times, there are similarities between the arrests.

All the members of the group of students were arrested without a warrant and without being

informed of the reasons for their arrest. After their arrest, they were held incommunicado

for a period ranging from two to five days before being brought before an investigating

judge. Only then were they informed of the reasons for their arrest. All the members of the

group of students claim to have been tortured, beaten and threatened with rape. They were

also forced to sign police reports that had been prepared in advance, without having had the

opportunity to read them. In particular, the source reports that Mr. Baalli was beaten around

the head with a metal tube and fainted three times. He was also allegedly threatened with

rape by officers who ripped his trousers. All the members of the group of students claim

that they were questioned about their political activism and their links with the Frente

Popular para la Liberación de Saguía el-Hamra y de Río de Oro (Frente POLISARIO).

27.

The source reports that the members of the group of students were initially charged

with murder but that, on 6 July 2017, the court of first instance amended the charges and

classified the acts as violence intentionally causing death, under articles 392, 393, 400, 401

and 403 of the Moroccan Criminal Code.

28.

According to the source, the trial before the Marrakech Court of First Instance was

opened on 14 July 2016 but was postponed the same day. The trial was subsequently

postponed nine times; in the end, it began in May 2017. During the proceedings of May

2017, the members of the group of students declared that they were being detained on

account of their political views on the right to self-determination of the Saharan people and

informed the judge that they had been subjected to torture and forced to sign the

confessions that had been put forward as the only evidence against them. They further

informed the court that, during their initial questioning, they had been tortured and had

been asked only about their political beliefs. They added that they had not known what they

were being charged with while they were in police custody because they had not been

informed of the charges until they were brought before the investigating judge. They also

demanded to undergo a medical examination in accordance with the Manual on the

Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (Istanbul Protocol). Lastly, the members of the group

of students insisted that they had not been present during the violent clashes that had

followed the demonstration on 23 January 2016 and declared themselves innocent of all the

charges against them. The proceedings were postponed to 21 June and then to 6 July 2017.

On that date, 4 members of the group were sentenced to 10 years’ imprisonment and 10

members of the group were sentenced to 3 years’ imprisonment.

29.

The source notes that during the appeal hearings that began on 12 December 2017,

the members of the group of students made the same statements they had made before the

court of first instance. The source notes that all the evidence submitted by the defence was

5 Mr. Baihna was transferred to Ait Melloul prison on 15 July 2018, then to Bouizakarne prison on 17

July 2018.

6 Mr. El Hafidi was transferred to El Arjat prison on 15 July 2018, before being returned to Oudaïa

prison on 17 July 2018. He was transferred to Ait Melloul prison on 20 July 2018 and then to

Oukacha prison in Casablanca.

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rejected. The hearings were postponed three times and then the court of appeal upheld the

convictions on 10 April 2018.

30.

The four persons sentenced to 10 years’ imprisonment are Mr. El Ouahidi and Mr.

Dadda, who are being detained in Oudaïa prison in Marrakech; Mr. El Hafidi, who is being

detained in Oukacha prison in Casablanca; and Mr. Elbeur, who is being detained in

Bouizakarne prison.7

31.

The other students were sentenced to 3 years’ imprisonment. After serving their

sentences, Mr. Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber, Mr. Rguibi, Mr. Charki,

Mr. Baalli, Mr. Ajna and Mr. Amenkour were released on 25 January 2019. Mr. Baihna

was released on 17 March 2019.

32.

The source also describes the conditions in which those who are still deprived of

their liberty are being held. Apparently, in the period since the release of some members of

the group of students, the other members’ conditions of detention have deteriorated. The

detainees are kept under close watch and are repeatedly harassed by prison guards, and they

cannot use the prison telephone to contact their families. They have been denied the right to

receive visits from their families, in violation of the United Nations Standard Minimum

Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Mr. Dadda and Mr. El

Ouahidi reportedly went on hunger strike on 18 February 2019 to protest against their

conditions of detention and the refusal of the prison administration to communicate with

them. Mr. Dadda went on hunger strike for a second time on 2 May 2019 in response to the

prison administration’s refusal to provide him with the medical care that he needed. That

day, he had requested medical treatment for a skin rash but the prison administration had

refused to grant his request. Since then, the skin rash has reportedly spread and grown

worse. When Mr. Dadda informed the prison administration of his intention to go on

hunger strike, his request was denied and he was beaten and denigrated by an officer at Ait

Melloul prison. He was then placed in solitary confinement, where he remains. As at 14

May 2019, Mr. Dadda was still on hunger strike and in solitary confinement.

33.

The source also draws attention to the conditions of detention faced by Mr. El

Hafidi, who was placed in solitary confinement because he had registered as a university

student and had requested permission to sit his examinations while in detention. According

to the source, restrictions on studying and on access to examinations are a common form of

retaliation against Saharan political prisoners. Mr. El Hafidi’s examinations were postponed

several times. When Mr. El Hafidi contacted a prison officer, he was accused of insulting

the officer and sentenced to 45 days of solitary confinement, starting on 12 March 2019. In

response, Mr. El Hafidi went on hunger strike on 9 March 2019. Since then, his family has

been prevented from communicating with him and he has had no contact with the outside

world. Mr. El Ouahidi and Mr. Dadda announced that they would go on hunger strike in

solidarity with Mr. El Hafidi, starting on 28 March 2019.

(c)

Legal analysis

34.

The source asserts that the detention of the group of students is arbitrary under

categories I, II, III and V as defined in the Working Group’s methods of work. The source

adds that the violations committed against the group of students also constitute violations of

international humanitarian law, since Western Sahara is an occupied territory and the group

of students are among the persons protected by the Convention respecting the Laws and

Customs of War on Land, the Geneva Conventions for the protection of war victims

(Geneva Conventions of 1949), in particular the Geneva Convention relative to the

Protection of Civilian Persons in Time of War (Fourth Geneva Convention), and customary

international law.

7 In a submission dated 14 May 2019, the source reports that Mr. Elbeur and Mr. El Ouahidi are now

being detained in Bouizakarne prison, while Mr. El Hafidi is being detained in Oukacha prison in

Casablanca and Mr. Dadda is being detained in Ait Melloul prison in Agadir.

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(i)

Category I

35.

The source claims that the arrest and detention of the group of students have no legal

basis, contrary to article 9 of the Universal Declaration of Human Rights, article 9 of the

International Covenant on Civil and Political Rights, and Moroccan law; they therefore

constitute a violation under category I. The members of the group of students were arrested

without a warrant and without being informed of the charges against them, in violation of

article 9 (2) of the Covenant. The source also reports that the members of the group of

students were not informed of the charges against them before they were brought before the

investigating judge. They were taken to the police station and held incommunicado for

between two and five days, outside the protection of the law, in violation of article 9 (3) of

the Covenant. The source points out that under article 140 of the Moroccan Code of

Criminal Procedure, detainees must be brought before a judge within 24 hours of their

arrest and they must have access to a lawyer within the same period. In addition, the

members of the group of students were subjected to acts of torture while they were being

questioned. They were then forced to sign police reports that had been prepared in advance,

without having had the opportunity to read them.

(ii)

Category II

36.

The source maintains that the arrest and detention of the members of the group of

students resulted from the exercise of their fundamental rights and therefore constitute a

violation under category II.

37.

The source notes that some members of the group of students are well-known human

rights activists and that one of them, Mr. El Hafidi, is a former political prisoner. Saharans

who study in Morocco are subjected to discrimination and harassment by fellow students,

professors and the administration. The Moroccan police often raid their rooms and destroy

their property, creating a climate of fear among Saharan students. The students therefore set

up student organizations and committees that hold demonstrations. During one such

demonstration, one person died and the members of the group of students were all found

guilty of violence intentionally causing death.

38.

The source notes that all the members of the group of students told the court that

they had not been present in front of Cadi Ayyad University in Marrakech at the time of the

incident and that they had not attended the demonstration held on 23 January 2016. There

was no evidence against the group of students aside from the police reports that they had

signed under torture. The source also notes that they were questioned about their political

views and activities, especially their links with the Frente POLISARIO and with other

Saharan activists, and about their participation in various human rights conferences.

39.

The source maintains that the group of students were imprisoned in response to their

open advocacy of the right to self-determination of the people of Western Sahara and their

human rights activism, particularly with regard to the treatment of Saharan students in

Moroccan universities. Consequently, the source argues that the detention of the group of

students resulted from the exercise of their rights to freedom of expression and association,

enshrined in articles 19 and 21 of the Covenant, as Saharan student human rights activists

and that their detention is therefore arbitrary under category II.

(iii)

Category III

40.

The source asserts that the deprivation of liberty of the group of students is arbitrary

because their detention and the proceedings instituted by the Government of Morocco

failed to meet international standards.

41.

The source maintains that the use of police reports signed under torture as evidence

was a violation of the right not to be compelled to testify against oneself, which is protected

by article 14 of the Covenant and by Moroccan law, and that the reports should not have

been admissible, as they constituted evidence obtained by illegal means. The use of torture

to obtain a confession is also a violation of customary international law and of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.

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42.

The source notes that the members of the group of students informed the

investigating judge and the trial judge that the police reports had been prepared in advance

and that they had signed the reports under torture. Moreover, after the treatment that they

had suffered, they bore obvious signs of torture and they demanded to undergo a medical

examination in accordance with the Istanbul Protocol. Neither the investigating judge nor

the trial judge took these allegations of torture into account, nor did they order a medical

examination or an investigation.

43.

The source argues that the criminal proceedings were fundamentally corrupted, as

they were based on evidence obtained through such abuses, and that the principle of a fair

trial was irrevocably undermined. Consequently, the source submits that the Government of

Morocco acted in violation of articles 7 and 14 (3) (g) of the Covenant.

44.

The source also notes that the group of students did not receive adequate legal

assistance and were not given the opportunity to prepare a defence, as required by article 14

(3) (b) and (d) of the Covenant. Yet the right to legal assistance and the right of defence are

central to the right to a fair trial and the principle of equality before courts and tribunals.

45.

The source reports that the members of the group of students did not receive legal

assistance either when they were arrested or when they were brought before the

investigating judge. During the most recent proceedings against members of the group, the

defence were prohibited from submitting exonerating evidence to the court for inclusion in

the case file, such as witness statements and evidence that the defendants had not been

present at the scene of the crime. Mr. Dadda was not allowed to submit documents proving

that he had been sitting an examination at the time of the demonstration. Mr. El Ouahidi,

meanwhile, had been in Agadir on the day of the demonstration, and he urged the court to

order the disclosure of bus station surveillance recordings in order to prove his innocence.

The court denied his request, however. The members of the group of students and their

lawyers were also repeatedly interrupted, which prevented them from making a proper

defence.

46.

The source maintains that the right of the group of students to a public hearing,

under article 14 (1) of the Covenant, was not respected. The source reports that

international observers and human rights activists were repeatedly prevented from entering

the courtroom during the trials. Furthermore, access to the courtroom was granted to the

families of the accused only three times and to just one person per family each time.

47.

In conclusion, the source asserts that: (a) the proceedings brought against the

members of the group of students did not meet the requirements of international law on the

right to a fair trial, as set out in articles 9 and 14 of the Covenant; (b) their arrest was

unlawful under article 9 (2) of the Covenant; (c) their right to be informed of the charges

against them, under article 14 (3) (a) of the Covenant, was violated; (d) the use of

confessions signed under torture and/or duress as criminal evidence was a violation of

article 14 (3) (g) of the Covenant; (e) their right to legal counsel and to a proper defence,

under article 14 (1) and (3) (b) of the Covenant, was violated; and (f) their right to a public

hearing, under article 14 (1) of the Covenant, was not respected. According to the source,

all these violations render the detention of the members of the group of students arbitrary

under category III.

48.

The source argues that the breaches of fair trial requirements and of the prohibition

of torture are also violations of international humanitarian law. Furthermore, the conviction

of the members of the group of students by the Moroccan courts and their detention in

Moroccan prisons constitute violations of the Geneva Conventions of 1949, in particular

articles 48, 66, 67 and 76 of the Fourth Geneva Convention.

(iv)

Category V

49.

Lastly, the source asserts that the detention of the group of students is arbitrary

because it is based on their Saharan identity and therefore constitutes a violation under

category V.

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50.

The source maintains that the members of the group of students are Saharans and, as

such, they have the right to self-determination, in accordance with the principles set out in

General Assembly resolutions 1514 (XV), 1541 (XV) and 2625 (XXV).

51.

The source notes that in the present case, the members of the group of students were

arrested and imprisoned because of their political views on the right to self-determination of

the Saharan people. If the members of the group of students had not been Saharans and had

not expressed their opinion on the political crisis in Western Sahara, the trials in question

would not have taken place.

52.

The source reiterates that the members of the group of students are all human rights

defenders who are concerned about the rights and repression of Saharan students. The

source draws attention once again to the fact that Saharans who study at Moroccan

universities are subjected to discrimination and harassment. The members of the group of

students have been at the forefront of efforts to protect the rights of Saharan students. Their

unlawful arrest and subsequent treatment, which included torture and questioning about

their political activism, show that their detention constitutes discrimination in violation of

international law, insofar as the equality of human beings is being ignored.

53.

The members of the group of students were therefore targeted and subjected to

discrimination because of their political views on the right to self-determination of the

Saharan people; this renders their detention arbitrary under category V, as it constitutes

discrimination in violation of international law, specifically articles 1, 2, 26 and 27 of the

Covenant.

54.

The source adds that article 47 of the Fourth Geneva Convention prohibits depriving

persons who are in occupied territory of the protection of the Convention by assimilating

them into the population of the occupying Power and that doing so constitutes a violation

under category V. The source claims that the members of the group of students were

arrested and imprisoned because of their activism in support of the right to self-

determination. They were all tortured and questioned solely about their activism and their

views on the Western Sahara conflict. The officer who tortured them called them

separatists, traitors and enemies of the Kingdom of Morocco; this shows that the aim of the

practices used against the students, which included arbitrary arrest, torture and arbitrary

detention, was to force them to swear allegiance to the occupying country. According to the

source, these practices contravene article 45 of the Regulations respecting the Laws and

Customs of War on Land and constitute grave violations of international humanitarian law,

as defined in article 147 of the Fourth Geneva Convention.

Response from the Government

55.

On 5 July 2019, the Working Group transmitted the allegations from the source to

the Government through its regular procedure. The Working Group requested the

Government to provide further information by 4 September 2019 on the situation of the

members of the group of students since their arrest, including any comments it might wish

to make on the allegations set forth in the communication. In particular, the Working Group

requested the Government to clarify the facts and legal provisions justifying the detention

of the group of students and the compatibility of their detention with the obligations of

Morocco under international human rights law. The Working Group also called on the

Government to safeguard the physical and mental integrity of the persons concerned.

56.

On 30 August 2019, the Government of Morocco requested a one-month extension

of the deadline for its response; the Working Group granted this request and extended the

deadline to 4 October 2019.

57.

On 1 November 2019, the Government requested a second extension. This request

was not granted because there is no provision for such an extension in the Working Group’s

methods of work. On 13 November 2019, the Government submitted its response. Since the

response was sent after the extended deadline, the Working Group cannot consider it to

have been submitted on time.

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Discussion

58.

In the absence of a timely response from the Government, the Working Group has

decided to render the present opinion, in conformity with paragraph 15 of its methods of

work. The Working Group notes that pursuant to paragraph 16 of its methods of work, it

renders opinions on the basis of all the information it has received.

59.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68).8 In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

60.

The Working Group notes that Mr. Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber,

Mr. Rguibi, Mr. Charki, Mr. Baalli, Mr. Ajna and Mr. Amenkour were released on 25

January 2019, while Mr. Baihna was released on 17 March 2019. In such circumstances,

the Working Group has the option of filing the case or rendering an opinion as to the

arbitrariness of the detention, in conformity with paragraph 17 (a) of its methods of work.

The Working Group notes that the releases occurred at the end of the prison terms imposed

on the persons concerned. Mr. El Ouahidi, Mr. Dadda, Mr. El Hafidi and Mr. Elbeur are

still in detention, as they have not yet served their sentences in full. Bearing in mind these

circumstances, the Working Group has decided to continue considering the case with a

view to rendering an opinion.

61.

In the complaint, the source presents arguments relating to four categories of

arbitrary detention.

(a)

Category I

62.

The source alleges that the arrests of the members of the group of students, which

occurred between 24 January and 16 April 2016, were carried out without a warrant and

without their being informed of the reasons for their arrest or the charges against them. The

Working Group recalls that under article 9 (1) of the Covenant, no one may be deprived of

liberty except on such grounds and in accordance with such procedure as are established by

law. In order for deprivation of liberty to have a legal basis, the mere existence of a law that

may be used to justify it is insufficient. The authorities must invoke this legal basis and

apply it to the circumstances of the case by means of an arrest warrant, except in the case of

arrests in flagrante delicto where the circumstances are sufficient to justify the arrest.

Article 9 (2) of the Covenant, meanwhile, stipulates that anyone who is arrested must be

informed, at the time of arrest, of the reasons for the arrest. In the present case, the Working

Group notes that all the persons concerned deny that they were present at the demonstration

on 23 January 2016. The Working Group also notes that the arrests were spaced out in time

and considers that, in view of the information transmitted by the source, which has not been

contested by the Government, the procedure that applies in the case of arrests in flagrante

delicto does not seem to be applicable. It therefore concludes that the arrests of the

members of the group of students should have been accompanied by an arrest warrant. It

further concludes that the failure to inform the persons concerned of the reasons for their

arrest constitutes a violation of article 9 of the Universal Declaration of Human Rights and

article 9 of the Covenant.

63.

The source maintains that the arrested persons were held incommunicado for a

period ranging from three to five days. The Government has chosen not to refute this

allegation, which the Working Group considers to be credible. The Working Group notes

that the use of incommunicado detention means that the arrested persons had no contact

with the outside world, including with persons such as family members or lawyers, who

could have assisted them. They were therefore unable to exercise their right to challenge the

lawfulness, appropriateness and necessity of their arrest and detention, in violation of

article 9 (4) of the Covenant.

8 See also opinion No. 27/2016, para. 36.

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64.

Lastly, once in detention, the members of the group of students were allegedly not

brought before a judge until 48 hours after their arrest, with the exception of Mr. Dadda,

who was not brought before a judge until 72 hours after his arrest. Yet, according to the

source, article 140 of the Moroccan Code of Criminal Procedure stipulates that anyone who

is arrested must be brought before a judge within 24 hours of the arrest. The Working

Group recalls that, as a general rule, the question of whether proceedings were conducted in

accordance with national law is outside its jurisdiction. However, it notes that the national

standard is consistent with article 9 (3) of the Covenant, which stipulates that anyone who

is arrested must be brought promptly before a judge. The Working Group notes that the

Human Rights Committee has explained that the time frame in such cases should not

exceed 48 hours;9 it further notes that Moroccan law imposes a shorter time limit of 24

hours. In the light of the Committee’s interpretation, the Working Group considers that the

violation of this stricter standard also constitutes a violation of the international standard

and that the issue therefore falls within its jurisdiction. The Working Group concludes that,

by failing to bring the detainees before a judge within the 24-hour time limit established by

Moroccan law, the Government failed to meet its obligation under article 9 (3) of the

Covenant.

65.

The Working Group concludes that the arrest and detention of the group of students

had no legal basis and were therefore arbitrary under category I.

(b)

Category II

66.

The source maintains that the members of the group of students are Saharans who

support the right to self-determination of the people of Western Sahara and that, as soon as

they were arrested, they had to answer questions about their political activism. Recalling its

previous decisions involving similar situations,10 the Working Group concludes that these

are established facts, since the Government has chosen not to contest the allegations.

Consequently, the arrest and detention of the group of students appear to be linked to the

expression of a political opinion, an act that is protected by article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant. The Working Group therefore

concludes that the arrest and detention of the group of students are arbitrary under category

II.

67.

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

refers the relevant information to the Special Rapporteur on the promotion and protection of

the right to freedom of opinion and expression.

(c)

Category III

68.

The Working Group’s finding that the detention is arbitrary under category II means

that no trial should have been held. However, since trials were held in this case, the

Working Group proceeds to consider the alleged violations of the right of the group of

students to a fair trial.

69.

The source alleges that the members of the group of students were subjected to ill-

treatment, physical violence, torture and threats of rape when they were arrested and then

while they were in police custody. The source also reports that they were forced by these

means to sign police reports that had been prepared in advance, without having had the

opportunity to read them. The Working Group notes that the Government has not contested

these allegations. The Working Group recalls that torture is prohibited, under article 7 of

the Covenant in particular, and that forced confessions cannot be used as criminal evidence,

under article 14 (3) (g) of the Covenant. In the present case, the Working Group concludes

that the trial was not fair, in view of the judges’ failure to respond to the above allegations

and the use of confessions that had, according to the members of the group of students,

been obtained against their will.

9 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para.

33.

10 Opinion No. 23/2019, paras. 77–78; opinion No. 60/2018, paras. 70–72; opinion No. 58/2018, paras.

44–45; opinion No. 31/2018, paras. 43–46; and opinion No. 11/2017, paras. 47–48.

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11

70.

The Working Group notes the source’s allegations that the members of the group of

students were not assisted by counsel when they were arrested or when they were brought

before the investigating judge. They were allegedly then prevented from submitting

exonerating evidence for inclusion in the case file and were not allowed to present their

case in full. It is also alleged that their lawyers were repeatedly interrupted during the

proceedings. The Working Group recalls that all accused persons have the right to be

assisted by counsel as soon as possible and at any time during detention, including

immediately after their arrest.11 It is particularly important for a lawyer to be present in

order to protect the rights of the accused in the event that he or she chooses to confess. In

the present case, the Working Group considers that the members of the group of students

were deprived of a proper defence as a result of the failure to comply with fair trial

requirements, in violation of article 10 of the Universal Declaration of Human Rights and

article 14 (1) of the Covenant.

71.

Lastly, the source maintains that international observers and human rights activists

were repeatedly prevented from entering the courtroom, while the families of the accused

were granted access to only 3 of the 14 trials and only one person per family was allowed to

enter the courtroom each time. The Government has not responded to this allegation. The

Working Group therefore concludes that the right to a public hearing, enshrined in article

14 (1) of the Covenant, has been violated.

72.

The Working Group concludes that these infringements of the right to a fair trial are

particularly serious and render the arrest and detention arbitrary under category III.

73.

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

considers it appropriate to refer the allegations of torture and other inhuman and degrading

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

treatment or punishment.

(d)

Category V

74.

The Working Group recalls its previous decisions in cases involving Saharans and

its finding of discrimination against the persons concerned.12 In the present case, the facts

support such a finding. First, two criminal offences were committed, resulting in the injury

of a Saharan student and then the death of a Moroccan student. According to the source,

only the acts committed against the Moroccan student were investigated and no such

proceedings were initiated by the authorities in respect of the acts committed against the

Saharan student. The Government could have sought to demonstrate that the two situations

were dealt with in the same way, but it chose to remain silent.

75.

The Working Group notes the links between the group of students and the political

situation in Western Sahara. The source states that all the members of the group are

Saharan activists and affirm their links with the political movement for the independence of

Western Sahara. The Working Group also notes the source’s allegation that the questioning

conducted by law enforcement officers was focused on the group members’ political

activism and links with the Frente POLISARIO. These allegations have not been contested

by the Government. The Working Group recalls that it has previously considered

deprivation of liberty to be arbitrary in cases where it was used to repress members of

political groups in order to silence their calls for self-determination.13

76.

The Working Group considers that the members of the group of students were

indeed targeted because of their political activism in support of the right to self-

determination of the people of Western Sahara. In these circumstances, it concludes that the

current situation has arisen as a result of discrimination in violation of international law, in

11 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and

tribunals and to a fair trial, para. 34, and United Nations Basic Principles and Guidelines on Remedies

and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a

Court, principle 9 and guideline 8.

12 See, inter alia, opinions No. 23/2019, No. 60/2018, No. 58/2018, No. 31/2018 and No. 11/2017.

13 Ibid.

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particular article 7 of the Universal Declaration of Human Rights and articles 1, 2 and 27 of

the Covenant. The arrest and detention of the members of the group of students are

therefore arbitrary under category V.

Disposition

77.

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

The deprivation of liberty of Brahim Moussayih, Mustapha Burgaa, Hamza

Errami, Salek Baber, Mohamed Rguibi, Elkantawi Elbeur, Ali Charki, Aomar Ajna,

Nasser Amenkour, Ahmed Baalli, Aziz El Ouahidi, Mohammed Dadda, Omar

Baihna and Abdelmoula El Hafidi, being in contravention of articles 7, 9, 10 and 19

of the Universal Declaration of Human Rights and articles 1, 2, 7, 9, 14, 19 and 27

of the International Covenant on Civil and Political Rights, is arbitrary and falls

within categories I, II, III and V.

78.

The Working Group requests the Government of Morocco to take the steps

necessary to remedy the situation of Mr. Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber,

Mr. Rguibi, Mr. Elbeur, Mr. Charki, Mr. Ajna, Mr. Amenkour, Mr. Baalli, Mr. El Ouahidi,

Mr. Dadda, Mr. Baihna and Mr. El Hafidi without delay and bring it into conformity with

the relevant international norms, including those set out in the Universal Declaration of

Human Rights and the International Covenant on Civil and Political Rights.

79.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Elbeur, Mr. El Ouahidi, Mr. Dadda

and Mr. El Hafidi immediately and accord them, as well as Mr. Moussayih, Mr. Burgaa,

Mr. Errami, Mr. Baber, Mr. Rguibi, Mr. Charki, Mr. Ajna, Mr. Amenkour, Mr. Baalli and

Mr. Baihna, who have already been released, an enforceable right to compensation and

other reparations, in accordance with international law.

80.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber, Mr. Rguibi, Mr. Elbeur, Mr. Charki, Mr.

Ajna, Mr. Amenkour, Mr. Baalli, Mr. El Ouahidi, Mr. Dadda, Mr. Baihna and Mr. El

Hafidi and to take appropriate measures against those responsible for the violation of their

rights.

81.

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

refers the present case to the Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression and to the Special Rapporteur on torture and

other cruel, inhuman or degrading treatment or punishment, for appropriate action.

82.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

83.

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. Elbeur, Mr. El Ouahidi, Mr. Dadda and Mr. El Hafidi have been

released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr.

Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber, Mr. Rguibi, Mr. Elbeur, Mr. Charki, Mr.

Ajna, Mr. Amenkour, Mr. Baalli, Mr. El Ouahidi, Mr. Dadda, Mr. Baihna and Mr. El

Hafidi;

(c)

Whether an investigation has been conducted into the violation of the rights

of Mr. Moussayih, Mr. Burgaa, Mr. Errami, Mr. Baber, Mr. Rguibi, Mr. Elbeur, Mr.

Charki, Mr. Ajna, Mr. Amenkour, Mr. Baalli, Mr. El Ouahidi, Mr. Dadda, Mr. Baihna and

Mr. El Hafidi and, if so, the outcome of the investigation;

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(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.

84.

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.

85.

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

mentioned information within six months of the date of 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. Such action

would 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.

86.

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

States to cooperate with the Working Group and has 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.14

[Adopted on 20 November 2019]

14 Human Rights Council resolution 42/22, paras. 3 and 7.