A/HRC/WGAD/2020/69, Opinion No. 69/2020 concerning Mourad Zefzafi (Morocco)

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]

Erwägungen (50 Absätze)

E. 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.

E. 2 In accordance with its methods of work (A/HRC/36/38), on 6 January 2020 the Working Group transmitted to the Government of Morocco a communication concerning Mourad Zefzafi. The Government submitted a late response on 10 April 2020. The State is a party to the International Covenant on Civil and Political Rights.

E. 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); (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). United Nations A/HRC/WGAD/2020/69 General Assembly Distr.: General 28 January 2021 English Original: French A/HRC/WGAD/2020/69 2 GE.21-01117 Submissions Communication from the source a. Context

E. 4 Mourad Zefzafi was born in 1986 in Al Hoceïma, Morocco. He works as a baker and currently lives in France, where he has lodged an asylum application. He is an activist in the Hirak Rif popular protest movement and is related to a leading figure in this movement, who is currently incarcerated in Morocco. b. Arrest and detention

E. 5 The source reports that, on 28 October 2016, while Mr. Zefzafi was returning from work in Al Hoceïma, in the north of Morocco, he witnessed an incident in front of the tribunal de grande instance (court of major jurisdiction), during which police officers ordered that the cargo of a truck transporting fish be destroyed by a waste collection vehicle and then ordered the activation of the vehicle’s crusher while the owner of the cargo was inside, which resulted in his death. A large crowd witnessed the incident, which triggered a wave of protests and demonstrations in the city.

E. 6 The source further states that this event gave rise to the Hirak Rif popular movement, in the Rif region in the north of Morocco. A member of Mr. Zefzafi’s family was involved in this movement from the beginning and was one of its leaders. On 26 May 2017, after seven months of peaceful protest, the Al Hoceïma prosecution service ordered the immediate arrest of this leader, which led to increasingly violent clashes between law enforcement officers and demonstrators. Today, he remains in detention on account of his involvement.

E. 7 The source goes on to explain that, on 26 May 2017, Mr. Zefzafi was in the company of the above-mentioned family member, who was addressing a crowd of demonstrators from the roof of his home. Police officers entered the house to search for this protest leader, who immediately fled over the rooftops.

E. 8 According to the source, Mr. Zefzafi, who was with relatives of the wanted person, was then violently assaulted by some twenty police officers, who first hit him inside the house and then took him outside while continuing to strike him with their metal helmets and put him in a van, where they hit him again, some with their helmets and with shovel handles, aiming at his face. Once they had arrived at the police station, a police officer and eight other men continued to hit him until he lost consciousness.

E. 9 The source reports that Mr. Zefzafi woke up handcuffed and surrounded by police officers, who insulted him and made threats, including threats of rape. He then spent three days in detention unable to sleep because of the pain. Moreover, he did not receive a single meal and was not allowed to contact a lawyer or his family. His mobile telephone was confiscated and a saliva sample was taken.

E. 10 The source adds that, on 29 May 2017, Mr. Zefzafi was brought before a prosecutor with 24 other persons, with no consideration being given to his physical condition. He then signed a record without being aware of its content and under psychological pressure due to the torture to which he had been subjected. The prosecutor, although cognizant of Mr. Zefzafi’s state of health, ordered that he be remanded in custody for participating in unauthorized demonstrations, insulting and obstructing public officials, throwing stones at public officials and damaging public property.

E. 11 According to the source, on 30 May 2017, Mr. Zefzafi appeared before Al Hoceïma Court of First Instance with 24 other detainees. Lawyers from several cities in Morocco also came to the hearing to defend them. The lawyers asked the court for clarifications about the circumstances of the defendants’ time in police custody, in particular the lack of medical assistance. However, Mr. Zefzafi was unable to speak to a lawyer prior to the hearing and was therefore unable to prepare his defence.

E. 12 The source indicates that, on 14 June 2017, Mr. Zefzafi was sentenced to 18 months’ imprisonment. The source explains that Mr. Zefzafi’s detention conditions in the Al Hoceïma prison were dire; he had no mattress or blanket, was not allowed any visits, could make only A/HRC/WGAD/2020/69 GE.21-01117 3 one telephone call per week and was regularly hit by the guards. He was subsequently transferred to the Fez prison. On 16 June 2017, Mr. Zefzafi was seen by a doctor in prison, who recorded findings of physical abuse.

E. 13 The source adds that, on 17 and 18 July 2017, Mr. Zefzafi was brought before a court of appeal, which reduced his prison sentence to seven months.

E. 14 The source affirms that Mr. Zefzafi was released on 26 December 2017, having served the reduced sentence handed down by the court of appeal.

E. 15 The source further asserts that, following his release, Mr. Zefzafi lost his job because of pressure placed on his employer by the Moroccan authorities. He received death threats by telephone and was monitored by plain-clothes police officers. He was refused administrative services when the officials learned his name.

E. 16 The source points out that Mr. Zefzafi decided to flee to France for fear of reprisals against himself and his family. c. Legal analysis

E. 17 The source states that Mr. Zefzafi was the victim of police violence tantamount to torture or inhuman or degrading treatment. No evidence of his involvement in any criminal offence has been produced.

E. 18 Moreover, the source adds that the arrest, conviction and imprisonment of Mr. Zefzafi resulted exclusively from the exercise of his right to freedom of expression and assembly, owing to his presence alongside the above-mentioned family member.

E. 19 Lastly, the source asserts that Mr. Zefzafi did not enjoy his right to a fair trial, in part because he had no opportunity to prepare his defence. Among other violations, Mr. Zefzafi was arrested without being informed promptly of the charges against him, had no access to the evidence against him and could not speak to a lawyer in private within a reasonable time.

E. 20 In the light of the foregoing, the source asserts that Mr. Zefzafi’s detention was arbitrary. Response from the Government

E. 21 On 6 January 2020, the Working Group transmitted to the Government of Morocco a communication in which it requested detailed information about Mr. Zefzafi’s situation by 6 March 2020 at the latest. Specifically, the Working Group requested the Government to clarify the legal provisions justifying his deprivation of liberty and their compatibility with the obligations of Morocco under international human rights law, in particular with the treaties that the State has ratified.

E. 22 On 3 March 2020, the Government requested an initial one-month extension of the deadline for its response; the Working Group granted this request and extended the deadline to 6 April 2020.

E. 23 On 8 April 2020, the Government requested a second extension. This was not granted. Under paragraph 16 of the Working Group’s methods of work, only a single one-month extension of the deadline may be granted.

E. 24 On 10 April 2020, 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. In accordance with paragraph 16 of its methods of work, the Working Group is rendering its opinion on the basis of all the information that it has obtained. Discussion

E. 25 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.

E. 26 At the outset, the Working Group notes that Mr. Zefzafi was released on 26 December 2017, at the end of his sentence, which had been reduced on appeal. In accordance with A/HRC/WGAD/2020/69 4 GE.21-01117 paragraph 17 (a) of its methods of work, the Working Group reserves the right to render an opinion on whether or not a deprivation of liberty was arbitrary, notwithstanding the release of the person concerned. In the present case, Mr. Zefzafi is reported to have been the victim of serious human rights violations, particularly in that he was detained for exercising his right to freedom of expression and assembly and did not enjoy his right to a fair trial. In these circumstances, the Working Group considers it important to render an opinion on his case.

E. 27 In determining whether Mr. Zefzafi’s deprivation of liberty was arbitrary, the Working Group has regard to the principles established in its jurisprudence for dealing 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 (A/HRC/19/57, para. 68). As the Working Group has often pointed out, including in cases concerning Morocco,1 it is not enough to make a formal objection to the allegations: the State is in possession of all the material relating to the proceedings and is therefore able to provide any information that it deems necessary to support each of its counterarguments.

E. 28 In the complaint, the source presents arguments relating to three categories of arbitrary detention. i. Category I

E. 29 The source asserts that Mr. Zefzafi was arrested without being informed promptly of the charges against him. In its late response, the Government states that Mr. Zefzafi was immediately informed of the grounds for his arrest. According to the Government, Mr. Zefzafi was arrested in flagrante delicto, owing to his direct involvement in an assault on law enforcement officials and damage to public property.

E. 30 In this regard, the Working Group notes that it has consistently found that a person is arrested in flagrante delicto if he or she is apprehended during the commission of a crime or immediately thereafter, or is arrested in hot pursuit shortly after a crime has been committed.2

E. 31 The Working Group is not convinced by the justification of in flagrante delicto invoked by the Government. The information supplied by the source indicates that Mr. Zefzafi was on the roof of the house listening peacefully to his family member addressing the crowd, without using force, and that there were clashes in the street and on the rooftops between law enforcement officials and demonstrators. Although the law enforcement officials came to ensure the safety of the demonstrations, the Government has not shown that Mr. Zefzafi was involved in these clashes and was thus arrested in flagrante delicto. Given the existence of credible allegations from the source, the burden of proof lies with the Government.

E. 32 The Government also claims that the operation at the home of Mr. Zefzafi’s family member was conducted on the basis of instructions issued by the chief prosecutor. However, the Working Group notes that it is inconsistent to state, as the Government does, that the operation was conducted on instructions from the prosecutor while also alleging that Mr. Zefzafi was arrested in flagrante delicto. In view of the above, the Working Group considers that the circumstances of the case cannot be deemed to show the flagrant nature of the offence, as argued by the Government, and concludes that Mr. Zefzafi’s arrest required a warrant.

E. 33 Moreover, the source asserts that Mr. Zefzafi was not informed of the reasons for his arrest or the charges against him. In its late response, the Government simply denies this allegation without offering any information or explanation.

E. 34 The Working Group recalls that, according to article 9 (1) of the Covenant, no one may be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. Article 9 (2) of the Covenant provides that anyone who is arrested must be informed, at the time of arrest, of the reasons for his or her arrest. As the Working Group has previously stated, in order for a deprivation of liberty to have a legal basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must 1 See, in particular, opinions No. 11/2017 and No. 27/2016. 2 Opinion No. 9/2018, para. 38. A/HRC/WGAD/2020/69 GE.21-01117 5 invoke that legal basis and apply it to the circumstances of the case through an arrest warrant.3 Mr. Zefzafi was arrested without a warrant, in violation of article 9 (1) of the Covenant. In addition, Mr. Zefzafi was not informed of the reasons for his arrest, in violation of article 9 (2) of the Covenant. The Working Group considers that an arrest is arbitrary when it is made without the arrested person being informed of the reasons for the arrest.4 In this case, the Working Group concludes that the failure to show an arrest warrant at the time of the arrest and to provide information about the grounds for the arrest contravenes article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant.

E. 35 The source further states that Mr. Zefzafi was placed in detention and was only brought before the prosecutor 72 hours after his arrest. The Government claims that, following Mr. Zefzafi’s arrest on 26 May 2017, he was taken into police custody for 48 hours, which was extended for 24 hours with written authorization from the prosecution service. He was then brought before the prosecutor on 29 May 2017, prior to the expiration of the lawful period of police custody. Mr. Zefzafi was also brought before Al Hoceïma Court of First Instance, on 30 May 2017.

E. 36 The Working Group recalls that, in accordance with article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge must be brought promptly before a judge or other officer authorized by law, to allow that person to challenge the legality of his or her detention. As the Human Rights Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee “promptly” before a judge following his or her arrest, and any longer delay must remain absolutely exceptional and be justified under the circumstances. 5 In the absence of such justification, the Working Group finds that the Government violated its obligation under article 9 (3) of the Covenant by failing to bring Mr. Zefzafi before a judge until four days after his arrest. The Government notes in its late response that Mr. Zefzafi’s detention was extended by the prosecutor on 28 May 2017 and that Mr. Zefzafi was brought before the prosecution service on 29 May 2017. However, as the Working Group has previously noted, a prosecuting body cannot be considered a judicial authority for the purposes of article 9 (3) of the Covenant.6

E. 37 Lastly, the source reports that Mr. Zefzafi’s mobile telephone was confiscated and that a saliva sample was taken. In its late response, the Government does not specifically challenge these allegations and, in particular, does not indicate whether there was a court order to this effect.7 Without any information from the Government regarding the legality of these measures, the Working Group considers that they cannot constitute the legal basis for a decision to detain Mr. Zefzafi.8

E. 38 In the light of these violations of article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant, the Working Group concludes that there was no legal basis for Mr. Zefzafi’s detention and that it was therefore arbitrary under category I. ii. Category II

E. 39 The source affirms that Mr. Zefzafi was detained and convicted for his presumed exercise of his right to freedom of expression and assembly, owing to his presence alongside his family member, who had been involved in Hirak Rif from the beginning and was one of its leaders. The source explains that, on 26 May 2017, Mr. Zefzafi was in the company of this family member, who was addressing a crowd of demonstrators from the roof of his home. Police officers entered the house to search for this protest leader, who immediately fled over the rooftops. 3 Opinions No. 25/2020, para. 34; No. 46/2018, para. 48; No. 36/2018, para. 40; No. 10/2018, para. 45; and No. 38/2013, para. 23. 4 Opinions No. 83/2019, para. 50; No. 46/2019, para. 51; and No. 10/2015, para. 34. 5 Human Rights Committee, general comment No. 35 (2014), para. 33. 6 Ibid., para. 32. See also opinions No. 41/2020, para. 60; No. 5/2020, para. 72; and No. 14/2015, para.

28. See also A/HRC/45/16/Add.1, para. 35. 7 See, for example, opinion No. 83/2018, paragraphs 44 and 45, in which it is found that the confiscation of a mobile telephone constituted a violation of article 9 (1) of the Covenant. 8 Opinion No. 78/2018, paras. 68–69. A/HRC/WGAD/2020/69 6 GE.21-01117

E. 40 In its late response, the Government merely states that Mr. Zefzafi was arrested in flagrante delicto. As it has already indicated, the Working Group considers that this argument is not supported by the facts of the present case, given the inconsistency of the Government’s response, in which it is stated both that the authorities were operating on instructions from the prosecutor in the place where Mr. Zefzafi was located and that Mr. Zefzafi was arrested in flagrante delicto.

E. 41 The Working Group recalls that article 19 (2) of the Covenant provides that everyone has the right to freedom of expression; this right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his or her choice. This right includes political discourse, commentary on public affairs and discussion of human rights.9 In this case, the Working Group considers that Mr. Zefzafi was exercising his rights to freedom of expression and peaceful assembly through his presence at a gathering during which the leader of a popular movement addressed a crowd of demonstrators.

E. 42 There is nothing to suggest – and the Government has not argued – that the restrictions to which the right to freedom of expression may be subject under articles 19 (3) and 21 of the Covenant apply in the present case. The Working Group is not convinced that the prosecution of Mr. Zefzafi was necessary to protect a legitimate interest under these provisions or that his conviction and sentence were a proportionate response to his peaceful activities. It is important to note that there is no evidence to suggest that Mr. Zefzafi’s behaviour at the time of his arrest could reasonably be considered to pose a threat to national security, public order, public health or morals, or the rights or reputations of others. In its resolution 12/16 (para. 5 (p)), the Human Rights Council called upon States to refrain from imposing restrictions under article 19 (3) of the Covenant that are not consistent with international human rights law. 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 the Special Rapporteur on the rights to freedom of peaceful assembly and of association.

E. 43 The Working Group thus finds that Mr. Zefzafi was arrested, detained and convicted for exercising his right to freedom of expression and peaceful assembly. The Working Group recalls that these freedoms are protected by articles 19 and 20 (1) of the Universal Declaration of Human Rights and articles 19 and 21 of the Covenant. The Working Group therefore concludes that the arrest and detention of Mr. Zefzafi were arbitrary under category II. iii. Category III

E. 44 As Mr. Zefzafi’s detention was arbitrary under category II, he should not have been tried; no trial should therefore have been held. However, since the trial has taken place and the source has submitted arguments in relation to category III, the Working Group will also consider those arguments.

E. 45 The Working Group notes that, according to the source, Mr. Zefzafi was convicted after being subjected to ill-treatment, physical violence, torture and threats of rape. The source also specifies that Mr. Zefzafi was forced to sign a record of statement without being aware of its content.

E. 46 In its late response, the Government denies that any act of torture was committed. It also asserts that Mr. Zefzafi only claimed for the first time to have been a victim of torture and ill-treatment when he appeared before the prosecutor on 29 May 2017, while he did not mention this allegation in the statement signed on 27 May 2017 following his interview by the criminal investigation service, in which, on the contrary, he acknowledged that he had been injured during his confrontation with the police as a result of the resistance he had offered. The Working Group notes that the Government has relied solely on the record of statement, which the source claims was signed under duress.

E. 47 The Working Group considers that the source has presented a credible prima facie case, which the Government has not refuted, that Mr. Zefzafi was subjected to torture during his detention. His treatment appears to violate the provisions of article 5 of the Universal 9 Human Rights Committee, general comment No. 34 (2011), para. 11. A/HRC/WGAD/2020/69 GE.21-01117 7 Declaration of Human Rights, article 7 of the Covenant and articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Morocco is a party.10 The Working Group therefore refers the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

E. 48 The source also claims that the prosecutor who heard the allegations of torture reported by the victim’s lawyer at the hearing on 29 May 2017 did not order any investigation despite the fact that the victim bore signs of violence. The Government affirms that, on the contrary, the prosecutor ordered a medical examination the same day, which the source has acknowledged in additional comments. The source nonetheless stresses that Mr. Zefzafi received only a very cursory examination and that the doctor supplied him with a blank medical certificate. Yet Mr. Zefzafi was sent to prison by the prosecutor on the day of the hearing, where he was examined by the prison doctor, who recorded signs of torture. The Working Group considers that the prosecutor’s failure to order an independent and transparent investigation constitutes a serious violation of paragraph 16 of the Guidelines on the Role of Prosecutors11 and articles 12, 13 and 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Working Group refers this case to the Special Rapporteur on the independence of judges and lawyers.

E. 49 The Working Group also notes the source’s allegations that Mr. Zefzafi was unable to meet with his lawyer to prepare his defence for his appearance before the prosecutor or prior to his hearing before the court of first instance. The Government asserts in its late response that Mr. Zefzafi was informed of his right to communicate with and be assisted by counsel from the moment of his arrest and that he was assisted by a defence team of 12 lawyers throughout the trial. However, the Government notes that Mr. Zefzafi did not ask to contact a lawyer during his time in police custody and that the prosecution service received requests for contact from members of Mr. Zefzafi’s defence team only after 24 hours. It adds that the notification of his rights was recorded in the relevant procedural documents, which were included in the case file and transmitted to the prosecution service. The Working Group recalls that all accused persons have the right to legal assistance and representation from the outset of their detention, including immediately after their arrest.12 The Government has not provided any evidence or information to refute this allegation, for example details of when and under what circumstances Mr. Zefzafi was able to meet with his lawyers, especially in the period immediately after his arrest and during his time in police custody. The Working Group therefore considers that Mr. Zefzafi was not given the opportunity to communicate in private with counsel of his own choosing in order to prepare his defence, in line with article 14 (3) (b) of the Covenant.

E. 50 The present case involves a person who was arrested, accused, tried and convicted

after signing a record of statement under duress. He was not assisted by a lawyer during his

interrogation. This leads the Working Group to conclude that Mr. Zefzafi’s trial was not fair.

51.

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

trial are of such gravity as to give Mr. Zefzafi’s arrest and detention an arbitrary character

under category III.

52.

Lastly, the source reports that many Hirak Rif members have been put on trial or

arrested and condemns the precarious conditions in the Rif region. According to the source,

membership of this popular movement was the sole reason for these arrests and trials.

However, the source has not provided sufficient evidence to enable the Working Group to

assess the allegation of arbitrary detention under category V.

10 A/HRC/27/48/Add.5, para. 63, 64 and 74 (noting that torture is practised and that law enforcement

officials use excessive force); and CCPR/C/MAR/CO/6, paras. 23–24.

11 Opinion No. 47/2017, para. 29.

12 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 (A/HRC/30/37, annex), principle 9

and guideline 8; see also CCPR/C/MAR/CO/6, paras. 25–26; CAT/C/MAR/CO/4, para. 7; and

A/HRC/45/16, para. 53.

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Final observations

53.

The source claims that Mr. Zefzafi’s detention conditions were deplorable. Apart from

the physical violence to which he was subjected during the seven months of his imprisonment,

Mr. Zefzafi was detained in harsh conditions, forced to sleep in a makeshift bed and not

permitted to have visits. In its late response, the Government notes that the detention

conditions were consistent with the relevant international standards and instruments.

54.

The Working Group is concerned about the reported detention conditions. Several

human rights mechanisms have documented the deplorable conditions in Moroccan prisons.13

The Working Group urges the Government to ensure that conditions in all places of

deprivation of liberty in Morocco are compatible with international standards. This includes

the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson

Mandela Rules), particularly rules 12 to 27 on living conditions and health care. The Working

Group also urges the Government to ensure that prisoners remain in contact with the outside

world, in line with rules 43 (3) and 58 of the Nelson Mandela Rules and principles 15 and 19

of the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment. To conclude, the Working Group takes this opportunity to remind the

Government of its obligation under article 10 (1) of the Covenant to ensure that all persons

deprived of their liberty are treated with humanity and with respect for their inherent dignity.

55.

Lastly, the Working Group notes the source’s allegation that, following his release,

Mr. Zefzafi lost his job owing to pressure placed on his employer by the Moroccan authorities.

According to the source, Mr. Zefzafi received death threats by telephone and was monitored

by plain-clothes police officers. He was refused administrative services when the officials

learned his name. The source stresses that Mr. Zefzafi decided to flee to France for fear of

reprisals against himself and his family. In its late response, the Government affirms that Mr.

Zefzafi was never threatened or monitored and that the authorities took no repressive

measures and exerted no pressure on him. According to the Government, he was able to leave

Morocco freely. Although the Working Group is unable make an assessment of these

allegations, it takes this opportunity to reaffirm that any form of reprisals is unacceptable.

Disposition

56.

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

The deprivation of liberty of Mourad Zefzafi, being in contravention of articles 3, 9,

10, 11 (1), 19 and 20 (1) of the Universal Declaration of Human Rights and articles 9,

14, 19 and 21 of the International Covenant on Civil and Political Rights, was arbitrary

and fell within categories I, II and III.

57.

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

to remedy the situation of Mr. Zefzafi without delay and bring it into conformity with the

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

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

58.

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

case, the appropriate remedy would be to accord Mr. Zefzafi an enforceable right to

compensation and other reparations, in accordance with international law.14

59.

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

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

Zefzafi and to take appropriate measures against those responsible for the violation of his

rights.

60.

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

the case for appropriate action to the Special Rapporteur on the promotion and protection of

the right to freedom of opinion and expression, the Special Rapporteur on the rights to

freedom of peaceful assembly and of association, the Special Rapporteur on torture and other

13 CCPR/C/MAR/CO/6, paras. 29–30; CAT/C/MAR/CO/4, para. 19; and A/HRC/22/53/Add.2, paras.

42–47.

14 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I), identifying the

comprehensive reparations to which victims of arbitrary deprivation of liberty are entitled.

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cruel, inhuman or degrading treatment or punishment and the Special Rapporteur on the

independence of judges and lawyers.

61.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

62.

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 compensation or other reparations have been made to Mr. Zefzafi;

(b)

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

Zefzafi’s rights and, if so, the outcome of the investigation;

(c)

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;

(d)

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

63.

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.

64.

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.

65.

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.15

[Adopted on 24 November 2020]

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

Volltext (verifizierbarer Originaltext)

GE.21-01117 (E) 190221 190221

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-ninth session, 23–27 November 2020

Opinion No. 69/2020 concerning Mourad Zefzafi (Morocco)

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.

In accordance with its methods of work (A/HRC/36/38), on 6 January 2020 the

Working Group transmitted to the Government of Morocco a communication concerning

Mourad Zefzafi. The Government submitted a late response on 10 April 2020. The State is a

party to the International Covenant on Civil and Political Rights.

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);

(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).

United Nations

A/HRC/WGAD/2020/69

General Assembly

Distr.: General

28 January 2021

English

Original: French

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Submissions

Communication from the source

Context

Mourad Zefzafi was born in 1986 in Al Hoceïma, Morocco. He works as a baker and

currently lives in France, where he has lodged an asylum application. He is an activist in the

Hirak Rif popular protest movement and is related to a leading figure in this movement, who

is currently incarcerated in Morocco.

Arrest and detention

The source reports that, on 28 October 2016, while Mr. Zefzafi was returning from

work in Al Hoceïma, in the north of Morocco, he witnessed an incident in front of the tribunal

de grande instance (court of major jurisdiction), during which police officers ordered that

the cargo of a truck transporting fish be destroyed by a waste collection vehicle and then

ordered the activation of the vehicle’s crusher while the owner of the cargo was inside, which

resulted in his death. A large crowd witnessed the incident, which triggered a wave of protests

and demonstrations in the city.

The source further states that this event gave rise to the Hirak Rif popular movement,

in the Rif region in the north of Morocco. A member of Mr. Zefzafi’s family was involved

in this movement from the beginning and was one of its leaders. On 26 May 2017, after seven

months of peaceful protest, the Al Hoceïma prosecution service ordered the immediate arrest

of this leader, which led to increasingly violent clashes between law enforcement officers

and demonstrators. Today, he remains in detention on account of his involvement.

The source goes on to explain that, on 26 May 2017, Mr. Zefzafi was in the company

of the above-mentioned family member, who was addressing a crowd of demonstrators from

the roof of his home. Police officers entered the house to search for this protest leader, who

immediately fled over the rooftops.

According to the source, Mr. Zefzafi, who was with relatives of the wanted person,

was then violently assaulted by some twenty police officers, who first hit him inside the house

and then took him outside while continuing to strike him with their metal helmets and put

him in a van, where they hit him again, some with their helmets and with shovel handles,

aiming at his face. Once they had arrived at the police station, a police officer and eight other

men continued to hit him until he lost consciousness.

The source reports that Mr. Zefzafi woke up handcuffed and surrounded by police

officers, who insulted him and made threats, including threats of rape. He then spent three

days in detention unable to sleep because of the pain. Moreover, he did not receive a single

meal and was not allowed to contact a lawyer or his family. His mobile telephone was

confiscated and a saliva sample was taken.

10.

The source adds that, on 29 May 2017, Mr. Zefzafi was brought before a prosecutor

with 24 other persons, with no consideration being given to his physical condition. He then

signed a record without being aware of its content and under psychological pressure due to

the torture to which he had been subjected. The prosecutor, although cognizant of Mr.

Zefzafi’s state of health, ordered that he be remanded in custody for participating in

unauthorized demonstrations, insulting and obstructing public officials, throwing stones at

public officials and damaging public property.

11.

According to the source, on 30 May 2017, Mr. Zefzafi appeared before Al Hoceïma

Court of First Instance with 24 other detainees. Lawyers from several cities in Morocco also

came to the hearing to defend them. The lawyers asked the court for clarifications about the

circumstances of the defendants’ time in police custody, in particular the lack of medical

assistance. However, Mr. Zefzafi was unable to speak to a lawyer prior to the hearing and

was therefore unable to prepare his defence.

12.

The source indicates that, on 14 June 2017, Mr. Zefzafi was sentenced to 18 months’

imprisonment. The source explains that Mr. Zefzafi’s detention conditions in the Al Hoceïma

prison were dire; he had no mattress or blanket, was not allowed any visits, could make only

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one telephone call per week and was regularly hit by the guards. He was subsequently

transferred to the Fez prison. On 16 June 2017, Mr. Zefzafi was seen by a doctor in prison,

who recorded findings of physical abuse.

13.

The source adds that, on 17 and 18 July 2017, Mr. Zefzafi was brought before a court

of appeal, which reduced his prison sentence to seven months.

14.

The source affirms that Mr. Zefzafi was released on 26 December 2017, having served

the reduced sentence handed down by the court of appeal.

15.

The source further asserts that, following his release, Mr. Zefzafi lost his job because

of pressure placed on his employer by the Moroccan authorities. He received death threats

by telephone and was monitored by plain-clothes police officers. He was refused

administrative services when the officials learned his name.

16.

The source points out that Mr. Zefzafi decided to flee to France for fear of reprisals

against himself and his family.

Legal analysis

17.

The source states that Mr. Zefzafi was the victim of police violence tantamount to

torture or inhuman or degrading treatment. No evidence of his involvement in any criminal

offence has been produced.

18.

Moreover, the source adds that the arrest, conviction and imprisonment of Mr. Zefzafi

resulted exclusively from the exercise of his right to freedom of expression and assembly,

owing to his presence alongside the above-mentioned family member.

19.

Lastly, the source asserts that Mr. Zefzafi did not enjoy his right to a fair trial, in part

because he had no opportunity to prepare his defence. Among other violations, Mr. Zefzafi

was arrested without being informed promptly of the charges against him, had no access to

the evidence against him and could not speak to a lawyer in private within a reasonable time.

20.

In the light of the foregoing, the source asserts that Mr. Zefzafi’s detention was

arbitrary.

Response from the Government

21.

On 6 January 2020, the Working Group transmitted to the Government of Morocco a

communication in which it requested detailed information about Mr. Zefzafi’s situation by 6

March 2020 at the latest. Specifically, the Working Group requested the Government to

clarify the legal provisions justifying his deprivation of liberty and their compatibility with

the obligations of Morocco under international human rights law, in particular with the

treaties that the State has ratified.

22.

On 3 March 2020, the Government requested an initial one-month extension of the

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

to 6 April 2020.

23.

On 8 April 2020, the Government requested a second extension. This was not granted.

Under paragraph 16 of the Working Group’s methods of work, only a single one-month

extension of the deadline may be granted.

24.

On 10 April 2020, 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. In accordance with paragraph 16 of its methods of work, the Working

Group is rendering its opinion on the basis of all the information that it has obtained.

Discussion

25.

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.

26.

At the outset, the Working Group notes that Mr. Zefzafi was released on 26 December

2017, at the end of his sentence, which had been reduced on appeal. In accordance with

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paragraph 17 (a) of its methods of work, the Working Group reserves the right to render an

opinion on whether or not a deprivation of liberty was arbitrary, notwithstanding the release

of the person concerned. In the present case, Mr. Zefzafi is reported to have been the victim

of serious human rights violations, particularly in that he was detained for exercising his right

to freedom of expression and assembly and did not enjoy his right to a fair trial. In these

circumstances, the Working Group considers it important to render an opinion on his case.

27.

In determining whether Mr. Zefzafi’s deprivation of liberty was arbitrary, the

Working Group has regard to the principles established in its jurisprudence for dealing 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 (A/HRC/19/57, para. 68). As

the Working Group has often pointed out, including in cases concerning Morocco,1 it is not

enough to make a formal objection to the allegations: the State is in possession of all the

material relating to the proceedings and is therefore able to provide any information that it

deems necessary to support each of its counterarguments.

28.

In the complaint, the source presents arguments relating to three categories of arbitrary

detention.

Category I

29.

The source asserts that Mr. Zefzafi was arrested without being informed promptly of

the charges against him. In its late response, the Government states that Mr. Zefzafi was

immediately informed of the grounds for his arrest. According to the Government, Mr.

Zefzafi was arrested in flagrante delicto, owing to his direct involvement in an assault on law

enforcement officials and damage to public property.

30.

In this regard, the Working Group notes that it has consistently found that a person is

arrested in flagrante delicto if he or she is apprehended during the commission of a crime or

immediately thereafter, or is arrested in hot pursuit shortly after a crime has been committed.2

31.

The Working Group is not convinced by the justification of in flagrante delicto

invoked by the Government. The information supplied by the source indicates that Mr.

Zefzafi was on the roof of the house listening peacefully to his family member addressing

the crowd, without using force, and that there were clashes in the street and on the rooftops

between law enforcement officials and demonstrators. Although the law enforcement

officials came to ensure the safety of the demonstrations, the Government has not shown that

Mr. Zefzafi was involved in these clashes and was thus arrested in flagrante delicto. Given

the existence of credible allegations from the source, the burden of proof lies with the

Government.

32.

The Government also claims that the operation at the home of Mr. Zefzafi’s family

member was conducted on the basis of instructions issued by the chief prosecutor. However,

the Working Group notes that it is inconsistent to state, as the Government does, that the

operation was conducted on instructions from the prosecutor while also alleging that Mr.

Zefzafi was arrested in flagrante delicto. In view of the above, the Working Group considers

that the circumstances of the case cannot be deemed to show the flagrant nature of the offence,

as argued by the Government, and concludes that Mr. Zefzafi’s arrest required a warrant.

33.

Moreover, the source asserts that Mr. Zefzafi was not informed of the reasons for his

arrest or the charges against him. In its late response, the Government simply denies this

allegation without offering any information or explanation.

34.

The Working Group recalls that, according to article 9 (1) of the Covenant, no one

may be deprived of his or her liberty except on such grounds and in accordance with such

procedure as are established by law. Article 9 (2) of the Covenant provides that anyone who

is arrested must be informed, at the time of arrest, of the reasons for his or her arrest. As the

Working Group has previously stated, in order for a deprivation of liberty to have a legal

basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must

1 See, in particular, opinions No. 11/2017 and No. 27/2016.

2 Opinion No. 9/2018, para. 38.

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invoke that legal basis and apply it to the circumstances of the case through an arrest warrant.3

Mr. Zefzafi was arrested without a warrant, in violation of article 9 (1) of the Covenant. In

addition, Mr. Zefzafi was not informed of the reasons for his arrest, in violation of article 9

(2) of the Covenant. The Working Group considers that an arrest is arbitrary when it is made

without the arrested person being informed of the reasons for the arrest.4 In this case, the

Working Group concludes that the failure to show an arrest warrant at the time of the arrest

and to provide information about the grounds for the arrest contravenes article 9 of the

Universal Declaration of Human Rights and article 9 of the Covenant.

35.

The source further states that Mr. Zefzafi was placed in detention and was only

brought before the prosecutor 72 hours after his arrest. The Government claims that,

following Mr. Zefzafi’s arrest on 26 May 2017, he was taken into police custody for 48 hours,

which was extended for 24 hours with written authorization from the prosecution service. He

was then brought before the prosecutor on 29 May 2017, prior to the expiration of the lawful

period of police custody. Mr. Zefzafi was also brought before Al Hoceïma Court of First

Instance, on 30 May 2017.

36.

The Working Group recalls that, in accordance with article 9 (3) of the Covenant,

anyone arrested or detained on a criminal charge must be brought promptly before a judge or

other officer authorized by law, to allow that person to challenge the legality of his or her

detention. As the Human Rights Committee has stated, 48 hours is ordinarily sufficient to

satisfy the requirement of bringing a detainee “promptly” before a judge following his or her

arrest, and any longer delay must remain absolutely exceptional and be justified under the

circumstances. 5 In the absence of such justification, the Working Group finds that the

Government violated its obligation under article 9 (3) of the Covenant by failing to bring Mr.

Zefzafi before a judge until four days after his arrest. The Government notes in its late

response that Mr. Zefzafi’s detention was extended by the prosecutor on 28 May 2017 and

that Mr. Zefzafi was brought before the prosecution service on 29 May 2017. However, as

the Working Group has previously noted, a prosecuting body cannot be considered a judicial

authority for the purposes of article 9 (3) of the Covenant.6

37.

Lastly, the source reports that Mr. Zefzafi’s mobile telephone was confiscated and

that a saliva sample was taken. In its late response, the Government does not specifically

challenge these allegations and, in particular, does not indicate whether there was a court

order to this effect.7 Without any information from the Government regarding the legality of

these measures, the Working Group considers that they cannot constitute the legal basis for

a decision to detain Mr. Zefzafi.8

38.

In the light of these violations of article 9 of the Universal Declaration of Human

Rights and article 9 of the Covenant, the Working Group concludes that there was no legal

basis for Mr. Zefzafi’s detention and that it was therefore arbitrary under category I.

ii.

Category II

39.

The source affirms that Mr. Zefzafi was detained and convicted for his presumed

exercise of his right to freedom of expression and assembly, owing to his presence alongside

his family member, who had been involved in Hirak Rif from the beginning and was one of

its leaders. The source explains that, on 26 May 2017, Mr. Zefzafi was in the company of

this family member, who was addressing a crowd of demonstrators from the roof of his home.

Police officers entered the house to search for this protest leader, who immediately fled over

the rooftops.

3 Opinions No. 25/2020, para. 34; No. 46/2018, para. 48; No. 36/2018, para. 40; No. 10/2018, para. 45;

and No. 38/2013, para. 23.

4 Opinions No. 83/2019, para. 50; No. 46/2019, para. 51; and No. 10/2015, para. 34.

5 Human Rights Committee, general comment No. 35 (2014), para. 33.

6 Ibid., para. 32. See also opinions No. 41/2020, para. 60; No. 5/2020, para. 72; and No. 14/2015, para.

28. See also A/HRC/45/16/Add.1, para. 35.

7 See, for example, opinion No. 83/2018, paragraphs 44 and 45, in which it is found that the

confiscation of a mobile telephone constituted a violation of article 9 (1) of the Covenant.

8 Opinion No. 78/2018, paras. 68–69.

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40.

In its late response, the Government merely states that Mr. Zefzafi was arrested in

flagrante delicto. As it has already indicated, the Working Group considers that this argument

is not supported by the facts of the present case, given the inconsistency of the Government’s

response, in which it is stated both that the authorities were operating on instructions from

the prosecutor in the place where Mr. Zefzafi was located and that Mr. Zefzafi was arrested

in flagrante delicto.

41.

The Working Group recalls that article 19 (2) of the Covenant provides that everyone

has the right to freedom of expression; this right includes the freedom to seek, receive and

impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or

in print, in the form of art or through any other media of his or her choice. This right includes

political discourse, commentary on public affairs and discussion of human rights.9 In this

case, the Working Group considers that Mr. Zefzafi was exercising his rights to freedom of

expression and peaceful assembly through his presence at a gathering during which the leader

of a popular movement addressed a crowd of demonstrators.

42.

There is nothing to suggest – and the Government has not argued – that the restrictions

to which the right to freedom of expression may be subject under articles 19 (3) and 21 of

the Covenant apply in the present case. The Working Group is not convinced that the

prosecution of Mr. Zefzafi was necessary to protect a legitimate interest under these

provisions or that his conviction and sentence were a proportionate response to his peaceful

activities. It is important to note that there is no evidence to suggest that Mr. Zefzafi’s

behaviour at the time of his arrest could reasonably be considered to pose a threat to national

security, public order, public health or morals, or the rights or reputations of others. In its

resolution 12/16 (para. 5 (p)), the Human Rights Council called upon States to refrain from

imposing restrictions under article 19 (3) of the Covenant that are not consistent with

international human rights law. 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 the Special Rapporteur on the rights to freedom of peaceful assembly and of association.

43.

The Working Group thus finds that Mr. Zefzafi was arrested, detained and convicted

for exercising his right to freedom of expression and peaceful assembly. The Working Group

recalls that these freedoms are protected by articles 19 and 20 (1) of the Universal Declaration

of Human Rights and articles 19 and 21 of the Covenant. The Working Group therefore

concludes that the arrest and detention of Mr. Zefzafi were arbitrary under category II.

iii.

Category III

44.

As Mr. Zefzafi’s detention was arbitrary under category II, he should not have been

tried; no trial should therefore have been held. However, since the trial has taken place and

the source has submitted arguments in relation to category III, the Working Group will also

consider those arguments.

45.

The Working Group notes that, according to the source, Mr. Zefzafi was convicted

after being subjected to ill-treatment, physical violence, torture and threats of rape. The

source also specifies that Mr. Zefzafi was forced to sign a record of statement without being

aware of its content.

46.

In its late response, the Government denies that any act of torture was committed. It

also asserts that Mr. Zefzafi only claimed for the first time to have been a victim of torture

and ill-treatment when he appeared before the prosecutor on 29 May 2017, while he did not

mention this allegation in the statement signed on 27 May 2017 following his interview by

the criminal investigation service, in which, on the contrary, he acknowledged that he had

been injured during his confrontation with the police as a result of the resistance he had

offered. The Working Group notes that the Government has relied solely on the record of

statement, which the source claims was signed under duress.

47.

The Working Group considers that the source has presented a credible prima facie

case, which the Government has not refuted, that Mr. Zefzafi was subjected to torture during

his detention. His treatment appears to violate the provisions of article 5 of the Universal

9 Human Rights Committee, general comment No. 34 (2011), para. 11.

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Declaration of Human Rights, article 7 of the Covenant and articles 2 and 16 of the

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

Punishment, to which Morocco is a party.10 The Working Group therefore refers the present

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

punishment.

48.

The source also claims that the prosecutor who heard the allegations of torture

reported by the victim’s lawyer at the hearing on 29 May 2017 did not order any investigation

despite the fact that the victim bore signs of violence. The Government affirms that, on the

contrary, the prosecutor ordered a medical examination the same day, which the source has

acknowledged in additional comments. The source nonetheless stresses that Mr. Zefzafi

received only a very cursory examination and that the doctor supplied him with a blank

medical certificate. Yet Mr. Zefzafi was sent to prison by the prosecutor on the day of the

hearing, where he was examined by the prison doctor, who recorded signs of torture. The

Working Group considers that the prosecutor’s failure to order an independent and

transparent investigation constitutes a serious violation of paragraph 16 of the Guidelines on

the Role of Prosecutors11 and articles 12, 13 and 14 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment. The Working Group refers

this case to the Special Rapporteur on the independence of judges and lawyers.

49.

The Working Group also notes the source’s allegations that Mr. Zefzafi was unable to

meet with his lawyer to prepare his defence for his appearance before the prosecutor or prior

to his hearing before the court of first instance. The Government asserts in its late response

that Mr. Zefzafi was informed of his right to communicate with and be assisted by counsel

from the moment of his arrest and that he was assisted by a defence team of 12 lawyers

throughout the trial. However, the Government notes that Mr. Zefzafi did not ask to contact

a lawyer during his time in police custody and that the prosecution service received requests

for contact from members of Mr. Zefzafi’s defence team only after 24 hours. It adds that the

notification of his rights was recorded in the relevant procedural documents, which were

included in the case file and transmitted to the prosecution service. The Working Group

recalls that all accused persons have the right to legal assistance and representation from the

outset of their detention, including immediately after their arrest.12 The Government has not

provided any evidence or information to refute this allegation, for example details of when

and under what circumstances Mr. Zefzafi was able to meet with his lawyers, especially in

the period immediately after his arrest and during his time in police custody. The Working

Group therefore considers that Mr. Zefzafi was not given the opportunity to communicate in

private with counsel of his own choosing in order to prepare his defence, in line with article

14 (3) (b) of the Covenant.

50.

The present case involves a person who was arrested, accused, tried and convicted