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.22-01632 (E) 210322 010422
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session (15–19 November 2021)
Opinion No. 46/2021, concerning Yahya Mohamed Elhafed Iaazza
(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,1 on 5 February 2021 the Working Group
transmitted to the Government of Morocco a communication concerning Yahya Mohamed
Elhafed Iaazza. The Government replied to the communication on 6 April 2021. 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);
(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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/46
General Assembly
Distr.: General
8 February 2022
English
Original: French
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Submissions
Communication from the source
4.
Yahya Mohamed Elhafed Iaazza, born in 1966, is a Saharan human rights defender
and the President of the Tan-Tan branch of the Collectif des défenseurs sahraouis des droits
de l’homme. He is married and has three children.
a.
Context
5.
According to the source, Mr. Iaazza was arrested in connection with the Saharan
uprising in May 2005. As a prominent Saharan activist in the town of Tan-Tan, Mr. Iaazza is
said to have played an important role in the uprising for the independence of Western Sahara.
He has reportedly always been involved in organizing peaceful demonstrations for the
independence of Western Sahara, working on human rights issues related to political
prisoners, police violence and victims of torture.
6.
The source reports that a demonstration is held every year on 27 February, the
anniversary of the proclamation of the “Sahrawi Arab Democratic Republic”. In 2008, Mr.
Iaazza allegedly participated in the organization of the demonstration but did not attend it
because he was working in his shop.
7.
The source says that the participants carried flags during the demonstration. The
police arrived shortly after it began and reportedly threw stones at the demonstrators. The
demonstrators responded by throwing stones back at the police. A police officer was
reportedly hit by a stone that caused fatal injuries. The source states that the identity of the
person who caused the police officer’s death is not known.
b.
Arrest and detention
8.
Mr. Iaazza was reportedly arrested on the evening of 29 February 2008, two days after
the demonstration, as he was leaving his shop in Tan-Tan with his 6-year-old son. He was
not physically assaulted but was told that the police had some questions for him and wanted
him to go to the police station. The officers allegedly did not show him a warrant or tell him
why he was being arrested. Mr. Iaazza supposedly then voluntarily entered the police vehicle
and was taken to the police station.
9.
According to the source, this arrest formed part of a wave of arrests of 20 Saharan
activists, 8 of whom were tried alongside Mr. Iaazza. The arrests constituted a collective
punishment inflicted on the Saharan community of Tan-Tan.
10.
Mr. Iaazza was taken to the interrogation room in the police station and subjected to
torture involving rape, beatings, electric shocks and the tearing of his fingernails and toenails.
He was also asked political questions about his links to the Frente Popular para la Liberación
de Saguía el-Hamra y de Río de Oro (Frente POLISARIO) and the Saharan Ministry for the
Occupied Territories. Mr. Iaazza spent four days naked, without being given any food or
water and without access to a lawyer.
11.
Mr. Iaazza learned of the charges against him when he appeared before the Crown
Prosecutor of Agadir on 4 March 2008. The source points out that Mr. Iaazza and the other
detainees bore scars as a result of being tortured, which was reported to the Crown
Prosecutor. However, the Crown Prosecutor did not request a medical examination or an
investigation. The source states that it is not clear whether Mr. Iaazza’s arrest was ordered
by a judicial body or by the Crown Prosecutor.
12.
Mr. Iaazza was then transferred to a prison for a month and kept isolated from the
outside world while being subjected to torture and inhuman and degrading treatment.
According to the source, Mr. Iaazza did not know where he was or even that he was in a
prison.2 He was not permitted to contact his lawyer or his family, who did not learn of his
whereabouts until April 2008.
2 According to the source, he was in Anzakan prison.
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13.
Subsequently, Mr. Iaazza, in very poor physical condition, was transferred to Aït
Melloul prison and placed in an overcrowded cell with convicted prisoners without being
allowed to see or call his family. He was allowed to contact his lawyer but not to
communicate privately with him since someone was always listening to his calls and prison
guards were present in the room to listen to conversations during visits.
14.
Mr. Iaazza went on hunger strike and was hospitalized shortly afterwards. He was
then taken to a cell containing only seven prisoners.
c.
Trial proceedings
15.
According to the source, Mr. Iaazza was brought before Agadir Court of First Instance
along with eight other Saharan activists on 14 August 2008. The proceedings were postponed
until 5 September 2008 and then further postponed until 9 October 2008. During the hearing,
which was attended by international observers, the defendants chanted slogans proclaiming
the Saharan people’s right to self-determination.
16.
During the trial, the defence argued that Mr. Iaazza’s arrest had not been in
compliance with the law, that he had been subjected to torture and that he still bore visible
signs of it. Neither the judge nor the Crown Prosecutor made any reference to these signs of
torture and the defence was not permitted to challenge the Crown Prosecutor’s comments.
As the defendants were questioned as a group, the proceedings resembled a mass trial in
which the cases were not dealt with individually and police records and confessions,
corroborated by the police, constituted the main evidence. The statements were contradictory
and the judge refused to call any witnesses for the defence.
17.
The defence also argued that all the defendants had been arrested solely because of
their human rights activism and support for the Saharan people’s right to self-determination.
During the trial, a defence lawyer shocked the judges when he stated that Tan-Tan was part
of Western Sahara and was forced to retract the statement to avoid criminal prosecution.
18.
The source reports that Mr. Iaazza was not convicted of murder but was sentenced to
15 years’ imprisonment for bringing together Saharan activists in a demonstration that led to
the death of a police officer.
19.
After Mr. Iaazza’s conviction, the ill-treatment resumed. He was routinely subjected
to restrictions on visits from his family members (who were allowed only to give him money),
the use of the telephone, access to the library and shop, and the possibility of having his
belongings collected. He also had problems with prison guards and the prison administration.
In October 2008, Mr. Iaazza was allowed to call and see his family for the first time.
20.
The appeal proceedings started in the spring of 2009 but the hearings were postponed
several times. Mr. Iaazza spent 62 days on hunger strike, which left him with after-effects.
The first hearing, scheduled for 1 April 2009, was postponed until 12 May 2009 as one of the
defendants was absent. It took place under the same circumstances, and with the same
restrictions on the defence, as the first instance hearing. International observers were present
at both proceedings. The judge accused Mr. Iaazza of being a separatist who had paid people
to attend the demonstration.
21.
The appeal court upheld Mr. Iaazza’s conviction and sentenced the other defendants
in the same case to 4 years’ imprisonment, increasing the sentence for three of them.
22.
The source reports that, in order to punish Mr. Iaazza for his opinions, the authorities
refused to grant him any of the prison transfers that he requested. He is currently being held
in Bouizakarne prison, where his life is in danger owing to the coronavirus disease (COVID-
19) pandemic and health problems related to torture, continued ill-treatment and hunger
strikes. He also suffers from asthma and rheumatism and is subjected to ongoing racial
discrimination and systematic punishment for his opinions.
23.
On 9 October 2020, Mr. Iaazza’s situation dramatically worsened. He was placed in
a cell with a prisoner who tested positive for COVID-19 and then, on October 13, was placed
in solitary confinement and deprived of all contact with the outside world. Nothing more was
heard of Mr. Iaazza until 9 December 2020. In early November 2020, the prison governor
told Mr. Iaazza’s family that his situation was “normal” and that he had simply “chosen not
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to use the telephone for three weeks”. From 9 December 2020 onward, he was allowed to
make three phone calls per week for a few minutes, these being the only times that he was
allowed out of his cell.
24.
On 23 December 2020, the prison governor explicitly stated that Mr. Iaazza would
not receive any form of medical treatment and would not be allowed to go to hospital,
regardless of the severity of his illness. He also made death threats against Mr. Iaazza and
cut off the electricity in his cell. On 6 January 2021, two other prisoners were placed in Mr.
Iaazza’s cell.
d.
Legal analysis
25.
The source argues that Mr. Iaazza’s deprivation of liberty falls within categories I, II,
III and V of the Working Group’s methods of work and should also be assessed in the light
of international humanitarian law, which it considers to be applicable to this case.
26.
The source considers that the Saharans have the right to self-determination3 and are
protected persons under the first paragraph of article 4 of the Geneva Convention relative to
the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).
i.
Category I
27.
The source claims that Mr. Iaazza’s arrest was unlawful, that he was held
incommunicado for a prolonged period, that he was subjected to enforced disappearance
during his first month of detention and to various forms of torture. The source also believes
that Mr. Iaazza’s detention was not ordered by a judicial body.
28.
Therefore, the formal procedures necessary to establish the legal basis for his arrest
were not followed, rendering the arrest and detention devoid of any legal basis, in violation
of article 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant.
ii.
Category II
29.
According to the source, Mr. Iaazza was held responsible for the death of the police
officer following the demonstration of 27 February 2008, even though he was working in his
shop that day and did not attend the demonstration. The source reports that celebrations of
the Saharan national day are inherently peaceful, with demonstrators carrying the Western
Saharan flag and celebrating their national holiday, but are usually met with massive
crackdowns and police violence. The entire town of Tan-Tan was subjected to collective
punishment after Mr. Iaazza’s arrest and the demonstration on 27 February 2008.
30.
The source believes that Mr. Iaazza was arrested, tortured and detained solely because
he is a Saharan human rights defender and has campaigned for the independence of Western
Sahara and its people’s right to self-determination. In this connection, the source notes the
following: (a) Mr. Iaazza was subjected to questioning of a political nature; (b) the police
records state that he was a “dangerous separatist” who belonged to a criminal organization
and should be punished to make an “example” of him; (c) the Moroccan judicial system is
used to silence dissidents who oppose the regime; and (d) the proceedings constituted a sham
trial.
31.
According to the source, Mr. Iaazza’s deprivation of liberty is arbitrary under category
II in that it constitutes a violation of humanitarian law and of his rights to freedom of
expression and assembly, which are guaranteed under articles 19 and 21 of the Covenant.
iii.
Category III
32.
According to the source, neither the judge nor the Crown Prosecutor was independent
or impartial, no action was taken in response to the allegations of torture, and Mr. Iaazza was
prosecuted solely because he had advocated for the right to self-determination in a country
where the justice system is used to punish persons considered to be “separatists”.
3 The source refers to the case law on Western Sahara of the International Court of Justice and to
General Assembly resolutions 1514 (XV), 1541 (XV) and 2625 (XXV).
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33.
The source also argues that Mr. Iaazza was questioned alongside other defendants, in
violation of the principle of individual responsibility. The political nature of the trial is
illustrated by the fact that the courtroom was surrounded by police officers, which could
constitute a violation of the right to a public hearing. The source also notes that the defence
was required to retract a statement in order to avoid criminal proceedings and that Mr. Iaazza
was unable to communicate with his lawyers or submit evidence that would exonerate him.
34.
Therefore, the source considers that Mr. Iaazza was subjected to a politically
motivated prosecution and was not heard by an independent and impartial tribunal, in
violation of article 14 (1) of the Covenant. The source also believes that the court failed to
consider the fact that, as a Saharan, Mr. Iaazza has the status of a protected person under the
Fourth Geneva Convention.
35.
The source argues that confessions signed under torture were the only evidence used
against Mr. Iaazza, in violation of articles 7 and 14 (3) (g) of the Covenant and article 75 (4)
(f) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I). The judge ignored
the evidence of torture and refused to admit exculpatory evidence. He also refused to call or
hear witnesses who could attest to Mr. Iaazza’s absence from the demonstration, arguing that
police records already proved that Mr. Iaazza had organized the peaceful demonstration and
that he had paid “separatists” to attend it.
36.
Furthermore, Mr. Iaazza was neither shown an arrest warrant nor informed of the
reasons for his arrest. He was detained in an unknown location, while being subjected to
torture, between 29 February and 4 March 2008, on which date he was brought before the
Crown Prosecutor. The source concludes that the authorities failed to inform the accused of
the nature and cause of the charge against him, in violation of articles 9 (2) and 14 (3) (a) of
the Covenant and article 71 of the Fourth Geneva Convention.
37.
Mr. Iaazza was also held in complete isolation between 29 February 2008, when he
was arrested, until his transfer to Aït Melloul prison in April 2008. Between April and
October 2008, he was prevented from communicating with his lawyer and preparing his case
and was subjected to inhuman treatment in prison. The authorities also interfered with his
right to communicate with his lawyer in a confidential manner by listening in on
conversations and interrupting meetings. The source claims that these circumstances raise
doubts over the independence of the judges, in violation of article 14 (3) (b) of the Covenant.
38.
The source considers that the criminal proceedings brought against Mr. Iaazza
constitute a separate violation of the right to a fair trial enshrined in articles 5 and 66 to 75 of
the Fourth Geneva Convention.
iv.
Category V
39.
According to the source, Mr. Iaazza was arrested and imprisoned because of his
Saharan identity and his political views on the Saharan people’s right to self-determination,
in violation of articles 1, 2, 26 and 27 of the Covenant, article 47 of the Fourth Geneva
Convention and article 45 of the Regulations respecting the Laws and Customs of War on
Land. Mr. Iaazza’s case is symbolic of the systematic and systemic persecution of all
Saharans.
Response from the Government
40.
On 5 February 2021, the Working Group transmitted a communication concerning
Mr. Iaazza to the Government, requesting it to provide detailed information about him by 6
April 2021 and to guarantee his physical and mental integrity.
41.
On 6 April 2021, the Government sent its response, in which it stated that the
Moroccan authorities have always made efforts to interact constructively with special
procedure mandate holders. However, the Government regrets to note that individual
complaints mechanisms are being used for purposes other than those originally provided for
in their mandates. It also believes that, for the person concerned, the present communication
mainly serves as a means of relaying a purely political plea.
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42.
According to the Government, Mr. Iaazza4 is a Moroccan citizen who was born in
1966 in Tan-Tan, where he has his home. Before his arrest, he worked as a shopkeeper. In
1993, he was convicted of defaming and insulting a public official, damaging public property,
and assault and battery and, in 2008, he was convicted following his alleged involvement in
events leading to the death of a police officer.
43.
On 26 February 2008, armed groups gathered on a public road in Tan-Tan to lure the
police into an ambush that had allegedly been planned. Stone blocks were placed on the
public road to force the authorities to leave their vehicles in order to clear the way, after
which they were attacked.
44.
During the attack, a police officer sustained a serious injury to the face, requiring him
to be taken to the local hospital, then to the military hospital in Guelmim, and finally to the
Ibn Sina military hospital in Marrakech. On 3 March 2008, the police officer died of his
injuries. On 1 March 2008, following judicial investigations and the establishment of Mr.
Iaazza’s direct involvement in the events, he was arrested in a public place by the Tan-Tan
police, who informed him of the reasons for his arrest.
45.
He was immediately taken to criminal investigation police premises, where he was
held in custody from 3 p.m. on 1 March 2008 until 11 a.m. on 4 March 2008, his custody
having been extended on 3 March 2008 with the written authorization of the public
prosecutor’s office and in accordance with article 80 of the Code of Criminal Procedure.
46.
His family was notified of his arrest in accordance with article 67 of the Code of
Criminal Procedure and article 9 of the Covenant. On 4 March 2008, Mr. Iaazza was brought
before the Crown Prosecutor General of the Agadir Court of Appeal, who filed an application
for an investigation into Mr. Iaazza’s involvement in the events of 26 February 2008.
47.
According to the Government, the investigating judge decided to prosecute Mr. Iaazza
for criminal association, placing objects on the public highway with a view to obstructing
traffic, violence against a public official resulting in his death, participation in these acts,
armed gathering, and rebellion, in accordance with articles 129, 267, 293, 294, 300 and 591
of the Criminal Code and article 20 of the Royal Decree of 15 November 1958. On 9 October
2008, the case was referred to the criminal chamber of first instance of Agadir Court of
Appeal, which sentenced Mr. Iaazza to 15 years’ imprisonment after upholding all the
charges against him and deciding not to convict him of criminal association. The court also
decided to reclassify the offence of “violence against a public official, in the exercise of his
duties, resulting in his death” as “incitement to rebellion leading to violence resulting in
death”, in accordance with articles 403.2 and 405.2 of the Code of Criminal Procedure.
48.
Mr. Iaazza benefited from mitigating circumstances under article 147 of the Criminal
Code, as the legally enforceable penalty was life imprisonment. This judgment, which, on 24
June 2009, was upheld on appeal by the criminal chamber of appeal of the Agadir Court of
Appeal, has not been the subject of an appeal by way of cassation.
49.
The Government notes that, under article 23 of the Constitution, national law and the
relevant provisions of the Covenant, including article 9, no person may be arbitrarily arrested
or detained. According to the Government, the police arrested Mr. Iaazza on 1 March 2008,
not on 29 February, and immediately informed him of the reasons for his arrest. On the
instructions of the public prosecutor’s office attached to the Agadir Court of Appeal, and
after eight accomplices had identified Mr. Iaazza as the main instigator of the disturbances
that took place on the evening of 26 February 2008, he was arrested as part of an investigation
initiated under article 80 of the Code of Criminal Procedure.
50.
Furthermore, the Government contests the claim that Mr. Iaazza was detained in an
unknown location between 29 February and 4 March 2008 and tortured. In its view, this
allegation corresponds to the period from 1 to 4 March 2008, when he was in police custody.
51.
Mr. Iaazza did not raise the question of his alleged ill-treatment, either before the
Crown Prosecutor, during the hearing held on 3 March 2008 to extend his police custody
under article 80 of the Code of Criminal Procedure, or subsequently, during his appearance
4 In its submission, the Government uses the spelling Yahya Iaaza.
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before the investigating judge, despite the fact that his lawyer was present during his
extensive hearing.
52.
Mr. Iaazza also did not ask to speak to a lawyer following the extension of his police
custody. The Government notes that the previous version of article 66 of the Code of Criminal
Procedure did not expressly require the authorities to inform persons of the reasons for their
arrest or their right to remain silent, communicate with a lawyer and receive legal assistance,
which is why Mr. Iaazza was not informed of these matters at the preliminary hearing.5
53.
Under article 134 of the Code of Criminal Procedure, the investigating judge informs
accused persons of their right to choose a lawyer immediately and appoints a lawyer if no
choice is made and the accused person so requests. Mr. Iaazza waived his right to be assisted
by a lawyer during the pretrial questioning on 4 March 2008, as is recorded in the minutes.
On 27 May 2008, he appeared before the investigating judge at an extensive hearing, this
time in the presence of his lawyer.
54.
After being confronted with the evidence, Mr. Iaazza clearly and distinctly admitted
to having played an active role in coordinating the armed gatherings and demonstrations in
Tan-Tan and to having deliberately incited others to participate in them, thereby undermining
public order. The Government therefore considers as unfounded the allegation that Mr.
Iaazza’s detention lacked a legal basis and falls within category I.
55.
The Government categorically rejects the allegations that Mr. Iaazza’s arrest,
prosecution and conviction are related to his right to freedom of expression, as guaranteed in
article 19 of the Covenant. The armed gathering on the public highway, the barricade erected
on the road, the obstruction of traffic and the incitement to rebellion resulting in death cannot
be equated with the expression of any opinion and cannot result from such expression or be
justified by it. Contrary to the source’s claim, Mr. Iaazza’s arrest and prosecution were not
based on his activism but on investigations conducted by the police on the instructions of a
judicial authority, which established his direct and effective involvement in criminal acts
punishable by law.
56.
According to the Government, all fundamental rights related to Mr. Iaazza’s arrest,
detention and defence were respected in accordance with the Constitution, Moroccan law and
the relevant provisions of the Covenant.
57.
After he had been questioned, Mr. Iaazza refused to sign the records of his arrest and
hearing, which contained his statements, without giving any reason for his refusal. This
refusal was set down in the records in question, in accordance with article 67.2 of the Code
of Criminal Procedure.
58.
When the Crown Prosecutor was informed of the acts of torture, at the hearing held
on 4 March 2008, he referred Mr. Iaazza to the investigating judge on the same day. However,
the judge did not notice or detect anything that might have prompted him to investigate the
allegations. Mr. Iaazza did not raise the matter before the judge.
59.
In accordance with articles 73 and 74 of the Code of Criminal Procedure, when anyone
is brought before the Crown Prosecutor, the prosecutor is required to ensure that the person
undergoes a medical examination, either at his or her request or because signs of torture or
ill-treatment have been detected. Article 293 of the Code of Criminal Procedure provides that
no confession extracted through the use of violence or coercion is admissible in court.
According to the Government, it was up to the judge alone, on the basis of his or her
assessment and personal conviction, to decide whether or not to order a medical examination.
60.
The Government claims that Mr. Iaazza was assisted by a lawyer during his extensive
hearing before the investigating judge although he voluntarily waived the right to such
assistance during the preliminary hearing. In addition, his lawyer visited him in Inezgane
prison on 13 March 2008. Foreign jurists were present at the trial, and Mr. Iaazza was
5 According to the Government, this guarantee was introduced following the amendment of article 66
of the Code of Criminal Procedure under Act No. 35-11, which was published in Bulletin officiel No.
5990 of 27 October 2011.
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defended by different lawyers throughout the proceedings, both at first instance and on
appeal.
61.
Mr. Iaazza was confronted with all the evidence obtained in the investigation and
made detailed statements in which he voluntarily acknowledged the facts. The court based
its judgment on the physical evidence and on statements made by other persons involved in
the case, which confirmed that Mr. Iaazza was the main instigator of the criminal acts
committed in 2008. His associates all stated that he was responsible for planning the attack,
which included determining the time and place of its execution, recruiting and funding the
participants and allocating roles to the accomplices.
62.
The Government considers that there was nothing unusual about the fact that Mr.
Iaazza was heard alongside other defendants since they were all involved in the same case.
The trial was conducted in full compliance with the guarantees of the right to a fair trial, as
shown by the fact that lawyers and witnesses were present and the adversarial principle was
upheld. All the defendants mounted a defence and were free to put forward all their claims.
Mr. Iaazza’s lawyer had the opportunity to raise any claims deemed relevant to demonstrating
his client’s innocence. Several witnesses, including defence witnesses, were heard. The
Government notes that it was for the judge alone, acting in accordance with his or her own
assessment and personal convictions, to decide whether or not to accept requests to summon
or hear witnesses on the basis of the facts, the circumstances of the case and the evidence
before him or her. The Government thus asserts that Mr. Iaazza’s detention is not arbitrary
under category III.
63.
The Government categorically denies that Mr. Iaazza was arrested because of his
Saharan identity since all Moroccans are equal before the law and Moroccan identity is plural
and indivisible. It notes that the Constitution and the law prohibit all forms of discrimination
and that, under Moroccan law, the prosecution and detention of anyone may be carried out
only in full compliance with the law, with all forms of prosecution based on discriminatory
grounds being prohibited. Mr. Iaazza was arrested, prosecuted and sentenced in strict
compliance with the law, as are all other persons who have committed acts punishable by
law.
64.
In the Government’s view, to claim that a detention is arbitrary simply because of the
detainee’s ethnic, cultural or political affiliation would be tantamount to granting him or her
an immunity that cannot be supported by international human rights law, particularly when
the case involves acts of violence and proven violations of laws in force that are applicable
to all Moroccan citizens.
65.
Mr. Iaazza was visited by his family in March and April 2008 and obtained permission
from the public prosecutor’s office to communicate with his lawyer on 13 March 2008. He
has never been deprived of the right to communicate by telephone, nor has he been transferred
to an unknown location, subjected to enforced disappearance or declared to be on a hunger
strike of any kind since the start of his incarceration.
66.
Since 18 May 2017, Mr. Iaazza has been incarcerated in Bouizakarne prison in a cell
that complies with all international standards. He has never been placed in solitary
confinement. In common with all other prisoners, Mr. Iaazza enjoys all his rights and is
treated humanely and with respect for his dignity, in accordance with international standards.
He continues to communicate with his family, who have always been allowed to visit him,
including on 11 March 2020, prior to the suspension of visits following the outbreak of the
COVID-19 pandemic. Mr. Iaazza was also visited by his family on 5 March 2021. He has
never been in a cell with an inmate who has COVID-19 and has never had any symptoms of
the disease or been identified as a contact person.
67.
With regard to the allegation that Mr. Iaazza has been deprived of contact with the
outside world since 13 October 2020, the Government notes that he purchased five phone
cards from the prison canteen on 15 October 2020 and that he has deliberately avoided using
the landline since 2 October 2020.
68.
On 4 November 2020, Mr. Iaazza received a visit from the Guelmim-Oued Noun
Regional Human Rights Commission. This delegation from the National Human Rights
Council found that he was suffering from a number of chronic illnesses, including diabetes,
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rheumatism, asthma and vision problems, but was receiving regular medical care. The
Commission is in regular contact with Mr. Iaazza. On 23 February 2021, the national
preventive mechanism met Mr. Iaazza, who complained about his state of health. The
mechanism forwarded the complaint to the Commission, which is monitoring his case.
69.
Since the start of his incarceration, Mr. Iaazza has had 37 inpatient consultations with
general practitioners and 8 consultations with specialists. On 22 January 2021, he was
transferred to the emergency department at Bouizakarne Hospital, as he was suffering from
asthenia, but he refused to undergo the appropriate treatment. On 1 March 2021, he was
transferred to the hospital’s emergency department, where he received the necessary
treatment. The Government notes that Mr. Iaazza currently enjoys a fair general state of
health.
Further information from the source
70.
The source notes that it has not been possible to confirm whether Mr. Iaazza’s lawyer
visited him on 13 March 2008. Consequently, it would like to amend its submission to
indicate that Mr. Iaazza was subjected to enforced disappearance for two weeks. The source
confirms that, contrary to its initial allegations, Mr. Iaazza was able to see his family before
the proceedings began in October 2008.
71.
Mr. Iaazza is currently being held for up to 23 hours per day, in unsanitary conditions,
without adequate food or medical care. His health is in critical condition. He is allowed to
make only three short calls, twice a week, to pre-approved individuals. The source confirms
that a delegation from the National Human Rights Council visited him in February and March
2021 as a result of international pressure.
72.
The source notes that Mr. Iaazza was arrested late at night on 29 February 2008, which
could be understood to mean early in the morning of 1 March 2008, and was not informed of
the reasons for his arrest. He was held incommunicado for four days, tortured and subjected
to political questioning. The documents used against Mr. Iaazza and the other defendants
were almost identical and Mr. Iaazza’s pretrial detention was extended to force him to sign
the documents, which constitute the only incriminating evidence against him. It is reportedly
common practice for the police to use documents signed under torture against defendants.
73.
Mr. Iaazza never waived his right to a lawyer and was never informed of the charges
against him or of his right to remain silent after his arrest. However, the fact that these rights
were not provided for in Moroccan law cannot justify the Government’s violation of its
international obligations. Mr. Iaazza informed the judge that he had been subjected to torture
but no investigation was carried out. During the proceedings, Mr. Iaazza denied the charges
against him and informed the court that he had been arrested because of his activism.
74.
According to the source, the presence of defence lawyers is not sufficient to fulfil the
requirements of a fair trial. Mr. Iaazza was denied confidential access to his lawyer and was
prevented from calling witnesses who could attest to the fact that he had not attended the
demonstration.
75.
Lastly, there is a link between the suppression of the 2008 demonstrations and Tan-
Tan’s reputation as a town with a large Saharan population that is the birthplace of the
Saharan revolution and the home of Frente POLISARIO. Mr. Iaazza’s prominence as a
Saharan activist is the only reason why he remains in detention. The source believes that
sporadic acts of violence carried out by some people at a gathering is not to be attributed to
others who are acting peacefully.
Discussion
76.
The Working Group thanks the source and the Government for their submissions.
77.
In determining whether the deprivation of liberty of Mr. Iaazza is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
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the Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.6
78.
The source has called on the Working Group to apply international humanitarian law.
As the Working Group’s mandate is limited to issues of arbitrary detention, it believes that it
can reach a conclusion on the deprivation of Mr. Iaazza’s liberty without having recourse to
international humanitarian law. 7 It points out that its conclusions on the allegations of
violations have no legal consequences for the status of Western Sahara. Consequently, its
opinions should not be interpreted as expressing any political view concerning the present or
future status of the Non-Self-Governing Territory of Western Sahara.8
Category I
79.
The source states that Mr. Iaazza was arrested in Tan-Tan late in the evening of 29
February 2008, which could also mean early in the morning of 1 March 2008. Of his own
free will, he went to the police station at the request of some police officers, who told him
that they had some questions to put to him. He was neither shown an arrest warrant nor
informed of the reasons for his arrest.
80.
According to the Government, Mr. Iaazza was arrested on a public street on 1 March
2008 after his direct involvement in a demonstration resulting in the death of a police officer
had been established. The police immediately informed him of the reasons for his arrest.
However, the Government has not made any mention of an arrest warrant being shown. The
information provided by the Government suggests that Mr. Iaazza was arrested several days
after the demonstration, i.e., he was not arrested in flagrante delicto.9
81.
In accordance with article 9 (1) of the Covenant, “no one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are established by
law”. The Working Group considers that the source has provided credible information, which
the Government has not rebutted, to the effect that Mr. Iaazza was arrested without an arrest
warrant, in violation of article 9 (1) of the Covenant.10 Therefore, the authorities have not
established the legal basis for his arrest under the Covenant.
82.
Article 9 (2) of the Covenant provides that “anyone who is arrested shall be informed,
at the time of arrest, of the reasons for his arrest and shall be promptly informed of any
charges against him”. Oral notification of reasons for arrest satisfies the requirement.11 The
source and the Government have provided conflicting information on whether or not Mr.
Iaazza was informed of the reasons for his arrest. The Working Group is therefore unable to
determine whether there has been a violation of Mr. Iaazza’s right to be informed of the
reasons for his arrest.
83.
The source concurs with the Government in stating that Mr. Iaazza was informed of
the charges against him on 4 March 2008, when he appeared before the Prosecutor, that is to
say three days after he had been arrested. Articles 9 (2) and 14 (3) (a) of the Covenant provide
that anyone who is arrested must be promptly informed of any charges against him.12 The
Working Group is not persuaded that the authorities have violated these provisions.13
84.
According to the Government, Mr. Iaazza was not informed of his rights to remain
silent, communicate with a lawyer or receive legal aid as the obligation to inform arrested
persons of these matters was not expressly provided for in national law until 2011. Persons
deprived of their liberty are entitled to be informed by the authorities, at the time of their
6 A/HRC/19/57, para. 68.
7 Opinions No. 68/2020, para. 59; and No. 52/2020, para. 75. See also A/HRC/27/48/Add.5, para. 62.
8 Opinions No. 68/2020, para. 61 and No. 60/2018, paras. 62–64.
9 Opinion No. 9/2018, para. 38.
10 Opinions No. 45/2019, para. 51; and No. 44/2019, para. 52.
11 Human Rights Committee, general comment No. 35 (2014), para. 26.
12 Ibid., para. 30.
13 Opinion No. 44/2016, para. 33.
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11
arrest, of their right to be assisted by a lawyer of their choice.14 As the authorities failed to
inform Mr. Iaazza of this right, which cannot be excused by the lack of provisions requiring
them to do so in national law, he was unable to challenge the legal basis for his detention.
85.
The information provided by both parties indicates that Mr. Iaazza was not brought
before a court in a timely manner. According to the source, the Prosecutor ordered Mr.
Iaazza’s detention on 4 March 2008, three days after his arrest. The Government states that
Mr. Iaazza was held in police custody from 3 p.m. on 1 March 2008 to 11 a.m. on 4 March
2008. On 3 March 2008, the Prosecutor extended Mr. Iaazza’s custody by 24 hours.15 Mr.
Iaazza appeared before the Prosecutor General, who referred him to the investigating judge
on the same day (4 March 2008), three days after his arrest.
86.
According to article 9 (3) of the Covenant, “anyone arrested or detained on a criminal
charge shall be brought promptly before a judge”. The Human Rights Committee has
observed that 48 hours is ordinarily sufficient to satisfy this obligation, and any longer delay
must remain absolutely exceptional and be justified under the circumstances.16 Mr. Iaazza
was brought before a judicial authority on 4 March 2008, i.e., three days after his arrest, in
violation of article 9 (3) of the Covenant. On 3 March 2008, the Prosecutor extended the
custody of Mr. Iaazza, who was brought before the Prosecutor General on 4 March 2008. As
the Working Group has stated, the lawfulness of detention must be reviewed by a judicial
authority, not by a prosecutorial authority.17 Consequently, the authorities failed to establish
the legal basis of Mr. Iaazza’s detention in accordance with the provisions of the Covenant.
87.
The submissions of both parties indicate that Mr. Iaazza was unable to communicate
with his family or his lawyer between the time of his arrest and 4 March 2008. As a result,
Mr. Iaazza was deprived of the right to take proceedings before a court so that it might decide
without delay on the lawfulness of his detention in accordance with article 9 (4) of the
Covenant.
88.
According to the source, Mr. Iaazza was unable to speak to a lawyer while in police
custody and never waived his right to a lawyer. According to the Government, Mr. Iaazza
did not ask to speak to a lawyer following the extension of his police custody and waived his
right to a lawyer during the preliminary hearing held on 4 March 2008. However, the
Government claims that Mr. Iaazza met his lawyer on 13 March 2008. Therefore, the
Working Group believes it likely that Mr. Iaazza attempted to contact a lawyer while in
custody and in advance of the preliminary hearing but was prevented from doing so. Mr.
Iaazza was therefore denied access to counsel, which is an essential safeguard in legal
proceedings,18 and was prevented from exercising his right to an effective remedy under
article 2 (3) of the Covenant.
89.
Given that the judge did not order a medical examination or any investigation during
the preliminary hearing on 4 March 2008, the Working Group finds credible the source’s
allegations concerning the torture and inhuman treatment to which Mr. Iaazza was subjected.
This treatment significantly undermined Mr. Iaazza’s ability to challenge his detention.19 It is
therefore all the more likely that he was unable to exercise the right to challenge the legal
basis for his detention, in violation of article 9 (3) and (4) of the Covenant.
14 Opinions No. 43/2019, para. 53; and No. 39/2019, para. 87. See also the 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.
15 The Government submitted the record of the extension but the document was illegible. At the request
of the Working Group, it provided another copy, but that was also illegible. The Working Group was
unable to obtain an official translation of this document.
16 Human Rights Committee, general comment No. 35 (2014), para. 33. See also CAT/C/MAR/CO/4,
para. 7; and opinion No. 67/2019, para. 64.
17 A/HRC/45/16/Add.1, para. 35 (prosecutorial authorities do not possess the requisite degree of
independence to assess the necessity and proportionality of detention); Human Rights Committee,
general comment No. 35 (2014), para. 32.
18 Opinions No. 61/2020, para. 70; No. 40/2020, para. 29; and No. 25/2020, para. 41. See also the
Human Rights Committee’s general comment No. 35 (2014), para. 46.
19 Opinion No. 37/2021, para. 66.
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90.
The Working Group concludes that Mr. Iaazza’s detention lacked any legal basis and
was therefore arbitrary under category I.
Category II
91.
The source states that Mr. Iaazza is being detained for having exercised his rights to
freedom of expression and freedom of peaceful assembly, which are guaranteed under
articles 19 and 21 of the Covenant. According to the source, Mr. Iaazza was held responsible
for the death of a police officer following the peaceful demonstration held on 27 February
2008, although he was not present at the demonstration. He was reportedly arrested because
he had actively campaigned for the Western Saharan people’s right to self-determination.
92.
The Government categorically rejects these allegations and stresses that the
proceedings brought against Mr. Iaazza followed an investigation that established his direct
involvement in criminal acts.
93.
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. It covers political discourse, commentary on public affairs and discussion of
human rights 20 and guarantees the freedom to express opinions that do not conform to
government policies.21
94.
The Working Group considers that Mr. Iaazza’s activism falls within the scope of the
right to freedom of expression, which is guaranteed by article 19 of the Covenant, and that
he was arrested for exercising this right. 22 This conclusion is based on the source’s
allegations, which the Government has not refuted, to the effect that Mr. Iaazza was subjected
to politically motivated questioning about his links to the Frente POLISARIO and the
Saharan Ministry of the Occupied Territories, which suggests that he was arrested because
of his activism and not because he had committed criminal offences. Moreover, the police
reports mentioned that Mr. Iaazza was a “dangerous separatist” and a member of a criminal
organization that had to be suppressed in order to set an example.
95.
Furthermore, Mr. Iaazza, who claimed the Saharan people’s right to self-
determination, is being detained for having exercised his right to take part in the conduct of
public affairs23 under article 25 (a) of the Covenant. With regard to the organization of the
demonstration, he was also entitled to protection of the right of peaceful assembly, as
guaranteed by article 21 of the Covenant.24 While the organizers of a demonstration should
make every effort to comply with the law and encourage the peaceful conduct of the
assembly, they cannot be held responsible for the unlawful behaviour of others.25
96.
There is nothing to suggest – and the Government has not argued – that the restrictions
referred to in articles 19 (3), 21 and 25 of the Covenant apply in the present case. The
Government has not explained why it was considered necessary to prosecute Mr. Iaazza in
order to protect a legitimate interest within the meaning of these provisions or why sentencing
Mr. Iaazza to 15 years’ imprisonment for organizing a demonstration was considered to be a
proportionate measure. There is no reason to believe that Mr. Iaazza’s activism could
reasonably be considered a threat to national security, public order, public health or morals,
or the rights or reputations of others.
97.
The Working Group concludes that Mr. Iaazza is being detained for having exercised
his rights to freedom of expression and peaceful assembly and his right to take part in the
conduct of public affairs. His detention is arbitrary under category II. The Working Group
refers the case to the Special Rapporteur on the promotion and protection of the right to
20 Human Rights Committee, general comment No. 35 (2011), paras. 11 and 12.
21 Opinions No. 8/2019, para. 55; and No. 79/2017, para. 55.
22 A/HRC/27/48/Add.5, para. 64.
23 Human Rights Committee, general comment No. 25 (1996), para. 8; see also opinions No. 16/2020
and No. 15/2020.
24 Human Rights Committee, general comment No. 37 (2020), para. 12.
25 Ibid., para. 17; A/HRC/31/66, paras. 20 and 26; and opinion No. 22/2017, para. 74.
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13
freedom of opinion and expression and the Special Rapporteur on the rights to freedom of
peaceful assembly and of association.
Category III
98.
As the Working Group has found that Mr. Iaazza’s detention is arbitrary under
category II, it asserts that he should not have been brought to trial. However, Mr. Iaazza was
convicted and sentenced to 15 years’ imprisonment and this judgment was upheld on appeal.
99.
According to the source, Mr. Iaazza was held in solitary confinement for two weeks
at the start of his detention and was prevented from meeting his lawyer to prepare his defence
between April 2008 and October 2008, when his trial began. It was impossible for him to talk
to his lawyer in private as the authorities listened in on their conversations and interrupted
their talks.
100.
The Government refutes these allegations, maintaining that Mr. Iaazza did not ask to
meet a lawyer after his police custody was extended, that he waived his right to a lawyer
during the preliminary hearing held on 4 March 2008, that he was visited by his lawyer in
Inezgane prison on 13 March 2008, and that he was assisted by his lawyer during the hearing
held on 27 May 2008 and throughout his trial and appeal.
101.
All persons deprived of their liberty have the right to legal assistance by the counsel
of their choice at any time during their detention, including immediately after their
apprehension, and such assistance must be provided without delay.26 Mr. Iaazza was unable
to communicate with his lawyer when he was taken into custody or on a regular basis after
that. As a result, he was prevented from preparing a proper defence. Meetings with counsel
may be within sight but not within hearing of the authorities, and all communications with
counsel must remain confidential.27 Therefore, Mr. Iaazza’s right to have adequate time and
facilities for the preparation of his defence and to communicate with counsel of his own
choosing, as guaranteed by article 14 (3) (b) of the Covenant, was violated.
102.
The Working Group is not persuaded that the presence of eight co-accused persons
rendered the trial unfair. However, the Government has not fully responded to allegations
that the defence was not given the opportunity to call witnesses,28 particularly those who were
in a position to confirm that Mr. Iaazza did not attend the demonstration. The reaction to the
defence lawyer’s statement about Tan-Tan further suggests that the court was not
independent. Therefore, the Working Group considers that Mr. Iaazza’s rights under article
14 (1), (2) and (3) (e) of the Covenant have been violated and refers the case to the Special
Rapporteur on the independence of judges and lawyers.
103.
Given that the authorities failed to conduct a medical examination or an investigation,
the Working Group considers that the source has presented credible arguments to show that
Mr. Iaazza was subjected to torture and ill-treatment, in violation of article 5 of the Universal
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. The torture and ill-treatment to which Mr. Iaazza
was subjected may have hindered his ability to participate in his own defence. The Working
Group refers the case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment.
104.
In addition, the source claims that the only evidence put forward by the prosecution
was a confession signed by Mr. Iaazza under torture and in the absence of a lawyer. The
Government claims that Mr. Iaazza voluntarily admitted the facts in detailed statements and
that the court relied on the evidence contained in the case file, including the statements made
by Mr. Iaazza and other suspects in the case.
26 A/HRC/30/37, annex, principle 9 and guideline 8; A/HRC/27/48/Add.5, para. 83 (a); A/HRC/45/16,
para. 51; opinion No. 7/2021, paras. 81–82; and CCPR/C/MAR/CO/6, paras. 25–26.
27 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),
rule 61 (1); Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, principle 18; and A/HRC/30/37, annex, guideline 8.
28 CCPR/C/MAR/CO/6, paras. 33–34.
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105.
Confessions made in the absence of legal counsel should not be admitted as evidence
in criminal proceedings.29 Furthermore, the admission into evidence of a statement obtained
through torture or ill-treatment renders the entire proceedings unfair, regardless of whether
other evidence was available to support the verdict.30 The burden is on the Government to
prove that Mr. Iaazza’s confession was given freely31, but it has not done so. The Working
Group finds credible the source’s allegations that Mr. Iaazza bore visible signs of torture.32
The authorities did not order a medical examination or an investigation that might have
served to refute these allegations.
106.
The authorities violated Mr. Iaazza’s right not to be compelled to confess guilt under
article 14 (3) (g) of the Covenant and article 15 of the Convention against Torture.33 The court
did not order an independent investigation when it was informed that acts of torture had been
committed, contrary to Mr. Iaazza’s right to be tried by an independent and impartial tribunal
under article 14 (1) of the Covenant,34 and articles 12, 13, and 14 of the Convention against
Torture. In addition, the Prosecutor was required to investigate and report on the torture and
coerced confessions in accordance with principles 12 and 16 of the Guidelines on the Role
of Prosecutors.35
107.
The Working Group concludes that the violations of the right to a fair trial are of such
gravity as to give Mr. Iaazza’s detention an arbitrary character under category III. The
Working Group in no way condones the killing of a police officer but stresses that the
investigations into the alleged perpetrators and the proceedings brought against them must
respect the guarantees of a fair trial. This opinion is without prejudice to any findings that
may be made in other proceedings concerning the murder of the police officer.
Category V
108.
The source states that Mr. Iaazza is being detained because he is a Saharan and
because of his political views on the Saharan people’s right to self-determination. It believes
that his case is symbolic of the systematic persecution of all Saharans.
109.
According to the Government, Mr. Iaazza benefited from mitigating circumstances
and is being detained under the law because he committed a criminal offence, rather than on
any discriminatory grounds. The Government states that all Moroccans are equal before the
law and that international human rights law does not confer immunity on persons who
commit acts of violence and break the law.
110.
The Working Group has determined, under category II, that Mr. Iaazza was detained
for having peacefully exercised his rights under international law. In such circumstances, it
is very likely that Mr. Iaazza’s detention also constitutes a violation of international law on
the grounds of discrimination based on political or other views.36 In limiting itself to asserting
that Mr. Iaazza was incarcerated for having committed a criminal offence, the Government
has neither dispelled this presumption nor rebutted the credible allegations made by the
source regarding the discrimination to which he was subjected.
111.
As the President of the Collectif des défenseurs sahraouis des droits de l’homme, Mr.
Iaazza is an influential Saharan activist who has played a leading role in the movement for
the independence of Western Sahara. He is one of 20 Saharan activists to have been
apprehended in a wave of arrests. He was prosecuted alongside eight of them and questioned
about his links with Frente POLISARIO 37 and the Saharan Ministry of the Occupied
Territories. According to police reports, Mr. Iaazza is a “dangerous separatist” and a member
of a criminal organization that had to be cracked down on to set an example. During the trial,
29 E/CN.4/2003/68, para. 26 (e); A/HRC/27/48/Add.5, para. 35; and A/HRC/45/16, para. 53.
30 Opinion No. 41/2020, para. 70.
31 Human Rights Committee, general comment No. 32 (2007), para. 41.
32 Opinion No. 68/2020, para. 80; and CCPR/C/MAR/CO/6, paras. 23–24.
33 Opinions No. 31/2020, para. 58; and No. 28/2019, para. 70. See also CAT/C/MAR/CO/4, para. 17.
34 Opinions No. 31/2020, para. 57; and No. 24/2020, para. 108. See also A/HRC/27/48/Add.5, para. 83
(d).
35 Opinions No. 4/2021, para. 106; and No. 63/2020, para. 42.
36 See opinions No. 4/2021, No. 59/2019 and No. 13/2018.
37 Opinion No. 67/2019, para. 75.
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15
a defence lawyer who said that Tan-Tan was part of Western Sahara was forced to retract the
statement in order to avoid prosecution. The judge said that Mr. Iaazza had paid “separatists”
to attend the demonstration.
112.
This information shows that Mr. Iaazza was arrested because of his Saharan origins
and his political views in support of the right to self-determination of the people of Western
Sahara. The Working Group recalls its previous findings concerning Saharans detained on
discriminatory grounds.38 It believes that Mr. Iaazza’s deprivation of liberty is contrary to
articles 2 (1) and 26 of the Covenant and is arbitrary under category V.
Concluding remarks
113.
Since February 2008, Mr. Iaazza has been the victim of numerous human rights
violations. He has been placed in overcrowded cells, prevented from contacting his family,
transferred to a prison far from his family and ill-treated by prison staff. He was subjected to
enforced disappearance for a period of around two weeks, at the start of his detention,
followed by a further period of eight weeks, around October 2020, when, after being placed
in the same cell as another inmate who tested positive for COVID-19, he was transferred to
an isolation cell. Mr. Iaazza has gone on hunger strike several times to protest against his
treatment and is currently being held in his cell for up to 23 hours per day in unsanitary
conditions, without adequate food or medical care. The Government denies these allegations
and argues that Mr. Iaazza was not a victim of enforced disappearance as family members
visited him in March and April 2008 and he bought phone cards in the prison canteen on 15
October 2020.
114.
The Working Group recalls that, under article 10 (1) of the Covenant, the Government
is required to treat all persons deprived of their liberty with respect for the inherent dignity
of the human person. It stresses the importance of upholding international standards, in
particular rules 12 to 27 and 58 of the Nelson Mandela Rules, relating to living conditions,
health care and contact with the outside world. The Working Group refers the matter to the
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
Disposition
115.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Yahya Mohamed Elhafed Iaazza is arbitrary,
being in contravention of articles 2, 5, 7, 8, 9, 10, 11, 19, 20 (1) and 21 (1) of the
Universal Declaration of Human Rights and articles 2 (1) and (3), 7, 9, 14, 19, 21, 25
(a) and 26 of the International Covenant on Civil and Political Rights, and falls within
categories I, II, III and V.
116.
The Working Group requests the Government of Morocco to take the steps necessary
to remedy the situation of Mr. Iaazza 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.
117.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Iaazza immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.39 In the current context of the global COVID-19 pandemic and the threat that it poses in
places of detention, the Working Group calls upon the Government to take urgent action to
ensure the immediate release of Mr. Iaazza.
118.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
38 Opinions No. 68/2020, No. 67/2019, No. 23/2019, No. 60/2018, No. 58/2018, No. 31/2018 and No.
11/2017.
39 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I).
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Iaazza and to take appropriate measures against those responsible for the violation of his
rights.
119.
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, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, the Special Rapporteur on the independence of judges
and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, and the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, for appropriate
action.
120.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
121.
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. Iaazza has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Iaazza;
(c)
Whether an investigation has been conducted into the violation of Mr. Iaazza’s
rights and, if so, the outcome of the investigation;
(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.
122.
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.
123.
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.
124.
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.40
[Adopted on 15 November 2021]
40 Human Rights Council resolution 42/22, paras. 3 and 7.