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A/HRC/WGAD/2021/46

Opinion No. 46/2021, concerning Yahya Mohamed Elhafed Iaazza (Morocco)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-11-19 · en UN

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

Volltext (verifizierbarer Originaltext)

GE.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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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.