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.22-11438 (E) 300922 031022
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-third session, 30 March–8 April 2022
Opinion No. 31/2022 concerning Soulaimane Raissouni (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 2 December 2021 the Working Group
transmitted to the Government of Morocco a communication concerning Soulaimane
Raissouni. The Government replied to the communication on 31 January 2022. 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/2022/31
General Assembly
Distr.: General
21 July 2022
English
Original: French
A/HRC/WGAD/2022/31
2
GE.22-11438
Submissions
Communication from the source
4.
Soulaimane Raissouni is a Moroccan citizen born in 1972. He normally resides in
Casablanca. He is a journalist and former editor-in-chief of the Akhbar al-Youm newspaper
and a member of the Moroccan Association for Human Rights. Known for his editorials
critical of the Moroccan authorities, he has helped set up and coordinate committees in
support of persecuted journalists.
a.
Background
5.
According to the source, on 14 May 2020, a post appeared on a social network
accusing an unnamed person of criminal acts, without specifying where or when they had
been committed, but mentioning that the perpetrator was the family member of a female
journalist convicted in 2019. The source maintains that a member of Mr. Raissouni’s family
– a journalist, also with the Akhbar al-Youm daily – had been arrested in 2019 and questioned
about his work and that some people considered that the arrest was a warning to Mr.
Raissouni.
6.
Mr. Raissouni was reportedly arrested following the publication of editorials critical
of the Government of Morocco. Two days before his arrest, Mr. Raissouni had published an
editorial criticizing the authorities for the prosecution of thousands of people for breaking
laws passed under the public health state of emergency linked to the coronavirus disease
(COVID-19) pandemic.
b.
Arrest and detention
7.
On 20 May 2020, the Prosecutor ordered an investigation to identify the individuals
mentioned in the social media post of 14 May 2020. Several news sites close to the
intelligence services, including Chouf TV and Barlamane, which are often involved in the
defamation of political opponents and journalists, called for Mr. Raissouni’s arrest. As early
as 13 September 2019, several months before the incriminating post, Barlamane alluded to a
homosexual vice case against Mr. Raissouni. On 17 May 2020, Chouf TV published an article
entitled “Petite Soulaiminette, c’est l’avant-dernier avertissement avant de te détruire !”
(Little Soulaiminette, this is your next to last warning before we destroy you!), which
promised that the editor would be “sacrificed” for Eid al-Fitr, which fell on 24 May 2020.
Furthermore, Mr. Raissouni was targeted by Pegasus spyware for two years, beginning in
2017.
8.
The source contends that, on 22 May 2020, Mr. Raissouni was arrested outside his
home by about 15 plain-clothed police officers, who did not show him a warrant. Contrary
to the police report, the officers did not serve him with a summons and they used force to
make the arrest. Chouf TV was present at the arrest, having been informed beforehand.
9.
According to the indictment, the alleged victim had been at Mr. Raissouni’s home on
the date of the purported facts, 15 September 2018, at which time Mr. Raissouni’s wife had
been working on a documentary about the status of lesbian, gay, bisexual, transgender, queer,
intersex and asexual people in Morocco.
10.
Three days after his arrest, a search was carried out of Mr. Raissouni’s home, with his
written consent. On the same day, his wife was interviewed as a witness at the police station,
as was the alleged victim, who claimed that Mr. Raissouni had locked the cleaning lady in
the kitchen to prevent her from witnessing the alleged facts. According to the source, this
testimony differs from that which was given to the investigating judge. Moreover, Mr.
Raissouni and his lawyers have stated throughout the proceedings that it was impossible to
lock anyone in the kitchen, as it had no doors. Despite requests from the defence, the
investigating judge refused to call the cleaning lady as a witness, even though she was
mentioned in the testimony of the alleged victim.
11.
On 25 May 2020, Mr. Raissouni appeared before the Prosecutor General at the
Casablanca Court of Appeal, who had opened a preliminary investigation for indecent assault
and false imprisonment under articles 436 and 485 of the Criminal Code. On the same day,
A/HRC/WGAD/2022/31
GE.22-11438
3
the investigating judge ordered Mr. Raissouni’s detention and decided to drop the false
imprisonment charge. In January, the criminal division of the Court of Appeal overturned
this decision at the request of the Prosecutor, without giving a reason.
12.
On 20 July 2020, Mr. Raissouni appeared before the investigating judge for a more
extensive hearing. On 9 September 2020, the investigating judge convened a confrontation
with the complainant at which Mr. Raissouni denied any assault. According to the source,
Mr. Raissouni’s trial was supposed to begin on 9 February 2021, but it has been postponed
several times. The alleged victim has never testified, despite his presence at a hearing on 29
June 2021. Mr. Raissouni was not permitted to attend a hearing on 1 July 2021.
13.
On 8 April 2021, Mr. Raissouni started a hunger strike to protest his detention. As a
reprisal, the authorities transferred him to a cell near a kitchen, searched his cell and
confiscated his personal belongings. Mr. Raissouni refused to drink water until his belongings
were returned to him six days later. He has lost more than 31 kilograms and suffers from
chronic high blood pressure that requires regular treatment. Several hearings have been
postponed owing to his deteriorating health, despite a statement issued by the Prosecutor
General on 15 June 2021, which indicated that his state of health was “normal”.
14.
In June 2021, Mr. Raissouni appeared at a hearing in a much-weakened state. On 17
June, he wrote a letter, which was published a few days later, declaring that he was ready to
stand trial, but while free. On 22 June, he stated that he was willing to attend the hearing,
provided that he could be transported by ambulance and have a wheelchair at his disposal.
The court denied this request, interpreted Mr. Raissouni’s absence as a failure to appear and
issued him with a caution. Despite his deteriorating health, all of his applications for
conditional release have been rejected.
15.
On 9 July 2021, Mr. Raissouni was sentenced to 5 years’ imprisonment and a fine of
100,000 dirhams (DH). The verdict was pronounced in the absence of the accused and his
lawyers owing to the refusal of his request for an ambulance and a wheelchair.
16.
Mr. Raissouni’s lawyers were not permitted to speak with him during his appearances
before the Prosecutor and the investigating judge. They were only able to speak with him
three weeks after his arrest. The authorities claimed this delay was due to Mr. Raissouni’s
being placed in quarantine in the context of the COVID-19 pandemic.
17.
In addition, the court decided to consider the cases of Mr. Raissouni and another
journalist simultaneously at the same hearing on 29 June 2021, complicating the work of the
defence team that represented both journalists.
18.
On 7 August 2021, Mr. Raissouni was transferred to hospital owing to his hunger
strike, which ended on 9 August 2021. He was suffering significant after-effects, including
high blood pressure, paralysis of the right leg and frequent bouts of absent-mindedness,
requiring significant medical and psychological treatment.
19.
The appeal proceedings opened on 13 October 2021. The hearings were postponed
until 27 October and then until 3 November and 10 November, on which date the defence
had the opportunity to explain the merits of the appeal, raising procedural and other issues.
c.
Legal analysis
i.
Category I
20.
According to the source, Mr. Raissouni was arrested without a warrant and without
being informed of the reasons for his arrest, in violation of article 9 of the Universal
Declaration of Human Rights and article 9 of the Covenant. Although the Government has
stated that the arrest was the result of a police summons, the source claims that such a
summons does not authorize the arrest of individuals to ensure that they appear in the
framework of a preliminary investigation.
21.
The source also considers that Mr. Raissouni’s police custody was extended beyond
the time permitted under articles 66, 67 and 80 of the Code of Criminal Procedure, which
limit the duration of police custody to 48 hours and allow its extension by 24 hours only with
A/HRC/WGAD/2022/31
4
GE.22-11438
the written authorization of the Prosecutor. The source recalls that the Human Rights
Committee has called on Morocco to set the normal length of police custody at 48 hours.2
22.
According to the source, no reason was given for the decision to extend police
custody, and Mr. Raissouni was not given a hearing at which he might have challenged that
extension, in violation of article 9 (4) of the Covenant.
23.
The source recalls that article 14 (2) of the Covenant and rule 111 (2) of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
guarantee the principle of presumption of innocence. In addition, article 9 (3) of the Covenant
requires that pretrial detention be proportionate and lawful, with consideration of less severe
measures being particularly important. Lastly, article 177 of the Code of Criminal Procedure
limits the duration of pretrial detention to 2 months in criminal cases, renewable up to five
times upon the request of the Prosecutor and with the agreement of the investigating judge.
Failure to respect this time limit is punishable under article 225 of the Criminal Code.
24.
In this case, the source considers that Mr. Raissouni’s detention since 22 May 2020
far exceeds the time limit set by the Code of Criminal Procedure. The investigating judge
denied all of Mr. Raissouni’s applications for conditional release without justifying the
necessity or validity of his continued detention or demonstrating that his release would result
in a substantial risk of his absconding, harming the complainant or interfering with the
evidence or the course of the investigation. Nor has the investigating judge explained why
other, less onerous measures are inappropriate, despite Mr. Raissouni having informed the
press of his willingness to stand trial and answer the charges against him.
25.
Finally, the source recalls the principle of legality set forth in article 11 (2) of the
Universal Declaration of Human Rights and argues that article 485 (1) of the Criminal Code,
under the section on indecent assault, lacks clarity and is more moral than legal in nature.
According to the source, the invocation of article 485, given its constituent elements,
misrepresents and inappropriately characterizes the case. The source considers that
categorizing acts of sexual violence under the banner of morality and decency reinforces
discriminatory stereotypes.
ii.
Category II
26.
According to the source, Mr. Raissouni was arrested and imprisoned because of the
exercise of his right to freedom of expression. The arrest took place only two days after Mr.
Raissouni published an editorial critical of the authorities which had a major impact in
Morocco. Several senior government officials were mentioned in the editorial.
27.
In March 2021, Akhbar al-Youm was forced to close owing to the harassment and
imprisonment of its journalists, including Mr. Raissouni, and financial difficulties.
28.
Mr. Raissouni has spoken out against media outlets that are reputed to be close to the
intelligence services. The source highlights the call by Chouf TV for the arrest of Mr.
Raissouni, five days before it took place, and the allusion by Barlamane to a homosexual vice
case involving Mr. Raissouni, which was made almost a year before the social media post of
14 May 2020.
29.
According to the source, freedom of the press is in decline in Morocco and the
authorities are resorting to false allegations of sexual assault as retaliation against journalists,
creating a sense of fear among them.
30.
The source notes that victims of sexual violence have difficulty in accessing justice in
Morocco, as the police are reluctant to investigate their complaints, which are rarely
processed within a reasonable time. Opening an investigation in the absence of a complaint
by the presumed victim – as occurred in Mr. Raissouni’s case – is an extremely rare
occurrence and casts doubt upon the bona fides of the procedure.
2 CCPR/C/MAR/CO/6, para. 26.
A/HRC/WGAD/2022/31
GE.22-11438
5
31.
Lastly, the source also notes that on 26 July 2021, several special procedures mandate
holders sent a letter to the Moroccan authorities regarding Mr. Raissouni’s situation.3
iii.
Category III
32.
The source asserts that Mr. Raissouni was not assisted by a lawyer during his time in
police custody, in contravention of article 66 of the Code of Criminal Procedure. While Mr.
Raissouni’s lawyers were present during his appearance before the Prosecutor and the
investigating judge, at the end of his police custody, they were unable to speak with him.
They were only permitted to do so three weeks after he was arrested and placed in detention.
33.
The source states that, under the interim guidance issued by the World Health
Organization and the Office of the United Nations High Commissioner for Human Rights on
COVID-19 and persons deprived of their liberty,4 the quarantine imposed on Mr. Raissouni
in connection with the pandemic should not have affected his right to have adequate time and
facilities for the preparation of his defence and to communicate with counsel of his own
choosing.
34.
The source concludes that principles 7 and 8 of the Basic Principles on the Role of
Lawyers, principles 11 (1), 17 and 18 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment and the rights reiterated in general
comment No. 32 (2007) of the Human Rights Committee, have been violated. The source
denounces the Moroccan authorities’ unwillingness to implement the recommendations of
the Human Rights Committee to set the normal length of police custody at 48 hours and to
guarantee immediate access to a lawyer from the outset of detention.5
35.
The source considers that the principle of equality of arms enshrined in article 14 (3)
of the Covenant was violated, since Mr. Raissouni was not able to communicate with a lawyer
during the first three weeks of his detention. In addition, Mr. Raissouni’s lawyers did not
have access to the police custody report until the middle of June 2020 and did not receive the
indictment until February 2021, which prevented them from building a case or challenging
the arguments and evidence presented to the court on an equal footing with the prosecution.
36.
In addition, Mr. Raissouni was not allowed to see the criminal file on his case until 15
April 2021, and it was not transmitted to him until 22 April 2021. He had great difficulty in
studying it and in preparing his defence, given his state of health. The source asserts that Mr.
Raissouni’s continued detention prevents him from preparing his defence in adequate
conditions.
37.
The source points out that the principle of equality of arms requires that the accused
can give the necessary instructions to his defence counsel. However, Mr. Raissouni’s health
did not allow him to communicate with his lawyers in an intelligible manner or to participate
actively in the hearings. He was too weak to speak at his court appearance in May 2021.
38.
The source regrets the court’s refusal to hear either the presumed victim or the
cleaning lady, despite the requests of the defence, and its admission into evidence of the
testimony of Mr. Raissouni’s wife, in contravention of article 332 of the Code of Criminal
Procedure, which provides that statements by the spouse of the accused must be regarded as
mere information.
39.
The source also notes the refusal of the prison director to provide Mr. Raissouni with
a copy of the first instance judgment so that he could examine it and prepare his defence. Mr.
Raissouni obtained a copy only after his lawyers filed an appeal on 27 October 2021.
40.
Lastly, the source further claims that the Prosecutor General lacked objectivity and
independence and brought the prosecution even though no complaint had been submitted to
3 Communication MAR 6/2021, available at:
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26551.
The Government’s response is available at:
https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36621.
4 Inter-Agency Standing Committee, “Interim guidance. COVID-19: focus on persons deprived of their
liberty”, March 2020.
5 CCPR/C/MAR/CO/6, para. 26.
A/HRC/WGAD/2022/31
6
GE.22-11438
the Prosecutor General’s Office, notwithstanding the requirement for such a complaint under
article 49 of the Code of Criminal Procedure.
d.
Other claims
41.
According to the source, on 24 July 2021 the General Delegation for Prison
Administration and Reintegration published a video of Mr. Raissouni in prison, filmed
without his knowledge while he was wearing little clothing, in breach of article 10 of the
Covenant. The video was recorded while he was still in good health and was released to
discredit Mr. Raissouni’s hunger strike, following the issuance of a statement by the Coalition
marocaine des instances de droits humains (Moroccan Coalition of Human Rights Bodies).
42.
The source alleges that the release of this video, which was widely relayed on social
networks and in the “defamation media”, without the authorization of the Minister of Justice,
constitutes arbitrary and illegal interference with Mr. Raissouni’s privacy, in spite of article
17 of the Covenant, article 86 of the Prison Service Act (No. 23-98) and his right to his
personal image.
Response from the Government
43.
On 2 December 2021, the Working Group transmitted a communication concerning
Mr. Raissouni to the Government, requesting it to provide detailed information about him by
31 January 2022 and to guarantee his physical and mental integrity.
44.
On 31 January 2022 the Government transmitted its response, in which it underscored
that national legislation and articles 25 and 28 of the Constitution fully enshrine and
guarantee the free exercise of the freedoms of expression and opinion. Under article 23 of
the Constitution and domestic law, no one may be arbitrarily arrested or detained.
45.
Mr. Raissouni was prosecuted for indecent assault and false imprisonment following
a complaint filed on 21 May 2020 regarding a sexual assault that allegedly occurred on 15
September 2018 at the journalist’s home, in the context of his wife’s production of a
documentary on individual freedoms and homosexuality in Morocco.
46.
During his hearing, the alleged victim explained that he did not report the facts at the
time owing to the strong psychological impact of being attacked by Mr. Raissouni, a media
personality. The victim reported the facts during his hearing on 21 May 2020, after an
investigation had been opened ex officio based on a social media post giving rise to suspicion
of a publicly reported offence, in accordance with articles 18 and 21 of the Code of Criminal
Procedure. He produced electronic messages and a recording to support his statements. A
forensic investigation of his telephone revealed conversations with Mr. Raissouni that were
consistent with his statements.
47.
On 22 May 2020, after conducting inquiries and establishing Mr. Raissouni’s
involvement in the alleged facts, the Prosecutor General’s Office summoned him to a hearing.
Only three officers of the criminal investigation department went to Mr. Raissouni’s home to
inform him of the reasons for his summons. He was not arrested but chose to accompany the
officers to the police station as he wished to know the acts of which he stood accused. At the
police station, still at liberty, he participated in an interview in which he denied knowing the
alleged victim and refused to answer any questions, even when confronted with the evidence
against him. A search of Mr. Raissouni’s home was carried out with his written consent.
48.
On 22 May 2020, the Prosecutor General ordered that Mr. Raissouni be remanded in
police custody for 48 hours for the purposes of the preliminary investigation. This decision
was based on Mr. Raissouni’s statements after his interview, the statements of the alleged
victim, evidence and Mr. Raissouni’s inability to refute the charges. His custody was
extended for 24 hours with the written authorization of the Prosecutor General’s Office, in
accordance with article 80 of the Code of Criminal Procedure. During this period, Mr.
Raissouni was informed of the reasons for his arrest and of his right to remain silent and his
family was immediately notified of his arrest in accordance with articles 66 and 67 of the
Code of Criminal Procedure.
49.
On 25 May 2020, Mr. Raissouni was taken before the Prosecutor General and then
referred to the investigating judge, who issued a warrant of committal. On 9 July 2021, after
A/HRC/WGAD/2022/31
GE.22-11438
7
14 hearings, Mr. Raissouni was sentenced to 5 years’ imprisonment and a fine of DH
100,000. Following an appeal by the parties and the alleged victim, 12 hearings were held
from 3 October 2021; the last of which was postponed from 17 January to 31 January 2022.
50.
The Government contends that the decision to extend Mr. Raissouni’s detention was
taken in accordance with article 160 of the Code of Criminal Procedure for the needs of the
investigation, security of the persons involved and the preservation of public order. The
investigating judge examined all requests for release within the legal time limits and
dismissed them, in accordance with article 179 of the Code of Criminal Procedure, citing the
grounds that the offences in question were punishable by imprisonment and release on bail
might impede the sound administration of justice. The Government notes that decisions to
grant bail are the prerogative of the investigating judge, under the supervision of the criminal
division of the competent court, which in this case upheld each of the investigating judge’s
decisions to refuse bail.
51.
The Government notes that the arrest, prosecution, and conviction of Mr. Raissouni
were based on judicial investigations, carried out on the instructions of a judicial authority,
which established his direct and effective involvement in acts punishable under articles 436
and 485 of the Criminal Code. They have nothing to do with his status as a journalist or his
right to freedom of expression and opinion.
52.
Furthermore, the Moroccan authorities have no control over privately owned media.
Any content published by this means cannot be opposed by the authorities. Any persons
aggrieved or defamed by the press have access to all available legal remedies to assert their
rights.
53.
The Government also notes that an investigation was opened as soon as the video of
Mr. Raissouni’s arrest was released. At a hearing, the editorial director of the Chouf TV
website confirmed that this video was filmed by a paparazzo working for Chouf TV, who
had thought that he was witnessing a police check relating to the measures introduced during
the COVID-19 pandemic.
54.
According to the Government, all fundamental rights related to Mr. Raissouni’s
defence were guaranteed, in accordance with the Constitution, national law and the Covenant.
55.
Once taken into police custody, Mr. Raissouni was informed of his rights, including
the right to legal assistance, in accordance with article 66 of the Code of Criminal Procedure.
Although he did not request counsel, he was assisted by five lawyers at his hearing on 25
May 2020, seven lawyers at his hearing on 20 July 2020, and several lawyers over the course
of the trial, including two foreign lawyers. Between 10 June and 18 December 2020, his
lawyers visited him 49 times.
56.
The investigating judge informed Mr. Raissouni of the charges against him, in the
presence of his lawyers, following the preliminary hearing. On the same day, Mr. Raissouni’s
lawyer received a copy of the police report.
57.
Mr. Raissouni benefited from all due process guarantees. During the hearing, which
was attended by several international and national observers, his lawyer raised all claims
deemed relevant to demonstrating his client’s innocence. Hearings were postponed mainly at
the request of the defence. A copy of the first instance judgment was given to Mr. Raissouni
by the prison authorities and by his lawyer.
58.
According to the Government, 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 available evidence, in accordance with articles 286 and 293 of the Code of Criminal
Procedure. The decision not to summon the cleaning lady was justified by her absence from
the bedroom in which the alleged assault took place. Moreover, Mr. Raissouni’s request
included neither the identity nor the place of residence of the witnesses, which would have
allowed them to be summoned legally, nor did it state the subject of their testimony, which
would have allowed the court to ascertain its usefulness and relevance in establishing the
truth.
A/HRC/WGAD/2022/31
8
GE.22-11438
59.
The Government deplores the allegations made about the conditions of Mr.
Raissouni’s detention, particularly at the time of his trial, and stresses that the prison
administration has issued many statements clarifying these conditions. Mr. Raissouni is
detained in the medical centre of Aïn Sebaa prison in a room that meets all the requirements
for conditions of detention. He is not in solitary confinement and his room is not located near
the kitchen but in an area with 23 inmates with whom he communicates regularly. In this
regard, the Government queries how a cell adjacent to the kitchen constitutes a poor standard
of accommodation.
60.
Mr. Raissouni has the right to take a shower, the right to call his family three times a
week for 10 minutes, the right to send and receive mail and money and the right to receive
family visits. He also benefits from a balanced diet, with meals of sufficient quantity and
quality, and he regularly obtains supplies from the prison commissary. He has also received
several visits from representatives of the Prosecutor General’s Office, the Moroccan
Observatory of Prisons and the Moroccan Human Rights Organization. The National Human
Rights Council has visited the detention centre five times to observe Mr. Raissouni’s
conditions of detention and is in contact with his wife and the prison doctor to ensure his
medical follow-up.
61.
Mr. Raissouni has always been able to communicate freely with his lawyers, who have
visited him several times, most recently on 26 January 2022. Despite the temporary
suspension of visits due to the COVID-19 pandemic, family visits were organized during the
periods from 1 March to 12 April 2021, from 25 May to 19 July 2021 and from 4 October
2021 to 10 January 2022.
62.
The Government points out that searches of prisoners, which are essential for ensuring
their safety and that of the prison, are governed by the law applicable to prisons and
conducted with strict respect for their dignity.
63.
The Government denies that Mr. Raissouni refused to drink water for six days and
that he notified the local prison authorities of a thirst strike. On 19 January 2021, the
Prosecutor General’s Office was informed of his hunger strike from 20 to 22 January 2021.
On 9 April 2021, the Prosecutor General’s Office was informed of the hunger strike that
began on 8 April 2021 and ordered the prison to monitor Mr. Raissouni’s health in accordance
with procedure. Mr. Raissouni was taken to the prison infirmary and his clinical parameters
were measured daily. On 14 June 2021, a representative of the Prosecutor General’s Office
visited him to persuade him to end his hunger strike.
64.
Mr. Raissouni received daily medical visits for the duration of his hunger strike and
care was provided by the prison infirmary and by an outside hospital. According to the
Government, Mr. Raissouni was eating food obtained from the prison commissary or brought
by his family; therefore, knowing that clinical measurements would reveal the deceitful
nature of his hunger strike, he refused to receive medical care or go to hospital after 30 June
2021.
65.
On 7 August 2021, Mr. Raissouni ended his hunger strike and agreed to go to hospital.
The doctor deemed his condition to be stable and insisted on the need to resume a balanced
diet. Mr. Raissouni had a consultation on 19 August 2021 for the treatment of his high blood
pressure. He does not present any sensory-motor or cognitive deficits. As at 31 January 2022,
Mr. Raissouni had benefited from 74 consultations within the prison and 14 consultations at
outside health facilities. His general condition is good and he has gradually regained weight.
66.
Faced with Mr. Raissouni’s systematic refusal to receive medical care and the
allegations made about his health despite the clarifications and information provided by the
prison authorities questioning the authenticity of his hunger strikes, the Government was
forced to release a recording documenting Mr. Raissouni’s movements in order to preserve
the balance between protecting the rights of the detainee and maintaining public order.
Further information from the source
67.
According to the source, the Government fails to explain why it was necessary for
police officers to go to Mr. Raissouni’s home in order to summon him. On 22 June 2021, Mr.
Raissouni’s lawyers filed a complaint for forgery of public documents, as the police report
A/HRC/WGAD/2022/31
GE.22-11438
9
suggested that Mr. Raissouni had merely been summoned, when in fact he had been arrested.
The Prosecutor General at the Casablanca Court of Appeal refused to investigate the
complaint and closed the case without further action.
68.
The source deplores the authorities’ failure to justify the pretrial detention order of 25
May 2020 and the decisions to extend his custody and to refuse bail, which were composed
in generic terms and lacked any content allowing for oversight of the necessity and
proportionality of the detention in accordance with article 176 of the Code of Criminal
Procedure. Furthermore, the source considers that the Government does not explain how Mr.
Raissouni’s release on bail would impede the sound administration of justice and does not
provide any clarification regarding the expiry of the 12-month period envisaged under article
177 of the Code of Criminal Procedure.
69.
According to the source, the video of the arrest broadcast by Chouf TV was even
captioned “Arrest of Soulaimane Raissouni”, which shows that it was not filmed in order to
report on a police check in the context of the public health state of emergency. The source
observes that the video is still online and that the Government does not describe the outcome
of the hearing with the editorial director of Chouf TV.
70.
The source reiterates that, when Mr. Raissouni was taken before the Prosecutor
General and the investigating judge at the end of his police custody, his lawyers were present
but were not permitted to speak with him. The source contends that a request for Mr.
Raissouni’s lawyer to meet with him after he had been in custody for 24 hours, as provided
for in article 66 of the Code of Criminal Procedure, was rejected.
71.
Moreover, Mr. Raissouni was not given access to the indictment – a 35-page file
containing evidence against him – until February 2021 and was only allowed to see the
criminal file on his case from 1 April 2021, under the supervision of the prison
administration. He was therefore unable to prepare his defence before that date.
72.
The appeal judges also denied the request to summon the cleaning lady, despite her
presence according to the social media post of 14 May 2020, without justifying their decision
and in spite of the defendant’s right to call and examine witnesses and the principle of
equality of arms.
73.
The source maintains that holding a detainee near a kitchen to dissuade him from
pursuing a hunger strike is clearly a reprisal. As for the recording of Mr. Raissouni, the source
asserts that the Government has provided no information to prove that the prison
administration complied with the law, and that the speed of the recording was increased so
as to mask the deterioration in Mr. Raissouni’s health, in violation of article 10 of the
Covenant and article 16 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
74.
According to the source, the Government insinuates that Mr. Raissouni simulated his
hunger strike, even while admitting that he regained weight after ending it. On 23 February
2022, the Court of Appeal upheld Mr. Raissouni’s conviction.
Discussion
75.
The Working Group thanks the source and the Government for their submissions.
76.
In determining whether the deprivation of liberty of Mr. Raissouni 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
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations. Mere assertions by the
Government that lawful procedures have been followed will not be sufficient to rebut the
source’s allegations.6
6 A/HRC/19/57, para. 68.
A/HRC/WGAD/2022/31
10
GE.22-11438
Category I
77.
The source claims that Mr. Raissouni was arrested outside his home on 22 May 2020
by about 15 plain-clothed police officers who did not show a warrant or inform him of the
reasons for his arrest. Mr. Raissouni was not served with a summons before he was placed in
detention. The Government states that Mr. Raissouni was not arrested but was summoned to
a hearing with the Prosecutor. After being informed of the reasons for the summons, he
offered to accompany three police officers to the police station, where, still at liberty, he was
interviewed. On the same day, after consulting the written record of the interview, the
Prosecutor ordered that Mr. Raissouni be taken into police custody, and he was informed of
the reasons for his arrest.
78.
The Working Group finds credible the source’s allegations that Mr. Raissouni was
arrested at his home, without a warrant, on 22 May 2020. The Government has not explained
why it was necessary to dispatch three police officers to serve a summons, nor has it
responded to the source’s argument that a police summons does not empower the authorities
to arrest an individual in order to ensure his or her appearance in the course of a preliminary
investigation. The Working Group also takes note of the complaint of forgery filed by the
defence in June 2021 and the source’s allegation that the video broadcast by Chouf TV had
a caption referring to Mr. Raissouni’s arrest. The Government makes no mention of any arrest
warrant issued or produced at any stage of the proceedings.7 Article 9 (1) of the Covenant
provides that no one may be deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law. The Working Group notes that Mr. Raissouni
was arrested and placed in detention without an arrest warrant, in violation of article 9 (1).8
79.
Article 9 (2) of the Covenant provides that anyone who is arrested must be informed,
at the time of arrest, of the reasons for his or her arrest. While the source claims that Mr.
Raissouni was arrested at his home without being informed of the reasons for his arrest, the
Government maintains that he was informed of the reasons for the summons and then, upon
being taken into custody, of the reasons for his arrest. Given these conflicting accounts, the
Working Group is unable to determine whether article 9 (2) has been respected in this case.
80.
The source asserts that the police custody of Mr. Raissouni was extended beyond the
48-hour period authorized by the Code of Criminal Procedure, which also provides for the
possibility of a 24-hour extension with the written authorization of the Prosecutor. The
Government states that on 22 May 2020 the Prosecutor ordered that Mr. Raissouni be taken
into police custody for 48 hours on the basis of statements by Mr. Raissouni and the alleged
victim, supported by evidence, as well as Mr. Raissouni’s inability to refute the allegations
against him. The Prosecutor extended his custody for 24 hours, without giving a reason for
doing so, and Mr. Raissouni was not given a hearing to challenge the extension. On 25 May
2020, Mr. Raissouni was taken before the Prosecutor General and then the investigating
judge, who ordered that he be placed in detention.
81.
The Working Group is unable to determine whether the extension of the police
custody of Mr. Raissouni was authorized under the procedure set forth in the Code of
Criminal Procedure, as this question must be decided by the national courts.9 However, the
Working Group has jurisdiction to determine whether the detention is in conformity with
international human rights standards. According to article 9 (3) of the Covenant, anyone
arrested or detained on a criminal charge must be brought promptly before a judge. Forty-
eight hours is ordinarily sufficient to satisfy this obligation, and any longer delay must remain
absolutely exceptional and be justified under the circumstances.10 Mr. Raissouni was brought
before a judicial authority on 25 May 2020, three days after his arrest. As the Working Group
has indicated, including in recent cases involving Morocco,11 the lawfulness of detention
7 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
principles 2, 4 and 9.
8 Opinions No. 45/2019, para. 51; and No. 44/2019, para. 52.
9 Opinions No. 46/2020, para. 62; and No. 1/2020, para. 51.
10 Human Rights Committee, general comment No. 35 (2014), para. 33; CCPR/C/MAR/CO/6, para. 26;
and CAT/C/MAR/CO/4, para. 7.
11 See opinions No. 69/2020, No. 68/2020 and No. 85/2018.
A/HRC/WGAD/2022/31
GE.22-11438
11
must be reviewed by a judicial authority, not by a prosecutorial authority.12 Consequently,
the pretrial detention of Mr. Raissouni was contrary to article 9 (3) of the Covenant.
82.
The source contends, and the Government does not dispute, that Mr. Raissouni’s
detention has exceeded the maximum period provided for in article 177 of the Code of
Criminal Procedure. The Government states that the pretrial detention was extended in
accordance with article 160 of the Code, on the grounds of the needs of the investigation,
security and public order. In its jurisprudence, the Working Group has stated that the
continued detention of a person beyond the maximum period set by domestic law is contrary
to article 9 of the Covenant.13 Mr. Raissouni was held in pretrial detention for almost 14
months, from 22 May 2020 to 9 July 2021, well beyond the maximum time limit set by the
Code of Criminal Procedure, and in violation of article 9 of the Covenant.
83.
The source points also out that the investigating judge rejected all of the defence’s
applications for bail without justifying the need for Mr. Raissouni’s detention. The
investigating judge did not demonstrate that, if released, Mr. Raissouni was likely to abscond,
cause prejudice to the complainant, tamper with evidence or disrupt the investigation; nor did
he explain why other, less restrictive measures could not be considered. According to the
Government, the investigating judge denied the applications for bail on the grounds that the
alleged offences are punishable by imprisonment and that release on bail could impede the
sound administration of justice, in a decision upheld by the criminal division of the competent
court.
84.
According to article 9 (3) of the Covenant, pretrial detention must be the exception
and not the rule and should be ordered for as short a time as possible.14 It must be based on
an individualized determination that it is reasonable and necessary for such purposes as to
prevent flight, interference with evidence or the recurrence of crime.15 The relevant factors
should be specified in law and should not include vague and expansive standards such as
“public security”.16 Detention should not be ordered based on the potential sentence for the
crime, but should be based on a determination of its necessity. 17 Courts must examine
whether alternatives to pretrial detention, such as bail, would render detention unnecessary.18
85.
In this case, the investigating judge appears to have considered general factors – the
needs of the investigation, security and public order, the potential sentence for the crime and
the administration of justice – but not Mr. Raissouni’s particular circumstances, including his
health status.19 The Government makes no reference to the judge’s consideration of less
restrictive measures that would have rendered it unnecessary to detain Mr. Raissouni for more
than a year. Consequently, the authorities failed to establish the legal basis for Mr.
Raissouni’s detention in accordance with article 9 (3) of the Covenant.20
86.
The Working Group concludes that the arrest and detention of Mr. Raissouni were
arbitrary under category I.
Category II
87.
The source submits that Mr. Raissouni was detained for exercising his right to freedom
of expression under article 19 of the Universal Declaration of Human Rights and article 19
of the Covenant. Mr. Raissouni was arrested two days after publishing an editorial in which
he criticized the authorities for prosecuting thousands of people for breaking the law in
12 Human Rights Committee, general comment No. 35 (2014), para. 32; and A/HRC/45/16/Add.1, para.
35 (in which the Working Group notes that prosecutorial bodies do not possess the requisite degree of
independence to assess the necessity and proportionality of detention).
13 Opinions No. 64/2020, para. 50; No. 1/2020, para. 52; and No. 10/2015, para. 34.
14 A/HRC/19/57, paras. 48–58; opinions No. 64/2020, para. 58; and No. 62/2019, paras. 27–29.
15 Human Rights Committee, general comment No. 35 (2014), para. 38; and opinion No. 45/2019, para.
51.
16 Human Rights Committee, general comment No. 35 (2014), para. 38.
17 Opinion No. 4/2019, para. 65.
18 Human Rights Committee, general comment No. 35 (2014), para. 38; and opinion No. 3/2019, para.
57.
19 Opinion No. 1/2020, paras. 54 and 70.
20 Opinions No. 64/2020, para. 58; and No. 36/2020, para. 51.
A/HRC/WGAD/2022/31
12
GE.22-11438
relation to the COVID-19 pandemic. According to the source, the editorial mentioned several
high-level government officials and had a major impact in Morocco. The Government asserts
that Mr. Raissouni was prosecuted following judicial investigations that established his
involvement in the commission of acts punishable under articles 436 and 485 of the Criminal
Code, and not for the exercise of his right to freedom of expression.
88.
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, discussion of human
rights and journalism21 in any media, including newspapers,22 and guarantees the freedom to
express opinions that do not conform to government policies. 23 States must not arrest
journalists or any other persons expressing dissent or criticism of emergency powers in the
context of a public health emergency.24
89.
The Working Group considers that Mr. Raissouni’s editorial falls within the scope of
freedom of expression protected under article 19 of the Universal Declaration of Human
Rights and article 19 of the Covenant and that Mr. Raissouni has been detained for peacefully
exercising that right. This conclusion is based on all the information provided by the parties,
including the fact – which the Government has not disputed – that Mr. Raissouni was arrested
two days after the publication of the editorial, which does not appear to be a coincidence.
90.
Furthermore, the Working Group recalls that it recently considered a case concerning
Morocco in which a journalist working for the same newspaper as Mr. Raissouni was arrested
two days after publishing an editorial critical of the authorities and subsequently prosecuted
for sexual offences.25 In that case, the Working Group found that the arrest and detention of
the person in question were attributable to his investigative journalism, in violation of article
19 of the Covenant.26 In addition, the source claims, and the Government does not dispute,
that a member of Mr. Raissouni’s family, also a journalist at the newspaper Akhbar al-Youm,
was arrested in 2019 and questioned about Mr. Raissouni’s work, and that the newspaper was
forced to close in March 2021 as a result of the harassment and imprisonment of its
journalists. These examples suggest that journalists, including Mr. Raissouni, are being
targeted for exercising their freedom of expression.
91.
Since Mr. Raissouni’s editorial denounced the prosecution of individuals for breaking
laws introduced under the state of emergency declared in the context of the COVID-19
pandemic, the Working Group considers that he is also being detained for exercising his right
to take part in the conduct of public affairs, enshrined in article 21 (1) of the Universal
Declaration of Human Rights and article 25 (a) of the Covenant.27
92.
There is nothing to suggest – and the Government has not argued – that the restrictions
referred to in articles 19 (3) and 25 of the Covenant apply in the present case. The
Government has not explained why it was necessary to prosecute Mr. Raissouni to protect a
legitimate interest under these provisions, nor how sentencing him to 5 years’ imprisonment
and a heavy fine was a proportionate response to his work as a journalist. 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.
93.
The deprivation of liberty of Mr. Raissouni is therefore arbitrary under category II.
21 See opinions No. 65/2020, No. 46/2020, No. 1/2020, No. 45/2019 and No. 44/2019.
22 Human Rights Committee, general comment No. 34 (2011), paras. 11 and 12.
23 Opinions No. 8/2019, para. 55; and No. 79/2017, para. 55.
24 Working Group on Arbitrary Detention, deliberation No. 11 (A/HRC/45/16, annex II), para. 22.
25 Opinion No. 85/2018.
26 Ibid., para. 67. See also A/HRC/36/6, paras. 144.118–144.119; and CCPR/C/MAR/CO/6, paras. 43–
44.
27 Human Rights Committee, general comment No. 25 (1996), para. 8; and opinions No. 16/2020 and
No. 15/2020.
A/HRC/WGAD/2022/31
GE.22-11438
13
Category III
94.
Given its finding that Mr. Raissouni’s detention is arbitrary under category II, the
Working Group emphasizes that he should not have been put on trial.
95.
According to the source, Mr. Raissouni was unable to communicate with a lawyer
while he was held in police custody, and the lawyer’s request to speak with his client was
rejected by the Prosecutor. Furthermore, while Mr. Raissouni’s lawyers were present during
his appearances before the Prosecutor General and the investigating judge, they were not
permitted to speak with him. Under the pretext that Mr. Raissouni was in quarantine, the
authorities did not allow his lawyers to meet with him until three weeks after his arrest.
According to the Government, when Mr. Raissouni was taken into police custody, he did not
request his right to counsel, although he was informed of it. Nonetheless, he was assisted by
five lawyers at the hearing on 25 May 2020 and by seven lawyers at the hearing on 20 July
2020. He received 49 visits from his lawyers between June and December 2020.
96.
Persons deprived of their liberty have the right to legal assistance by counsel of their
choice at any time during their detention, including immediately after the moment of
apprehension, and this access is to be provided without delay or the need to obtain prior
authorization.28 The Working Group notes that Mr. Raissouni was not able to meet with his
lawyer while in police custody, during his appearances before the Prosecutor General, at the
preliminary hearing, or during the three weeks following his placement in pretrial detention.
The mere presence of a lawyer at preliminary hearings is not sufficient; the accused must be
given the opportunity to communicate in private with counsel in order to prepare a defence,
in accordance with article 14 (3) (b) of the Covenant.29
97.
Even if Mr. Raissouni’s placement in quarantine prevented physical contact between
him and his lawyers, the authorities had a duty to provide him with alternative means of
communication so that he could speak with his lawyers in a secure, cost-free and confidential
manner.30 The Working Group considers that Mr. Raissouni’s rights to have adequate time
and facilities for the preparation of a defence, to communicate with a lawyer of his choice
and to defend himself in person or through legal assistance of his own choosing, under article
14 (3) (b) and (d) of the Covenant, were violated. In addition, Mr. Raissouni was not allowed
to attend the hearing of 1 July 2021, in violation of article 14 (3) (d) of the Covenant.31
98.
The source adds that Mr. Raissouni’s lawyers did not have access to the police custody
report until the middle of June 2020 and were only able to read the indictment setting out the
evidence against him in February 2021. Mr. Raissouni was not allowed to consult the criminal
file on his case until April 2021. Given his deteriorating health, he has been unable to study
the case file, participate in the preparation of his defence, actively participate in the hearings
or give instructions to his lawyers. According to the Government, the investigating judge
informed Mr. Raissouni of the charges against him on 25 May 2020, and his lawyers received
copies of the police report the same day. Yet the Government has not explained why the
indictment was not transmitted to the defence at that time. The Working Group considers that
the failure to transmit it prevented Mr. Raissouni from preparing his defence, in violation of
article 14 (1) and (3) (b) of the Covenant.32
99.
The Government failed to mention Mr. Raissouni’s inability to participate in his own
defence. Poor health must be taken into account, as it may compromise a person’s ability to
participate in court proceedings.33 After he began a hunger strike on 8 April 2021, Mr.
Raissouni’s health condition deteriorated considerably and he required an ambulance and a
wheelchair to attend the hearings. However, the trial court, which could have ordered his
28 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 9
and guideline 8; A/HRC/45/16, para. 51; CCPR/C/MAR/CO/6, para. 26; A/HRC/27/48/Add.5, paras.
43–46 and 83 (a); and CAT/C/MAR/CO/4, para. 7.
29 Opinion No. 68/2020, para. 83.
30 Working Group on Arbitrary Detention, deliberation No. 11 (A/HRC/45/16, annex II), paras. 20–21.
31 Opinion No. 60/2020, para. 94.
32 Opinion No. 29/2021, paras. 60–61.
33 Opinions No. 59/2019, para. 69; No. 29/2017, para. 63; and No. 46/2014, para. 37.
A/HRC/WGAD/2022/31
14
GE.22-11438
release on bail, transported him in an ambulance or provided him with a wheelchair,
completely disregarded his poor health; on the contrary, it issued him with a caution for
failing to appear and issued a ruling in his absence. The continuation of Mr. Raissouni’s trial
despite the deterioration of his physical health violated the principle of equality of arms and
the right of everyone to a fair hearing, enshrined in article 14 (1) of the Covenant.
100.
The source regrets the judge’s refusal to summon the cleaning lady or to hear the
alleged victim and the admission into evidence of the testimony of Mr. Raissouni’s wife.
According to the Government, it was for the judge to decide whether to call a witness; the
refusal to summon the cleaning lady was justified by her absence from the bedroom where
the alleged offence took place. In addition, the court was not provided with sufficient
information about the witnesses’ identity or place of residence, or the usefulness of their
testimony.
101.
The Government has not submitted a convincing argument as to why the court did not
seek to obtain more information with a view to calling the cleaning lady – a key witness said
to have been present at the time of the alleged assault. In addition, it has failed to explain
why the alleged victim was not called to testify at the trial. The authorities’ refusal to hear
the testimony of the cleaning lady and the alleged victim constitutes a violation of article 14
(1) and (3) (b), (d) and (e) of the Covenant.34 The Government has also failed to explain the
court’s decision to hold the hearings of Mr. Raissouni and another journalist simultaneously,
thus complicating the work of the defence team representing both defendants. The Working
Group refers the present case to the Special Rapporteur on the independence of judges and
lawyers.
102.
The Working Group notes that a media outlet, which had issued threats against Mr.
Raissouni five days previously, was present at the scene of the arrest, which it filmed.
According to the Government, the representative of the media outlet believed that he was
reporting on a police check to enforce laws adopted under the state of emergency declared
during the COVID-19 pandemic. However, this does not explain the media outlet’s presence
outside Mr. Raissouni’s home at the precise moment of his arrest, which suggests that it had
been informed beforehand. Furthermore, the video caption suggests that the media outlet had
gone to the scene for the purpose of filming Mr. Raissouni’s arrest.
103.
The media should avoid news coverage undermining the presumption of innocence.35
While in this case the media outlet was not a public entity, it reportedly maintains ties with
the intelligence services and in all likelihood had prior knowledge of the arrest. The Working
Group cannot rule out the possibility that the video filmed by the media outlet in question, in
a high-profile case involving a well-known journalist, contributed to the creation of a
negative public image of Mr. Raissouni, in violation of his right to the presumption of
innocence guaranteed by article 14 (2) of the Covenant.36
104.
According to the source, the prison director refused to provide Mr. Raissouni with a
copy of the first instance judgment. According to the Government, Mr. Raissouni obtained a
copy of the decision from the prison administration and his lawyer. Since the defence had a
copy of the judgment and an appeal was filed, the Working Group concludes that in this
regard there was no violation of Mr. Raissouni’s rights, including his right of appeal.
105.
Lastly, the Working Group considers that the proceedings against Mr. Raissouni were
unacceptably delayed, in violation of articles 9 (3) and 14 (3) (c) of the Covenant. The right
to be tried without undue delay relates to the time between the formal charging of the accused
and the final judgment on appeal,37 a period that in this case lasted almost two years. While
it is true that some postponements were attributable to the defence and to Mr. Raissouni’s
health, the postponement of appeal hearings led to further unexplained delays. Given that Mr.
Raissouni’s detention is arbitrary under category II, the Working Group considers that the
delays in adjudicating his case were excessive.38
34 CCPR/C/MAR/CO/6, paras. 33–34.
35 Human Rights Committee, general comment No. 32 (2007), para. 30.
36 Opinion No. 59/2020, para. 81.
37 Human Rights Committee, general comment No. 32 (2007), para. 35.
38 Opinions No. 10/2021, para. 78; No. 16/2020, para. 77; and No. 8/2020, para. 75.
A/HRC/WGAD/2022/31
GE.22-11438
15
106.
The Working Group concludes that the violations of the right to a fair trial are of such
gravity as to give Mr. Raissouni’s detention an arbitrary character under category III.
107.
The Working Group’s conclusions as to the arbitrary nature of Mr. Raissouni’s arrest
and detention are based on the specific elements of this case. The Working Group considers
that the appropriate action would be to immediately release Mr. Raissouni. Nonetheless, these
conclusions should not be interpreted as minimizing the seriousness of all violence, including
sexual violence. It is particularly important to combat violence, including sexual violence, in
which regard States have an obligation to investigate the facts, prosecute perpetrators and
ensure that defendants receive a fair trial.39
Concluding remarks
108.
The Working Group expresses its grave concern for the physical and psychological
well-being of Mr. Raissouni, who undertook a hunger strike from April to August 2021, with
many after-effects. Notwithstanding the Government’s claims regarding the medical care
provided to Mr. Raissouni and his current state of health, the Working Group wishes to
remind the Government of its obligation to provide health care to detainees, in accordance
with rules 24 to 35 of the Nelson Mandela Rules. 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.
109.
The Working Group takes note of the submissions of the source and the Government
concerning the video of Mr. Raissouni that was released by the General Delegation for Prison
Administration and Reintegration. However, it notes that the Government does not explain
why other means of achieving the desired goal, namely to preserve the balance between
protecting the prisoner’s rights and maintaining public order, could not be considered. The
Working Group considers that the release of the video constitutes a violation of Mr.
Raissouni’s right to be treated with humanity and with respect for the inherent dignity of the
human person, as enshrined in article 10 (1) of the Covenant. Mr. Raissouni’s right not to be
subjected to degrading treatment and his right to privacy, enshrined in articles 7 and 17 of
the Covenant, may also have been violated. The Working Group refers the present case to
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment and the Special Rapporteur on the right to privacy.
110.
Mr. Raissouni was prosecuted for “indecent assault and false imprisonment” under
articles 436 and 485 of the Criminal Code. The Working Group, considering that the issues
raised by the source40 merit closer consideration, refers the matter to the Independent Expert
on protection against violence and discrimination based on sexual orientation and gender
identity.
Disposition
111.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Soulaimane Raissouni, being in contravention of articles
9, 10, 11 (1), 19 and 21 (1) of the Universal Declaration of Human Rights and articles
9, 10 (1), 14, 19 and 25 (a) of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, II and III.
112.
The Working Group requests the Government of Morocco to take the steps necessary
to remedy the situation of Mr. Raissouni 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.
113.
The Working Group considers that, taking into account all the circumstances of the
case, including the risk of harm to Mr. Raissouni’s health, the appropriate remedy would be
to release him immediately and accord him an enforceable right to compensation and other
reparations, in accordance with international law. 41 In the current context of the global
39 Opinion No. 85/2018, para. 74.
40 See paragraph 26 above.
41 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I).
A/HRC/WGAD/2022/31
16
GE.22-11438
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.
Raissouni.
114.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Raissouni and to take appropriate measures against those responsible for the violation of his
rights.
115.
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 independence of judges
and lawyers, the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the right to
privacy and the Independent Expert on protection against violence and discrimination based
on sexual orientation and gender identity, for appropriate action.
116.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
117.
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. Raissouni has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Raissouni;
(c)
Whether an investigation has been conducted into the violation of Mr.
Raissouni’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.
118.
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.
119.
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.
120.
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.42
[Adopted on 6 April 2022]
42 Human Rights Council resolution 42/22, paras. 3 and 7.