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.23-18626 (E) 120124 **0124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-sixth session, 27 March–5 April 2023
Opinion No. 23/2023, concerning Sidi Abdallah Abbahah, Mohamed El
Bachir Boutangiza, Mohamed Bani, Abdel Jalil Laaroussi, Abdulahi
Lakhfaouni, Ahmed Sbai, Sid’Ahmed Lemjaid, Brahim Ismaili,
Mohammed Khouna Babait, Mohamed Embareh Lefkir, Ennaâma
Asfari, Mohamed Bouryal, Mohamed Lamin Haddi, El Hasane Azaoui,
Abdellah Toubali, El Bachir Khadda, El Hassan Eddah and Mohamed
Tahlil (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 51/8.
2.
In accordance with its methods of work,1 on 13 December 2022 the Working Group
transmitted to the Government of Morocco a communication concerning Sidi Abdallah
Abbahah, Mohamed El Bachir Boutangiza, Mohamed Bani, Abdel Jalil Laaroussi, Abdulahi
Lakhfaouni, Ahmed Sbai, Sid’Ahmed Lemjaid, Brahim Ismaili, Mohammed Khouna Babait,
Mohamed Embareh Lefkir, Ennaâma Asfari, Mohamed Bouryal, Mohamed Lamin Haddi, El
Hasane Azaoui, Abdellah Toubali, El Bachir Khadda, El Hassan Eddah and Mohamed Tahlil.
The Government replied to the communication on 10 March 2023. 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);
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/23
General Assembly
Distr.: General
11 October 2023
English
Original: French
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(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.
Submissions
(a)
Communication from the source
4.
Sidi Abdallah Abbahah, Mohamed El Bachir Boutangiza, Mohamed Bani, Abdel Jalil
Laaroussi, Abdulahi Lakhfaouni, Ahmed Sbai, Sid’Ahmed Lemjaid, Brahim Ismaili,
Mohammed Khouna Babait, Mohamed Embareh Lefkir, Ennaâma Asfari, Mohamed
Bouryal, Mohamed Lamin Haddi, El Hasane Azaoui, Abdellah Toubali, El Bachir Khadda,
El Hassan Eddah and Mohamed Tahlil (hereinafter, the “18 individuals”) were reportedly
arrested during the dismantling of the Gdeim Izik camp, set up on the outskirts of Laayoune
and Smara, in which 15,000 Saharans had gathered to protest against economic and social
discrimination in respect of Saharans by the Moroccan authorities. It is alleged that, on 8
November 2010, at around 6 a.m., without prior warning, the authorities dismantled the camp
and made hundreds of arrests.
5.
The Government reportedly justified the arrest of the 18 individuals on the basis that
criminal acts had taken place before and during the dismantling of the camp, claiming that
the purpose of the camp was to destabilize the region and threaten national security. The
Government stated that a mob had attacked law enforcement officers and public buildings.
(i)
Arrests and detentions
6.
Mr. Boutangiza and Mr. Abbahah, born in 1974 and 1975, respectively, were
reportedly arrested on 19 November 2010.
7.
Mr. Bani, born in 1969, was reportedly arrested on 8 November 2010 as he attempted
to leave the camp, where he was visiting relatives. The police accused him of running over
an officer.
8.
It is reported that Mr. Laaroussi, born in 1978, was arrested on 12 November 2010 at
a relative’s home in Boujdour, where he had been since 7 November 2010.
9.
Mr. Lakhfaouni is a Saharan journalist born in 1974. He is said to have been a
participant in the camp and helped with its running. On 5 November 2010, he allegedly
prevented the governor of Laayoune from entering the camp. In consequence, police officers
burst into his relatives’ home on 12 November 2010 and arrested Mr. Lakhfaouni.
10.
Mr. Sbai, born in 1978, is one of the founders of the Ligue pour la protection des
prisonniers politiques sahraouis dans les prisons marocaines (Sahrawi Prisoners’ Protection
League). Reportedly detained in 2002 and 2006 because of his activism, he was arrested
again on 8 December 2010, in Lirak District.
11.
Mr. Lemjaid, born in 1959, is the Chair of the Comité de soutien au plan de résolution
onusien et pour la protection des ressources naturelles au Sahara occidental (Committee for
the Support of the United Nations Settlement Plan and for the Protection of Natural Resources
in Western Sahara). He was allegedly arrested on 26 December 2010 and taken to an
unknown location. Mr. Lemjaid is said to have visited the camp as a human rights activist to
interview people about their demands and their situation.
12.
Mr. Ismaili, born in 1970, is the Chair of the Centre pour la conservation de la
mémoire collective sahraouie (Centre for the Preservation of Saharan Collective Memory).
In 1987, he was allegedly held incommunicado for months. It is claimed that, on 9 November
2010, he was arrested again, at his home in Laayoune. After seven months in detention,
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Mr. Ismaili was reportedly released on 13 May 2011, only to be immediately rearrested
outside the prison gates and taken to Salé prison.
13.
Mr. Babait, born in 1981, worked in the local administration in Laayoune and
allegedly took part in demonstrations demanding the release of prisoners following the
dismantling of the camp, despite threats from the authorities. He is reported to have been
arrested on 15 August 2011.
14.
Mr. Lefkir, born in 1978, was part of a delegation of Saharan human rights defenders
invited to Algiers. On 12 November 2010, he was allegedly abducted from a relative’s home
by masked, plainclothes police officers, after being beaten in front of his family. He was held
in Laayoune prison until 17 June 2011. It is claimed that, following his release, he was
immediately rearrested after leaving the prison. Although he was present in the camp on
8 November 2010, he reportedly fainted during the first hours of the camp’s dismantling,
owing to tear gas, and was conveyed home by his family.
15.
Mr. Asfari, born in 1970, is Vice-Chair of the Comité pour le respect des libertés et
des droits humains au Sahara occidental (Committee for the Respect of Freedoms and Human
Rights in Western Sahara). It is reported that he was detained for four months in 2009 for
possession of a key ring depicting the Saharan flag, then arrested again on 7 November 2010,
the day before the camp was dismantled.
16.
Mr. Bouryal, born in 1976, was a member of the Comité de dialogue avec le
Gouvernement marocain (Committee for Dialogue with the Moroccan Government). He
allegedly participated in the camp and was arrested by the army on 8 November 2010, in the
camp.
17.
Mr. Azaoui, born in 1975, was a participant in the Gdeim Izik camp and was also a
member of the Comité de dialogue avec le Gouvernement marocain. He was reportedly
arrested on 3 December 2010. It is claimed that he was present in the camp on 8 November
2010 but fainted owing to tear gas, waking up the next day in hospital.
18.
Mr. Toubali, born in 1980, was also a member of the Comité de dialogue avec le
Gouvernement marocain. He is reported to have been struck by a police car on 7 November
2010 and taken to hospital in Laayoune. The next day, the day that the camp was dismantled,
he returned home in critical condition and was visited by a member of the parliament, whom
the court of appeal refused to call as a witness. He was allegedly arrested on 2 December
2010.
19.
Mr. Khadda, born in 1986, is a Saharan journalist and member of the Observatoire
sahraoui des droits de l’homme au Sahara occidental (Saharan Observatory for Human Rights
in Western Sahara). Mr. Eddah, born in 1987, is a Saharan journalist and human rights
activist. In 2010, he was reportedly detained for 10 months because of his political views. He
is said to have participated in the Gdeim Izik camp as a correspondent for the television and
radio service of the Frente Popular para la Liberación de la Saguía el-Hamra y del Río de Oro
(Frente POLISARIO). Mr. Tahlil, born in 1981, is the Chair of the Boujdour section of the
Association sahraouie des victimes de graves violations des droits humains (Sahrawi
Association of Victims of Grave Human Rights Violations Committed by the Moroccan
State). He was allegedly imprisoned for his activism in 2005 and 2007. According to the
source, Mr. Khadda, Mr. Eddah and Mr. Tahlil were arrested together on 4 December 2010,
in a café in Laayoune.
20.
It is reported that Mr. Boutangiza, Mr. Tahlil, Mr. Abbahah, Mr. Ismaili, Mr. Toubali,
Mr. Lemjaid, Mr. Khadda, Mr. Eddah, Mr. Babait, Mr. Asfari and Mr. Laaroussi were not
present in the Gdeim Izik camp on the day it was dismantled. Moreover, Mr. Tahlil had never
been to the camp.
21.
The source claims that each of the 18 individuals was subjected to torture and inhuman
treatment and signed statements and confessions under torture. The Committee against
Torture concluded that the continued detention of Mr. Abbahah, Mr. Asfari and Mr. Bouryal
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was based on confessions signed under torture, in violation of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.2
22.
Mr. Abbahah, Mr. Boutangiza, Mr. Bani, Mr. Laaroussi, Mr. Lakhfaouni and Mr. Sbai
were charged with forming a criminal organization and with intentional homicide, and the
other men with participation in homicide and intentional homicide. On 17 February 2013, the
18 individuals were sentenced to terms ranging from 20 years’ to life imprisonment. They
were transferred to the Salé 2 prison, where they were allegedly subjected to further acts of
torture and inhuman treatment. Following their appeals in cassation, on 25 November 2016,
the 18 individuals were informed that a new trial would take place before the Salé court of
appeal, as the 2013 judgment had been deemed null and void.
23.
The prosecutor and the parties claiming damages are said to have portrayed the 18
individuals in the media as terrorists and murderers, so that by the time they appeared before
the court of appeal, the national media had made it seem that they were guilty and had been
responsible for the events in the Gdeim Izik camp.
24.
At the court of appeal, the 18 individuals were reportedly held in a glass cage, which
prevented them from following the proceedings. Loudspeakers were installed in January
2017. The court refused to release the defendants provisionally. On 23 January 2017, the
defence lawyers, having been unable to meet with their clients, requested more time to
prepare their case, to no avail. The following day, the defendants were reportedly deprived
of pens and paper, as the judge felt that they could be used as weapons. The judge granted
the 18 individuals’ requests for medical examinations, provided that they were carried out by
three State doctors.
25.
On 13 March 2017, a compact disc containing images – allegedly manipulated –
depicting the Gdeim Izik camp as a place of violent resistance is reported to have been
presented as evidence. The defendants were also questioned and testified that they had been
subjected to severe torture and forced to sign pre-written or blank statements.
26.
On 8 May 2017, witnesses were reportedly called. Only three of the defence witnesses
were accepted; the majority of the witnesses who could testify that the defendants had been
absent from the camp were rejected. The prosecution’s witnesses, on the other hand, were all
accepted and gave entirely new testimony. The 18 individuals denounced the false testimony
of one witness, which corresponded exactly to what was written in the police reports, and
urged the court to investigate the origin of the new witnesses. Their protests prompted the
prosecutor to shout at the judge, who declined to initiate an investigation or to verify the
credibility of the witness in question.
27.
On 16 May 2017, owing to the court’s lack of impartiality and following the
submission of several petitions and protests to the court, the 18 individuals and their lawyers
withdrew from the proceedings. The judge appointed four lawyers to represent the
defendants, two of whom also represented the parties claiming damages. The new lawyers’
request for time to prepare the defence was denied, and they never obtained full access to the
case file. Nor did they make any attempt to contact the 18 individuals, who saw their new
lawyers only on the television news.
28.
On 18 May 2017, the officers accused of torturing the 18 individuals denied the acts.
The prosecutor stated that the court should trust public officials. Once again, the judge
declined to initiate an investigation.
29.
On 5 June 2017, the court-ordered medical examinations were presented, with the
reports concluding that none of the prisoners had been tortured. The judge declined to ask
further questions, despite the obvious signs of torture on the defendants’ bodies during the
March hearings. The Committee against Torture considered that the examinations were not
carried out in accordance with the Manual on the Effective Investigation and Documentation
2 See, inter alia, Asfari v. Morocco (CAT/C/59/D/606/2014); and Abbahah v. Morocco
(CAT/C/72/D/871/2018).
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of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol).3
30.
It is claimed that, on 19 July 2017, 10 minutes after adding the evidence to the case
file, including the police reports allegedly signed under torture, the judge handed down his
verdict, sentencing Mr. Abbahah, Mr. Boutangiza, Mr. Bani, Mr. Laaroussi, Mr. Lakhfaouni,
Mr. Sbai, Mr. Lemjaid and Mr. Ismaili to life imprisonment, Mr. Asfari and Mr. Bouryal to
30 years’ imprisonment, Mr. Babait, Mr. Lefkir, Mr. Haddi, Mr. Eddah and Mr. Azaoui to
25 years’ imprisonment and Mr. Toubali, Mr. Khadda and Mr. Tahlil to 20 years’
imprisonment. With the exception of Mr. Eddah’s sentence, which was reduced from 30 to
25 years’ imprisonment, the sentences were identical to those passed by the military court in
2013. The Court of Cassation confirmed the verdict and the sentences on 25 November 2020.
31.
The 18 individuals, scattered across six prisons, were allegedly subjected to physical
and psychological torture, harassment and increased isolation, in retaliation for their
advocacy of the right to self-determination and their withdrawal from the appeal process.
32.
It is reported that Mr. Khadda, Mr. Haddi and Mr. Abbahah, who are detained in the
Tiflet 2 prison, and Mr. Ismaili, Mr. Bani, Mr. Bouryal and Mr. Lemjaid, who are detained
in the Aït Melloul 1 and 2 prisons, have been held in solitary confinement since 16 September
2017. Mr. Azaoui, Mr. Eddah, Mr. Lakhfaouni, Mr. Sbai, Mr. Boutangiza and Mr. Asfari are
in Kenitra prison, Mr. Babait and Mr. Toubali in Bouizakarne prison, Mr. Lefkir and
Mr. Laaroussi in Tan-Tan prison, and Mr. Tahlil in Aïn Borja prison. The 18 individuals are
allegedly subjected to discrimination, threats, intimidation, medical negligence and physical
abuse and are deprived of contact with the outside world. There has been no news of
Mr. Tahlil since his transfer to Aïn Borja in November 2021. Reportedly, the men’s families
are often prevented from visiting them after making the long journey to the prisons.
Telephone conversations are restricted, increasing the isolation of the 18 individuals, and
their calls with their lawyers are monitored.
33.
The 18 individuals are said to have staged hunger strikes to protest against their
conditions of detention and to obtain their transfer to a prison in Western Sahara. Mr. Haddi
was allegedly threatened with death by the prison director. Nothing more was heard of him
until 22 March 2021. His family’s enquiries about his state of health reportedly went
unanswered. He disappeared again from 15 June to 24 September 2021. According to the
source, he was kept in complete isolation for 70 days in an unsanitary cell, under constant
surveillance, and subjected to daily intimidation.
34.
The source notes that the Working Group documented the conditions of detention and
the state of health of the 18 individuals during its visit to Morocco in 2013. To this day, they
continue to suffer from medical neglect and from chronic illnesses due to torture and to their
conditions of detention.
(ii)
Legal analysis
a.
Category I
35.
The source notes that article 23 of the Constitution prohibits any arrest except in
accordance with the law and that article 140 of the Code of Criminal Procedure requires that
a detainee be brought before a judge and have access to his or her lawyer within 24 hours of
arrest.
36.
According to the source, none of the 18 individuals was shown an arrest warrant at
the time of their arrest and none appeared before a judge or had access to a lawyer within the
next 24 hours, contrary to the provisions of article 140 of the Code of Criminal Procedure.
They were reportedly brought before a judge in a deplorable state, after being held for
between two and five days and subjected to torture and political interrogation and without
being asked a single question about the events at the Gdeim Izik camp. Each of the 18
individuals reportedly told the judge that they had been arrested because of their political
opinions and had been tortured, as evidenced by the marks on their bodies. According to the
3 See M.B. v. Morocco (CAT/C/72/D/923/2019).
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source, some of the 18 individuals were unable to walk, and one of them was carried before
the judge on a bloodstained blanket. The judge nevertheless ordered their detention.
37.
The source therefore submits that the detention of the 18 individuals has no legal basis,
contrary to article 9 of the Universal Declaration of Human Rights and article 9 of the
Covenant, and is thus arbitrary under category I.
b.
Category II
38.
According to the source, the detention of the 18 individuals results from their exercise
of the rights guaranteed by articles 18, 19, 21 and 22 of the Covenant.
39.
The Saharan people are allegedly subjected to the systematic and systemic use of
force, abduction, torture and arbitrary arrest and detention, in order to silence their calls for
self-determination and independence.4 Saharan individuals are subjected to unfair trials and
imprisonment on trumped-up charges.5
40.
According to the source, the Gdeim Izik camp was one of the largest demonstrations
organized in Western Sahara since the ceasefire came into force in 1991.6 The clashes on the
morning of 8 November 2010 are said to have been the motive for the arrest of 25 activists,
human rights defenders, journalists, lawyers and demonstrators, including the 18 individuals.
41.
The source claims that the 18 individuals were held responsible for the clashes that
followed the dismantling of the camp, without the slightest evidence. The source adds that
sporadic acts of violence or offences by some should not be attributed to others whose
intentions and behaviour remained peaceful, and asserts that the 18 individuals cannot
therefore be held responsible for the actions of others and the events that followed the
authorities’ attack on the demonstrators.7
42.
Furthermore, the source points out that the 18 individuals were questioned solely
about their activism and their relations with the Frente POLISARIO, and not about any
criminal activities. The source asserts that, insofar as the detention of the 18 individuals
results from their peaceful exercise of rights guaranteed by the Covenant, it is arbitrary under
category II.
c.
Category III
43.
According to the source, the proceedings held before the court of appeal from
26 December 2016 to 19 July 2017, whose outcome the Court of Cassation upheld in
November 2020, failed to meet the requirements of the right to a fair trial.
44.
The source asserts that the Moroccan judiciary is not independent, in violation of
article 14 (1) of the Covenant. 8 The source denounces the use of torture during initial
interrogations, and convictions based on reports written by the police and confessions signed
in the absence of a lawyer.9 The source deplores the culture of impunity within the judicial
system, as a result of which allegations of torture are not properly investigated, perpetrators
are not prosecuted, and judges and prosecutors fail in their duties.
45.
The judge allegedly tried to weaken the exculpatory evidence while rejecting the
majority of the questions put by the defence. The defence witnesses were questioned in detail,
4 See CAT/C/MAR/CO/4; A/HRC/22/53/Add.2; A/HRC/27/48/Add.5; and opinions No. 21/1993,
No. 3/1994 and No. 54/2013.
5 See S/2018/277.
6 S/2011/249, paras. 2–10 and 96.
7 A/HRC/31/66, para. 20; opinion No. 22/2017, para. 36; and European Court of Human Rights,
Ziliberberg v. Moldova, Application No. 61821/00, Judgment of 1 February 2005.
8 See Oló Bahamonde v. Equatorial Guinea (CCPR/C/49/D/468/1991); and Inter-American
Commission on Human Rights, Report on Terrorism and Human Rights (OEA/Ser.L/V/II.116,
Doc. 5 rev. 1 corr.), 22 October 2002.
9 See opinions No. 40/2012, No. 3/2013, No. 19/2013, No. 25/2013, No. 54/2013, No. 27/2016,
No. 11/2017, No. 31/2018, No. 58/2018, No. 60/2018, No. 23/2019, No. 67/2019, No. 52/2020,
No. 68/2020 and No. 46/2021.
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with the aim of drawing contradictory answers from them, while not a single question was
put to the prosecution witnesses that could have undermined their statements.
46.
It is alleged that falsified police reports and confessions signed under torture were
used against the 18 individuals. In response to the allegations of torture raised during the trial,
the President of the court of appeal reportedly declared that the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and the decision of the
Committee against Torture concerning Mr. Asfari had no legal force in his court. The source
denounces the court’s lack of impartiality, noting that the defence’s multiple applications for
the judge to initiate an investigation into the prosecution’s evidence, allow independent
medical examinations and summon defence witnesses were all rejected.
47.
According to the source, the upholding of the 18 individuals’ convictions is linked to
the escalation of the armed conflict between Morocco and the Frente POLISARIO on
13 November 2020. This demonstrates the lack of independence and impartiality of the
judiciary. In addition, the source denounces the fact that the President of the Court of
Cassation and 5 of its 20 members are appointed by the King of Morocco.
48.
The source reports that, while each of the 18 individuals was subjected to acts of
torture while they were being questioned about their activism, they were never asked about
the events at the Gdeim Izik camp. It is alleged that the records of their interrogation were
signed under duress, the statements contained in the records were falsified or left partially
blank and none of the 18 individuals was able to read them before signing.
49.
The 18 individuals reportedly informed the investigating judges of the torture they
said they had suffered. During the proceedings before the court of appeal in March 2017,
Mr. Lefkir stated that a guard had threatened him with further torture if he did not sign
statements. Mr. Azaoui showed the judge his scars and claimed that he had been subjected to
ill-treatment and torture. Likewise, Mr. Lemjaid showed his scars to the judge and requested
a medical examination, in vain. A doctor reportedly told Mr. Lemjaid that he could not help
him because he was being pressured.
50.
The source claims that the main evidence used against the 18 individuals was the
reports written by the officers who arrested them and are accused of torturing them. This
testimony was used to prove the veracity of the police and gendarmerie reports. The source
points out that the use of evidence obtained through torture fundamentally taints the
proceedings and compromises the right to a fair trial.
51.
To this day, the 18 individuals do not know the identity of the law enforcement
officers whose killing they were charged with. The source maintains that they have been
convicted collectively of serious crimes without ever having been informed of the charges
against them, which is contrary to the provisions of articles 9 and 14 (3) (a) of the Covenant.
52.
According to the source, the defence was not able to properly challenge the police
files, the evidence obtained or the statements of the prosecution witnesses, in violation of
article 14 of the Covenant. While the parties claiming damages and the prosecutor were
allowed to put their questions, the defence was constantly interrupted by the judge, the
prosecutor and the parties claiming damages. The defence was forbidden to mention the
reason for the setting up of the protest camp, the general living conditions of Saharans in
Western Sahara or the nature of the camp’s dismantling. The defence was not allowed to
present evidence or question its own witnesses. Applications to call defence witnesses were
rejected and, as a result, only the prosecution’s witnesses were heard.
53.
Lastly, defence counsel were prevented from meeting their clients, despite numerous
requests. The meetings that were authorized took place in the presence of prison guards, in
violation of article 14 (3) (b) and (d) of the Covenant.
d.
Category V
54.
The source recalls that the 18 individuals are Saharans and that Saharans defending
the right to self-determination are persecuted and systematically targeted by the authorities.10
10 A/HRC/27/48/Add.5, paras. 62–71.
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55.
The source claims that the 18 individuals were targeted because of their Saharan
identity and their political opinions regarding the Saharan people’s right to
self-determination, in violation of articles 1, 2, 26 and 27 of the Covenant.11 The source notes
that, as early as October 2010, the Gdeim Izik camp was surrounded by armed trucks,
helicopters and military vehicles, and subjected to roadblocks and checkpoints. On
24 October 2010, police reportedly opened fire on a food truck, killing a 14-year-old child.
56.
In addition, the source maintains that, during the trial of the 18 individuals, the parties
claiming damages interrupted the defence’s argument concerning the relevance of
humanitarian law in the case of the individuals, declaring that the Saharans were Moroccans
by virtue of their identity cards. The source asserts that, by denying the existence of a local
population with a different nationality, and by stating that neither international law nor
humanitarian law was relevant, the court violated article 47 of the Geneva Convention
relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).
57.
Lastly, the source asserts that the systemic and systematic use of arrest, torture and
detention to silence calls for self-determination and force people protected under
international humanitarian law to pledge allegiance violate article 45 of the Regulations
respecting the Laws and Customs of War on Land (Hague Regulations) and article 147 of the
Fourth Geneva Convention.
(b)
Response from the Government
58.
On 13 December 2022, the Working Group transmitted a communication to the
Government requesting it to provide detailed information on the 18 individuals by
13 February 2023 at the latest.
59.
On 11 January 2023, the Government requested an extension of the deadline and was
given until 13 March 2023 to reply.
60.
On 10 March 2023, the Government submitted its response, in which it stated that it
had provided the necessary clarifications in its replies to the joint communications received
from the special procedure mandate holders and the communications of the Committee
against Torture.
61.
The Government contests the source’s allegations. It notes that the military court’s
jurisdiction in the case was provided for in the former Code of Military Justice, but that,
following the reform of this Code, it is now prohibited to bring a civilian before a military
court. The Court of Cassation overturned the judgment of the military court and referred the
case to the Rabat court of appeal. The families of the victims reportedly sued for damages in
criminal proceedings.
62.
According to the Government, the Gdeim Izik camp was set up following a campaign
to encourage the local population to move to areas near Laayoune, in order to take advantage
of social benefits. A dialogue was established between the population and the authorities
who, after launching appeals for people to leave the area, were obliged to take the decision
to dismantle the camp on the basis of imperatives linked to public order and public safety.
63.
On 8 November 2010, at around 6.30 a.m., the Royal Gendarmerie reportedly
dismantled the camp, providing transport for evacuation to Laayoune.
64.
Some individuals allegedly refused to leave and attacked the unarmed law
enforcement officers, resulting in the death of 10 officers and 1 member of the civil protection
force. Other officers were injured and public property was vandalized. Clashes followed in
Laayoune, during which an auxiliary officer was murdered and acts of vandalism and theft
were committed. An investigation was opened on 8 November 2010.
65.
On 17 February 2013, the military court reportedly handed down its verdict following
a public trial open to international and national observers. Following an appeal in cassation,
the military court’s decision was overturned, and the case was referred to a civilian court.
11 See opinion No. 67/2019.
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GE.23-18626
9
The trial took place before the criminal division of the Rabat court of appeal from
26 December 2016 to 19 July 2017.
66.
On 19 July 2017, after 31 hearings, the court of appeal handed down its verdict. On
25 November 2020, the Court of Cassation dismissed the appeal lodged on 29 September
2017.
67.
The Government asserts that national laws apply without exception in all regions of
Morocco, including the southern provinces, in accordance with the Constitution and the
international obligations of Morocco. It recalls that article 23 of the Constitution prohibits
arbitrary detention, and asserts that the persons concerned were arrested and convicted in
connection with offences under ordinary law by a competent and independent tribunal,
following a procedure that respected the rights of the defence.
68.
According to the Government, the arrest and detention in police custody of the 18
individuals complied with procedure, and their families were notified of their arrest in
accordance with article 67 of the Code of Criminal Procedure and as mentioned in the records
of their interrogation.
69.
According to the Government, Mr. Boutangiza and Mr. Abbahah12 were arrested on
20 November 2010 in Laayoune and held in police custody until the following day, on the
instructions of the competent public prosecutor’s office.
70.
Mr. Asfari and Mr. Bouryal were arrested in flagrante delicto on 8 November 2010,
during the operation to dismantle the camp. Mr. Bani was also arrested in flagrante delicto
on 8 November 2010. They were each taken into police custody on the same day and held
until 11 November 2010, after the custody period had been extended for 24 hours with the
written authorization of the competent public prosecutor’s office.
71.
Mr. Laaroussi13 was the subject of two wanted notices, issued on 12 and 13 November
2010. He was arrested on 13 November 2010 in Laayoune and immediately placed in police
custody, where he remained until 15 November 2010, following the extension of the custody
period for 24 hours with the written authorization of the competent public prosecutor’s office.
He was not transferred to any other location.
72.
Mr. Lakhfaouni14 was arrested on 13 November 2010, in an abandoned dwelling in
Laayoune. He was held in police custody until 15 November 2010, following the extension
of the custody period for 24 hours with the written authorization of the competent public
prosecutor’s office.
73.
Mr. Sbai was the subject of a wanted notice issued on 13 November 2010. He was
arrested on 9 December 2010 and held in police custody until 11 December 2010, on the
instructions of the competent public prosecutor’s office.
74.
Mr. Lemjaid15 was the subject of a wanted notice issued on 2 December 2010. He was
arrested on 25 December 2010 and held in police custody until 27 December 2010, on the
instructions of the competent public prosecutor’s office.
75.
Mr. Ismaili was arrested on 10 November 2010, in the vicinity of the Moulay El
Hassan Ben Mehdi hospital in Laayoune, and held in police custody until 12 November 2010,
on the instructions of the competent public prosecutor’s office.
76.
According to the Government, Mr. Sbai, Mr. Lemjaid and Mr. Ismaili confessed to
killing a security guard and setting fire to government buildings.
77.
Mr. Babait16 was arrested on 15 August 2011, near his home, on the basis of a wanted
notice issued on 14 November 2010. He was held in police custody until 17 August 2011,
after the custody period was extended for 24 hours with the written authorization of the
competent public prosecutor’s office.
12 Referred to by the Government as Sidi Abdallah Abbahah.
13 Referred to by the Government as Sidi Abdel Jalil Laaroussi.
14 Referred to by the Government as Abdellah Lekhfaouni.
15 Referred to by the Government as Sidi Ahmed Lemjiyed.
16 Referred to by the Government as Mohamed Khouna Bobit.
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78.
Mr. Lefkir17 was reportedly arrested on 11 November 2010, near a bank in Laayoune,
and held in police custody until 12 November 2010, on the instructions of the competent
public prosecutor’s office.
79.
Mr. Haddi18 was the subject of a wanted notice issued on 14 November 2010. He was
arrested on 20 November 2010 and was held in police custody until 22 November 2010.
80.
Mr. Azaoui 19 and Mr. Toubali were the subject of wanted notices issued on
13 November 2010. Mr. Azaoui was held in police custody from 3 to 5 December 2010, on
the instructions of the competent public prosecutor’s office. Mr. Toubali was arrested on
2 December 2010 and held in police custody until 5 December 2010, following the extension
of the custody period for 24 hours with the written authorization of the competent public
prosecutor’s office.
81.
Mr. Khadda, Mr. Tahlil20 and Mr. Eddah21 were arrested on 5 December 2010 on the
basis of wanted notices and held in custody until 7 December 2010, on the instructions of the
competent public prosecutor’s office. Mr. Eddah reportedly confessed to preparing and
throwing Molotov cocktails at the authorities and using vehicles to strike and kill members
of their ranks.
82.
The Government claims that, at the end of their police custody, each of the 18
individuals was brought before the competent public prosecutor, who referred them to the
military investigating judge on the same day. Their families were informed.
83.
The 18 individuals were arrested on the basis of serious and corroborating evidence
of their involvement in the organization of a criminal gang for seditious purposes and in
violence and homicide committed against law enforcement officers, obscene acts committed
against the victims’ corpses, acts of vandalism, arson of State and private property and
kidnapping, accusations that were corroborated, inter alia, by their spontaneous confessions
and by material evidence, and in connection with which they were formally charged by the
courts.
84.
The placement of the 18 individuals in police custody was in conformity with national
procedure, legal safeguards and human dignity. The Government points out that a person
may be held in police custody for a period not exceeding 48 hours with the authorization of
the public prosecutor and that the custody period may be extended for a further 24 hours. The
Government asserts that the procedures and the 96-hour time limit are in line with article 9
of the Covenant. It maintains that none of the 18 individuals was held incommunicado.
85.
According to the Government, the Rabat court of appeal ordered medical
examinations of the 18 individuals in connection with the allegations of torture made.
Mr. Asfari, Mr. Sbai, Mr. Abbahah, Mr. Lemjaid and Mr. Khadda are said to have refused.
The examinations reportedly complied with the Istanbul Protocol, and it was determined that
the evidence and data collected in no way indicated the use of the various methods of torture
alleged. The examinations were carried out by highly qualified, impartial and independent
forensic experts, under the supervision of the court. The report on the medical examinations
was translated into Arabic and explained in court.
86.
With regard to category II, the Government asserts that the responsibility of the
18 individuals for the above-mentioned crimes was established on the basis of their own
uncoerced confessions, video footage, the testimony of criminal police officers present at the
scene, statements by camp residents, testimony by police officers called by the defence,
post-mortem reports and medical examinations attesting to signs of violence on the victims’
bodies. The Government reaffirms the independence of the Moroccan judiciary and notes
that police reports concerning crimes serve merely as information subject to the judge’s
sovereign discretion.
17 Referred to by the Government as Mohamed Mbarek Lafkir.
18 Referred to by the Government as Mohammed Lamine Haddi.
19 Referred to by the Government as El Hassan Azaoui.
20 Referred to by the Government as Mohamed El-Tahlil.
21 Referred to by the Government as Hassan Addah.
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11
87.
With regard to category III, the Government recalls that national legislation enshrines
the right to a fair trial, and asserts that at trial the 18 individuals enjoyed all fair trial
guarantees, as confirmed in the public reports of the National Human Rights Council.
88.
The trial was held in public, and the court guaranteed access to the courtrooms without
the least restriction on the part of the authorities and ensured the interpretation of the
proceedings, including into Hassaniya, in accordance with articles 300, 304, 318, 423 and
435 of the Code of Criminal Procedure. The court also verified the identity of each defendant
and reminded them of the charges against them.
89.
The defendants were assisted by national and foreign lawyers, with whom they were
able to communicate freely. During the hearings, they had the right to defend themselves on
a basis of equality. The court granted all the applications submitted, notably concerning the
calling of defence witnesses and the conduct of medical examinations. In accordance with
article 287 of the Code of Criminal Procedure, the court ensured that the evidence was
debated in an adversarial hearing and that the defendants were able to challenge the
witnesses. It appointed four lawyers after defence counsel withdrew on 16 May 2017. When
the defendants refused to appear in court, the court ensured that a bailiff kept them informed
of the proceedings on a daily basis. In addition, the court refused to allow the defendants to
be presented in handcuffs and ensured that they were in good health and were properly treated
during the hearings. The defendants were held in a glass box in order to protect them from
any reprisals by the victims’ families.
90.
The Government adds that the compact disc mentioned by the source forms part of
the case file and documents the extent of the brutality of the acts committed by certain
defendants. It claims that the conditions of detention of the 18 individuals are normal and in
accordance with the regulations in force and international standards. They are held in
individual cells, enjoy group exercise and take part in various activities with other inmates.
91.
According to the Government, the 18 individuals were placed in different prisons
depending on their sentences, behaviour and family location, any studies they were pursuing
and their medical needs. They were never subjected to inhuman treatment or physical or
psychological torture and were able to communicate with their families. They have benefited
from appropriate medical monitoring and receive all necessary medical care. They enjoy
regular visits from their loved ones and, for those whose families are unable to travel
regularly, special dispensation to receive extended visits not subject to a pre-established
schedule. Their conditions of detention are monitored regularly by various mechanisms, and
they are able to meet with their lawyers. They receive parcels and money from their families.
The individuals who went on hunger strike were placed in specialized areas where their state
of health could be more readily monitored. Prisoners who so wished were able to continue
their studies, and some have obtained university diplomas.
92.
With regard to Mr. Tahlil, the Government asserts that he requested to be transferred
to Bouizakarne prison on 3 February 2021; there he enjoys all the rights guaranteed by law,
including the right to communicate with his family.
93.
The Government denies the allegations of death threats against Mr. Haddi and his
disappearance between 15 June and 24 September 2021. The Committee on Enforced
Disappearances has reportedly found these allegations to be unfounded. It is claimed that
Mr. Haddi deliberately stopped using the telephone, in order to attract public attention.
However, he is allowed three calls per week lasting 10 to 15 minutes each. He was transferred
to Kenitra prison from 12 to 15 July 2021 to sit his university examinations and
communicated with his mother by telephone on 13 and 14 July 2021. He sent a handwritten
letter to the Tiflet public prosecutor’s office informing it of a hunger strike on 9 and 10 June
2021. Mr. Haddi continued to eat in January 2021 and to shop at the canteen.
94.
The Government categorically rejects allegations of any discrimination or link
between the Saharan origin of the 18 individuals and their arrest, which it considers to have
been based on the commission of crimes. The Constitution and the law prohibit all forms of
discrimination. Article 5 of the Constitution protects Hassaniya as an integral part of the
unique cultural identity of Morocco. Citizens of Western Saharan enjoy the full range of
rights, in accordance with the principle of non-discrimination.
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2.
Discussion
95.
The Working Group thanks the source and the Government for their submissions.
96.
In determining whether the detention of the 18 individuals 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 the
Government if it wishes to refute the allegations.22 Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.
(a)
Preliminary remarks
97.
The source invites 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 liberty of the 18 individuals without having recourse
to international humanitarian law.23 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.24
(b)
Category I
98.
According to the source, none of the 18 individuals was shown an arrest warrant at
the time of their arrest.
99.
As the Working Group has previously stated, in order for a deprivation of liberty to
have a legal basis, it is not sufficient for there to be a law authorizing the arrest. The
authorities must invoke that legal basis and apply it to the circumstances of the case. This is
typically done through an arrest warrant, an arrest order or equivalent document. 25 The
Working Group points out that it is not usually feasible to obtain an arrest warrant in cases
of arrest in flagrante delicto. In its jurisprudence, the Working Group has concluded that
arrest in flagrante delicto occurs when a person is arrested during or immediately after the
commission of a crime, or during a pursuit shortly after the crime has been committed.26
100.
The Working Group notes that the Government does not deny that the individuals
were not shown arrest warrants at the time of their arrest, but asserts that Mr. Asfari,
Mr. Bouryal and Mr. Bani were arrested in flagrante delicto.
101.
With regard to Mr. Asfari, the source states that he was arrested on 7 November 2010,
the day before the Gdeim Izik camp was dismantled. The Government maintains that he was
arrested on 8 November 2010, during the dismantling. Noting the discrepancies between the
source’s account and those of the witnesses, who stated that Mr. Asfari had ordered them to
attack law enforcement officers on 8 November 2010, the Working Group considers that the
source has not provided sufficient information to demonstrate that Mr. Asfari was arrested
on 7 November 2010. The Working Group therefore finds that Mr. Asfari’s arrest was carried
out in sufficient proximity to the violence that occurred during and after the dismantling of
the camp as to constitute a case of arrest in flagrante delicto.
102.
Concerning Mr. Bani and Mr. Bouryal, the parties both claim that they were arrested
on 8 November 2010, in the camp in Mr. Bouryal’s case and as he was leaving the camp in
Mr. Bani’s case. Noting the proximity in time between the violence in the camp and that
outside the camp in Laayoune, and the fact that the two individuals were charged in
connection with these events, the Working Group considers that they were arrested in
circumstances of flagrante delicto not allowing an arrest warrant to be obtained.
103.
Concerning the arrest of the other individuals, including the rearrest of Mr. Ismaili on
13 May 2011, the Working Group notes discrepancies between the dates of arrest given by
22 A/HRC/19/57, para. 68.
23 Opinions No. 52/2020, para. 75; and No. 68/2020, para. 59. See also A/HRC/27/48/Add.5, para. 62.
24 Opinions No. 60/2018, paras. 62–64; and No. 68/2020, para. 61.
25 Human Rights Committee, general comment No. 35 (2014), para. 23.
26 Opinion No. 61/2011, paras. 48 and 49; No. 67/2011, para. 30; and No. 53/2014, para. 42.
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13
the source and by the Government. Nevertheless, it notes that the Government has not refuted
the source’s allegations that they were arrested without being shown an arrest warrant. The
Working Group considers that the Government has not demonstrated that it was impossible
for the authorities to produce an arrest warrant or a summons to appear.
104.
Accordingly, the Working Group finds that, by failing to present warrants to
Mr. Laaroussi, Mr. Boutangiza, Mr. Abbahah, Mr. Lakhfaouni, Mr. Sbai, Mr. Lemjaid,
Mr. Ismaili, Mr. Babait, Mr. Lefkir, Mr. Haddi, Mr. Azaoui, Mr. Toubali, Mr. Khadda,
Mr. Tahlil and Mr. Eddah at the time of their arrest, the authorities violated article 9 (1) and
(2) of the Covenant.
105.
Furthermore, the source claims that none of the 18 individuals was represented by a
lawyer at their initial hearing or advised of their rights. The source provides a detailed account
in support of the allegations and maintains that several of the detainees were unable to speak
during their hearing. Although the Government contends that the appropriate procedures
were respected, it fails to provide a detailed and substantiated rebuttal of the source’s largely
consistent arguments concerning the initial hearing of the 18 individuals.
106.
The Working Group considers that the failure to allow the 18 individuals to be
represented at their initial hearing, to inform them of their rights and, in some cases, to allow
them to speak effectively undermined their ability to challenge their detention, in violation
of article 9 (3) of the Covenant.
107.
The source states that national law requires an individual to be brought before a judge
within 24 hours of arrest. The Government maintains that a person may be held in police
custody for a period of 48 hours, which may be extended for a further 24 hours, with the
authorization of the public prosecutor, before being brought before a judge.
108.
The Human Rights Committee has observed that 48 hours is ordinarily sufficient to
satisfy the obligation to bring a person who has been arrested promptly before a judge or
judicial authority, and any longer delay must remain absolutely exceptional and be justified
under the circumstances.27 Given that the 18 individuals appeared before the investigating
judge at the end of their 72 hours in police custody, and in the light of the exceptional
circumstances involving large-scale violence and the transportation of the detainees to
another location to be heard by a judge, the Working Group does not consider that the source
has demonstrated the violation of the rights of the 18 individuals in this regard.
109.
The Working Group thus finds that the authorities violated articles 3 and 9 of the
Universal Declaration of Human Rights and article 9 of the Covenant in respect of each of
the 18 individuals. Their detention is therefore arbitrary under category I.
(c)
Category II
110.
The source claims that the 18 individuals were arrested and detained for exercising
their right to freedom of thought, expression and opinion, and of peaceful assembly and
association, guaranteed in articles 18, 19, 21 and 22 of the Covenant. The source maintains
that, while some of the 18 individuals were actively involved in the camp, others are human
rights defenders and still others only visited their relatives in the camp. The Government
claims that the 18 individuals were arrested as a direct result of the violent confrontations of
8 November 2010.
111.
The source does not deny that at least 10 law enforcement officers were killed and
around 160 injured during the events surrounding the dismantling of the camp on 8 November
2010. The Working Group takes note of the large-scale violence and murderous context in
which the arrests took place and considers that such circumstances fall within the scope of
the exceptions provided for in relation to public safety and public order in articles 19 (3), 21
and 22 of the Covenant. Furthermore, the source asserts that the 18 individuals were
questioned solely about their activism and their relations with the Frente POLISARIO, and
not about any criminal activities. However, the Working Group considers it unlikely that the
police would have lost interest in the events that took place at the camp, given that 10 police
27 Human Rights Committee, general comment No. 35 (2014), para. 32.
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officers were killed during these events and that the criminal charges were based on these
events.
112.
Nevertheless, the Working Group notes that this should not be interpreted as
expressing any view as to the responsibility of the individuals for the crimes of which they
were accused. The Working Group considers only that, in the light of the context and the
information provided by the Government, the information provided by the source does not
allow it to conclude that the detention of the 18 individuals is arbitrary under category II.
(d)
Category III
113.
As a preliminary matter, the Working Group notes that the source’s allegations
discussed below relate to the trial of the 18 individuals before the court of appeal, in 2016
and 2017, following the overturning of the original judgment.
(i)
Torture and evidence obtained through torture
114.
The source claims that the trial of the 18 individuals was characterized by the use of
evidence obtained through torture. The source highlights other cases in Morocco involving
the systematic use of torture during initial interrogations and the use as evidence of
confessions signed without the presence of a lawyer. According to the Government, no acts
of torture occurred, the proceedings were fair and the court acceded to all requests made by
the defence.
115.
With regard to Mr. Asfari and the period after 12 November 2010, the source’s
allegations are consistent with the account given to the Committee against Torture referring
to acts of torture perpetrated after 12 November 2010. The Government disputes this account
and claims that Mr. Asfari refused to undergo the medical examination ordered by the court
of appeal. Nevertheless, the Working Group notes that this examination was ordered several
years after Mr. Asfari’s arrest and that the Government’s response does not take into account
the fact that the injuries he sustained might not have been visible by that point. In addition,
the source claims that Mr. Asfari was prevented from challenging the use of evidence
obtained through torture. Although the Government mentions the medical examinations
ordered by the court of appeal, it does not rebut this allegation directly.
116.
Concerning the other individuals, the source claims that they were tortured following
their arrest and that the defence was prevented from challenging the use of evidence obtained
through torture at their trial (including the police reports containing their confessions). In its
response, the Government has provided no detailed, substantiated information refuting the
source’s allegations. Moreover, the Government’s argument that the police reports served
merely as information subject to the judge’s sovereign discretion is not sufficient to rebut the
source’s claims.
117.
The prohibition against torture is a peremptory norm of international law, enshrined
in 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. Obtaining incriminating statements through the use of torture
raises serious concerns with respect to the fairness of trials and is contrary to article 15 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. Confessions made in the absence of legal counsel are not admissible as evidence
in criminal proceedings.28 Furthermore, the admission into evidence of a statement obtained
through torture renders the entire proceedings unfair, regardless of whether other evidence
was available to support the verdict.29
118.
Consequently, the Working Group considers that, by using confessions obtained
through torture and prohibiting the defence from challenging their use, the authorities
violated the right of the 18 individuals to a fair trial under article 14 of the Covenant and
article 10 of the Universal Declaration of Human Rights. The Working Group’s conclusions
28 A/HRC/45/16, para. 53. See also opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019,
para. 70; and No. 73/2019, para. 91.
29 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019,
para. 43; No. 59/2019, para. 70; and No. 73/2019, para. 91.
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are reinforced by its earlier findings that none of the 18 individuals was represented by a
lawyer at the initial hearing, during which some were allegedly tortured in front of the judge.
119.
The Working Group refers the present case to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment.
(ii)
The right to a hearing by an independent and impartial tribunal
120.
According to the source, none of the 18 individuals enjoyed their right to a hearing by
an independent and impartial tribunal. The source deplores the domineering attitude of the
prosecution and the involvement of the parties claiming damages, and notes previous cases
in Morocco in which the Working Group concluded that torture had been used during initial
hearings and confessions signed in the absence of a lawyer used as evidence. The
Government denies these allegations, contending that the proceedings were fair and that the
arguments made and applications filed by the defence were largely taken into account.
121.
Article 14 (1) of the Covenant guarantees the right to a fair and public hearing by a
competent, independent and impartial tribunal established by law.
122.
The Working Group finds that the source has not sufficiently established that the
domineering attitude of the prosecutor and the involvement of the parties claiming damages
rendered the trial unfair. It notes the detailed examples provided by the Government of the
measures taken by the court in response to the applications filed by the defence, as well as its
argument that the 18 individuals were represented by national and international lawyers, as
reflected in the judgment.
123.
On the other hand, the Working Group finds that the source’s claims that the defence
was unable to question the police officers about the torture allegedly inflicted have been
established and are consistent with its conclusions above concerning the use of confessions
obtained under torture. It also finds that the Government has not provided sufficiently
detailed and substantiated information refuting these allegations, despite being in possession
of information concerning the course of the proceedings. The Working Group concludes that
there has been a violation of the principle of equality of arms and of the right to a hearing by
an independent and impartial tribunal, guaranteed by article 14 (1) and (3) of the Covenant.
In addition, the Working Group notes that it has already found violations of this right in cases
concerning Morocco in which evidence obtained through torture was also used during the
proceedings.30
(iii)
Access to a lawyer
124.
According to article 14 (3) (b) and (d) of the Covenant, all 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 access to counsel
must be provided without delay.31 Deprivation of the right to counsel violates the principle
of equality of arms and the right to a hearing by an independent and impartial tribunal,
guaranteed by article 14 (1) and (3) (e) of the Covenant.32
125.
The Working Group has already concluded that the source has established that the 18
individuals did not have access to a lawyer during their initial interrogations. It considers that
the impossibility for the 18 individuals of having access to a lawyer immediately after their
arrest hampered their ability to prepare their defence, in violation of article 14 of the
Covenant.
(iv)
Other claims
126.
The Working Group notes that the Government denies the source’s allegations that,
12 years after their arrest, the 18 individuals have still not been notified of the charges against
30 See opinions No. 68/2020 and No. 46/2021.
31 A/HRC/30/37, annex, principle 9 and guideline 8; Human Rights Committee, general comment
No. 35 (2014), para. 35; A/HRC/48/55, para. 56; and A/HRC/45/16, paras. 50–55. See also
A/HRC/27/47, para. 13.
32 Opinions No. 18/2018, para. 53; No. 78/2018, paras. 78 and 79; and No. 43/2020, para. 84.
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them, and asserts that they were informed of the charges from the outset of the proceedings.
Noting that the judgment details the charges against each of the 18 individuals, the Working
Group does not consider the source’s allegations to be sufficiently established.
127.
In addition, several of the source’s allegations concerning the principle of equality of
arms relate to specific items of evidence or questions. The Working Group notes that the
Government has given a diametrically opposite account. It recalls that it has already
addressed the issue of the restrictions imposed on the defence, which was unable to challenge
the use of confessions obtained through torture, as well as the issue of the court’s
independence and impartiality. The Working Group considers that, on the basis of the
information available to it, it is not in a position to assess the remainder of the allegations
concerning specific items of evidence and questions asked at the trial. The Working Group
reiterates that its role is not to act as a supranational tribunal examining the entirety of the
proceedings at first instance and on appeal.
128.
In the light of the above conclusions, the Working Group finds that the violations of
the 18 individuals’ right to a fair trial are of such gravity as to render their detention arbitrary
under category III.
(e)
Category V
129.
The source claims that the Gdeim Izik prisoners were targeted because of their
Saharan origin and their political views concerning the Saharan people’s right to
self-determination, which is contrary to international law, in particular articles 1, 2, 26 and
27 of the Covenant. The Government denies these allegations and asserts that all citizens
have the same rights.
130.
The Working Group recalls that the arrest of the 18 individuals followed the violent
events of 8 November 2010. The source’s allegation of general discrimination against
Saharans does not exclude the fact that the 18 individuals were charged and convicted in
connection with the events of 8 November 2010. The Working Group does not have sufficient
information to conclude that the 18 individuals were arrested on discriminatory grounds.
131.
Accordingly, the Working Group is not in a position to make a finding on the claims
under category V.
(f)
Concluding remarks
132.
The Working Group recalls that, under article 10 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. International standards must be upheld, in particular rules 12–27 and 58
of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules), relating to living conditions, health care and contact with the outside world.
The Working Group refers the present case to the Special Rapporteur on the right of everyone
to the enjoyment of the highest attainable standard of physical and mental health.
133.
The Working Group is gravely concerned about the number of alleged cases of
arbitrary detention in Western Sahara.33 In particular, it echoes the concerns expressed by the
Committee against Torture,34 as well as by multiple special procedure mandate holders,
regarding the Gdeim Izik detainees.35
3.
Disposition
134.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Sidi Abdallah Abbahah, Mohamed El Bachir
Boutangiza, Mohamed Bani, Abdel Jalil Laaroussi, Abdulahi Lakhfaouni, Ahmed
Sbai, Sid’Ahmed Lemjaid, Brahim Ismaili, Mohammed Khouna Babait, Mohamed
33 Opinions No. 11/2017, No. 31/2018, No. 58/2018, No. 60/2018, No. 23/2019, No. 67/2019,
No. 68/2020 and No. 46/2021.
34 See Asfari v. Morocco.
35 See communication MAR 3/2017, available at:
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23226.
A/HRC/WGAD/2023/23
GE.23-18626
17
Embareh Lefkir, Ennaâma Asfari, Mohamed Bouryal, Mohamed Lamin Haddi, El
Hasane Azaoui, Abdellah Toubali, El Bachir Khadda, El Hassan Eddah and Mohamed
Tahlil, being in contravention of articles 3, 9 and 10 of the Universal Declaration of
Human Rights and articles 9 and 14 of the Covenant, is arbitrary and falls within
categories I and III.
135.
The Working Group requests the Government of Morocco to take the steps necessary
to remedy the situation of the 18 individuals 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 Covenant.
136.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release all 18 individuals immediately and accord
them an enforceable right to compensation and other reparations, in accordance with
international law.
137.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the 18
individuals and to take appropriate measures against those responsible for the violation of
their rights.
138.
In accordance with paragraph 33 (a) of its methods of work, 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 of everyone to the enjoyment
of the highest attainable standard of physical and mental health, for appropriate action.
139.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
140.
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 the 18 individuals have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the 18
individuals;
(c)
Whether an investigation has been conducted into the violation of the 18
individuals’ 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.
141.
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.
142.
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.
A/HRC/WGAD/2023/23
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GE.23-18626
143.
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.36
[Adopted on 31 March 2023]
36 Human Rights Council resolution 51/8, paras. 6 and 9.