Opinion; Subjects: MOROCCO, SPAIN, 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.25-02457 (E) 40325 140325
Human Rights Council
Working Group on Arbitrary Detention
Opinion adopted by the Working Group on Arbitrary
Detention at its 101st session (11–15 November 2024)
Opinion No. 63/2024, concerning Al-Hussein al-Bashir Ibrahim
(Morocco and Spain)*
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, on 8 July 2022, the Working Group
transmitted to the Governments of Morocco and Spain a communication concerning
Al-Hussein al-Bashir Ibrahim.1 The Government of Spain replied to the communication on
26 September 2024 while the Government of Morocco replied on 25 October 2024. Both
States are parties 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,
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/63
General Assembly
Distr.: General
26 February 2025
English
Original: French
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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.
Al-Hussein al-Bashir Ibrahim, also known as Lahoucine Amaadour, born 3 January
1991, is a political activist who defends the Saharan people’s right to self-determination. He
usually resides in Laâyoune, Western Sahara.
(i)
Context
5.
During his studies at the University of Agadir, Mr. Al-Bashir Ibrahim reportedly
established the Saharan student movement with the aim of uniting Saharan student
movements from different towns. According to the source, he fought for the rights of students
and the self-determination of the people of Western Sahara.
6.
The source reports that, in 2018, the situation in Agadir for Saharan activists
deteriorated after clashes between students at the University of Agadir, which reportedly
resulted in the death of a Saharan student who had been violently attacked by Moroccan
students. This event is said to have frightened Saharan students, and Mr. Al-Bashir Ibrahim,
fearing arrest or death for his activism, fled to Spain.
7.
The source points out that the case of Mr. Al-Bashir Ibrahim has been the subject of
several joint communications from special procedures mandate holders, in which serious
concerns about his detention have been raised.2 The case is also reportedly closely related to
that concerning the “the group of students” which was the subject of Working Group opinion
No. 67/2019.
(ii)
Arrest and detention
8.
On 11 January 2019, Mr. Al-Bashir Ibrahim reportedly travelled by boat from
Laâyoune to Lanzarote, Spain, to seek political asylum. He arrived at around 6 a.m. and was
arrested by Spanish police three hours later.
9.
On 14 January 2019, Mr. Al-Bashir Ibrahim was reportedly brought before the
Arrecife investigating court with his lawyer and a translator, both provided by the Spanish
police. During his court appearance, he is said to have requested political asylum, explaining
that he was being persecuted by the Moroccan authorities in reprisal for his activism for
human rights and self-determination for the people of Western Sahara. He also reportedly
said he feared he would be arrested or killed if he returned to Morocco, as other members of
the group of students had been. Despite the judge’s order that he should be transferred to the
Hoya Fría refugee detention centre, Mr. Al-Bashir Ibrahim was reportedly transferred to Las
Palmas, Gran Canaria, on 15 January 2019.
10.
Following the announcement of his deportation, Mr. Al-Bashir Ibrahim reportedly
went on a thirst strike for two days, during which time he was placed in solitary confinement
without being given any attention whatsoever by the guards or any medical care. He was also
forced to sign documents in Spanish, without knowing their content and in the absence of a
lawyer or translator. On 17 January 2019, Mr. Al-Bashir Ibrahim was reportedly handed over
to the Moroccan authorities at the border at Nador, in Morocco. The source notes that no
arrest warrant or decision by a public authority was presented to him by either the Spanish or
the Moroccan authorities.
11.
Once in Nador, Mr. Al-Bashir Ibrahim was reportedly detained by the
Directorate-General for National Surveillance without being informed of the reasons for his
detention, and was questioned about his political activities and student activism.
2 See communications MAR 2/2020, MAR 5/2020 and MAR 2/2023, available at
https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
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12.
Mr. Al-Bashir Ibrahim was reportedly transferred to the Casablanca police station on
the night of 17 January 2019 and questioned the following day about his relations with
Saharan leaders. On 19 January 2019, he was reportedly transferred to the Marrakech police
station, where he was detained for forty-eight hours and questioned about his activism.
Although he was reportedly slapped and beaten by one of the officers during his
interrogation, Mr. Al-Bashir Ibrahim refused to sign the police reports, believing that they
did not reflect his statements.
13.
According to the source, it was only on 21 January 2019, four hours before being
brought before the examining magistrate of the Court of Appeal, that Mr. Al-Bashir Ibrahim
was informed of the reasons for his arrest. The first time he had access to a lawyer was when
he appeared before the judge, who ordered his detention. The source indicates that, for five
days following his arrest by the Moroccan authorities, Mr. Al-Bashir Ibrahim was deprived
of all contact with the outside world, including his family and lawyer. He was reportedly only
able to speak with his family on 21 January 2019, once he had been transferred to Oudaya
prison.
14.
The source explains that Mr. Al-Bashir Ibrahim was accused, on the basis of
articles 303, 393, 401, 403 and 405 of the Criminal Code, of organizing the group of students
and inciting them to use violence, which led to the death of a student in 2016, for which the
group of students was convicted.
15.
On 13 February 2019, members of the group of students were reportedly summoned
by the examining magistrate of the Marrakech court to testify in the case concerning
Mr. Al-Bashir Ibrahim. Before the examining magistrate, the students reportedly denied the
charges brought against Mr. Al-Bashir Ibrahim as well as the content of the police reports
used against him, which, according to the source, contained fabricated statements that had
been signed under torture by the group of students.
16.
After 77 days in pretrial detention, Mr. Al-Bashir Ibrahim reportedly began a hunger
strike from 9 to 30 April 2019, demanding to be tried and in protest at the detention
conditions, including the fact that he was held with 20 other persons in a cell with a maximum
capacity of 12. During his hunger strike, he was reportedly unable to contact his lawyer. On
19 April 2019, in retaliation for his hunger strike, he was reportedly placed in solitary
confinement in a wing of the prison reserved for convicted persons classified as dangerous.
17.
Mr. Al-Bashir Ibrahim reportedly appeared before a court for the first time on 19 April
2019, the date of the first hearing in the trial. However, the hearing was reportedly postponed
to 11 June 2019, as the court had not called the lawyer for the defence. The hearings were
subsequently postponed several times. On 11 June, the judge reportedly postponed the
hearing to 25 June, as the autopsy report on the deceased student was not in the case file. On
25 June, the hearing was postponed to 16 July, as the prosecutor had not submitted the
autopsy report to the court. On 16 July, a further postponement was ordered to 23 July, as the
court had not called the witnesses and the civil party. Once again, the 23 July hearing was
reportedly postponed to 17 September, as the witnesses had still not been called. Further
postponements were reportedly ordered for the same reasons to 22 October and then
26 November 2019. The source notes that the last postponement was requested by the
defence because the court had not called the defence witnesses.
18.
At the request of the civil party, who felt that the trial had dragged on too long and
could no longer wait for witnesses to appear, the trial reportedly began on 26 November 2019
in the presence of Mr. Al-Bashir Ibrahim’s lawyer. During his testimony, Mr. Al-Bashir
Ibrahim reportedly denied all the charges against him, claiming to have been arrested because
of his political opinions and student activism.
19.
Mr. Al-Bashir Ibrahim was reportedly sentenced to 12 years’ imprisonment for
organizing violence and inciting violence leading to death, without intent to cause it, on the
basis of articles 403 and 405 of the Criminal Code. According to the source, the incriminating
file consisted solely of the police reports that Mr. Al-Bashir Ibrahim had refused to sign
during his interrogation in Marrakech and those signed by the group of students under
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torture.3 No witnesses were presented, despite the postponements ordered by court so that
they could be called.
20.
The source notes that the appeal trial should have begun on 25 March 2020, but was
postponed several times for reasons it considers arbitrary. It notes that Mr. Al-Bashir
Ibrahim’s lawyer was not informed of the commencement of proceedings. On 16 June 2020,
Mr. Al-Bashir Ibrahim was reportedly informed that the hearing initially scheduled for 8 July
2020 had been brought forward to 17 June 2020. As he had not been called by the court, his
lawyer was reportedly not informed until Mr. Al-Bashir Ibrahim’s family contacted him. On
17 June 2020, Mr. Al-Bashir Ibrahim was reportedly taken to a room in the prison to appear
in court via videoconference. After waiting for hours, once his turn arrived, he objected to
being heard by videoconference. The judge then reportedly postponed the hearing to 8 July,
and then again to 22 July 2020. On 14 July 2020, a prison guard reportedly informed
Mr. Al-Bashir Ibrahim that the hearing would be held the following day. Once again, his
lawyer was not informed of the change by the court, and learned of it through his client. On
15 July 2020, Mr. Al-Bashir Ibrahim reportedly waited in the videoconference room all day,
but the case against him was never opened. On 22 July 2020, Mr. Al-Bashir Ibrahim
reportedly requested a postponement of the hearing as only his lawyer’s deputy was present.
The hearing was reportedly postponed to 23 September 2020. According to the source,
between 22 and 30 July 2020, Mr. Al-Bashir Ibrahim was deprived of all contact with the
outside world.
21.
On 23 September 2020, Mr. Al-Bashir Ibrahim reportedly again confirmed to the
judge his wish not to appear by videoconference. Only his lawyer’s assistant was present at
the hearing. Due to the state of emergency that had been declared until 10 October, the
hearing was reportedly postponed to 21 October 2020.
22.
On 21 October 2020, after a short hearing, the Court of Appeal reportedly upheld
Mr. Al-Bashir Ibrahim’s sentence of 12 years’ imprisonment, on the basis of police reports
that he had not signed and those signed by the group of students. No observers were allowed
to attend the hearing.
(iii)
Conditions of detention
23.
The source reports that, on 27 December 2019, Mr. Al-Bashir Ibrahim was
temporarily transferred to Aït Melloul prison, for his university examinations. He was
allegedly beaten by guards on arrival, then placed together with 18 other prisoners in a cell
that could only accommodate 8. In response to this treatment, Mr. Al-Bashir Ibrahim
reportedly lodged a complaint with the Crown Prosecutor’s Office, for which he was placed
in solitary confinement for 45 days.
24.
On 14 February 2020, Mr. Al-Bashir Ibrahim was reportedly transferred back to
Oudaya prison. On 21 February 2020, a family member reportedly filed a complaint with the
Prison Commission.
25.
On 26 January 2021, Mr. Al-Bashir Ibrahim was again transferred to Aït Melloul
prison. Due to overcrowding in the cell, he was allegedly forced to sleep on the floor, without
sufficient blankets or access to basic necessities, and was not able to continue his studies. In
the months that followed, his access to the telephone was increasingly restricted and, in
February and March 2021, he was not allowed to telephone for periods of up to two weeks.
His calls were then restricted to one minute per week and to three pre-approved persons only.
26.
On 7 March 2022, Mr. Al-Bashir Ibrahim was reportedly transferred to Bouizakarne
prison from Smara prison, where he had been held for examinations since 12 February 2022.
On 8 March 2022, he reportedly went on hunger strike for 48 hours. According to the source,
from 7 to 10 March 2022, Mr. Al-Bashir Ibrahim was held in a cell with prisoners classified
as dangerous and was handcuffed at all times.
27.
On 10 March 2022 at 8 a.m., guards allegedly entered Mr. Al-Bashir Ibrahim’s cell,
threatened him and physically abused him. He was then transferred to Aït Melloul prison
3 See opinion No. 67/2019.
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without prior notice. On his arrival, the prison director allegedly insulted him and threatened
him with ill-treatment.
28.
In February 2023, Mr. Al-Bashir Ibrahim reportedly again went on hunger strike to
protest against the inhumane treatment he was receiving at Aït Melloul prison and to obtain
his transfer to a prison closer to his family. The source reports that, on 23 March 2023,
Mr. Al-Bashir Ibrahim was transferred to Asfi prison, which was even further away from his
family. In addition, he was allegedly being held in a cell measuring 2 by 1 meters, alone and
isolated from other Saharan activists and political prisoners. In September 2023, he was
reportedly forbidden to make telephone calls and isolated from the outside world for more
than two weeks.
29.
The source notes that complaints alleging ill-treatment of Mr. Al-Bashir Ibrahim have
been addressed to the Crown Prosecutor of the Marrakech Court of Appeal, the Director of
the General Commission of Prison Administration in Rabat, the Minister of Human Rights,
the Minister of Justice and the President of the National Council for Human Rights in Rabat.
Apart from this last complaint, none of them have received a response.
(iv)
Legal analysis
30.
The source argues that the detention of Mr. Al-Bashir Ibrahim is arbitrary under
categories I, II, III and V of the Working Group’s methods of work and under international
humanitarian law, in particular the Geneva Convention relative to the Protection of Civilian
Persons in Time of War (Fourth Geneva Convention), which it considers applicable in this
case.4
a.
Category I
31.
Recalling the guarantees set out in article 9 of the Covenant, the source reports that
Mr. Al-Bashir Ibrahim was arrested three hours after arriving in Spain and transferred to Las
Palmas on 15 January 2019, in breach of a court order. He was allegedly informed of his
transfer to Morocco without his asylum application having been processed and was forced to
sign documents in Spanish without understanding their content. Mr. Al-Bashir Ibrahim was
then placed in solitary confinement and deprived of all contact with the outside world for two
days, during which time he went on hunger strike and was removed from the protection of
the law. The source therefore concludes that his detention in Spain had no legal basis and
was contrary to article 9 (1) of the Covenant and article 9 of the Universal Declaration of
Human Rights.
32.
Regarding the arrest of Mr. Al-Bashir Ibrahim in Morocco, the source states that he
was taken into custody on 17 January 2019 but was only informed of the charges against him
on 21 January 2019, four hours before being brought before the examining magistrate and
after having already been subjected to three interrogations. During these interrogations, he
was allegedly questioned about his activism and tortured at the Marrakech police station,
where he was held for 48 hours. During that period, he was reportedly unable to contact his
family or his lawyer. The source points out that Mr. Al-Bashir Ibrahim had already been
detained by the Spanish authorities since 11 January 2019.
4 See International Court of Justice, Western Sahara, Advisory Opinion, 16 October 1975; General
Assembly resolution 73/107; International Court of Justice, Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004; Court of Justice of
the European Union, Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and
Customs and Secretary of State for Environment, Food and Rural Affairs, Case C-266/16, Opinion of
Advocate General Wathelet, 10 January 2018; and International Criminal Tribunal for the Former
Yugoslavia, Prosecutor v. Duško Tadić alias “Dule”, Case No. IT-94-1-T, Sentencing Judgment,
14 July 1997.
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33.
The source therefore argues that Mr. Al-Bashir Ibrahim was removed from the
protection of the law for five days after his arrest by the Moroccan authorities, and that his
arrest and detention had no legal basis, which is contrary to article 9 of the Covenant and
article 9 of the Universal Declaration of Human Rights.
b.
Category II
34.
The source recalls that, the Working Group, following its visit to Morocco in 2013,
concluded that torture and ill-treatment were used to extract confessions from Saharan
persons sympathetic to the Western Sahara issue. 5 In particular, the Working Group
highlighted the excessive use of force by the authorities against Saharan protestors, and stated
that it had received numerous complaints arising from these practices.6 The source also notes
that the Working Group has issued numerous opinions in which it notes the initiation of
proceedings against protestors in retaliation for their support for the right to
self-determination of the people of Western Sahara.7 It alleges that the false accusations
against Mr. Al-Bashir Ibrahim form part of this pattern and are in retaliation for his activism.
35.
According to the source, the charges brought against Mr. Al-Bashir Ibrahim are
similar to those brought against the group of students, which were the subject of an opinion
adopted by the Working Group. It argues that the police reports used against Mr. Al-Bashir
Ibrahim specify that he is the leader of the student movement, showing that he was arrested
because of his activism. The source adds that he was interrogated by Moroccan police officers
about his activism, and that the only evidence presented against him was police reports that
were unsigned or had been signed under torture.
36.
Consequently, the source considers that Mr. Al-Bashir Ibrahim is being held because
of his role in the Saharan student movement and his activism in support of the Saharan
people’s right to self-determination. It concludes that the Moroccan authorities violated
Mr. Al-Bashir Ibrahim’s rights under articles 19 and 21 of the Covenant, rendering his
detention arbitrary under category II. In addition, the source asserts that the Spanish
authorities are also responsible, since it was they who handed Mr. Al-Bashir Ibrahim over to
the Moroccan authorities.
c.
Category III
37.
The source argues that the detention of Mr. Al-Bashir Ibrahim is arbitrary under
category III as he has been denied the right to due process. These violations and the acts of
torture perpetrated against a protected person also allegedly constitute grave breaches of the
Fourth Geneva Convention and war crimes under article 8 (2) (a) (ii) and (vi) of the Rome
Statute of the International Criminal Court.
38.
The source maintains that Mr. Al-Bashir Ibrahim was denied his right to be heard by
an independent and impartial tribunal in accordance with article 14 (1) of the Covenant.8 It
underlines the concerns expressed by the Human Rights Committee about the lack of
independence and impartiality of the Moroccan judiciary, and recalls that the Working
Group’s jurisprudence has identified in Morocco a pattern of torture to extract confessions.9
The source recalls that, according to the jurisprudence of the Working Group, a judge’s
failure to intervene when an accused person shows signs of torture may demonstrate a lack
of judicial independence and constitute a violation of article 14 (1) of the Covenant.10
39.
In this case, the source reports that Mr. Al-Bashir Ibrahim was subjected to an
interrogation during which he was allegedly beaten by a police officer. During the
proceedings, Mr. Al-Bashir Ibrahim reportedly stated that the police reports concerning the
5 A/HRC/27/48/Add.5, para. 63.
6 Ibid., para. 64; CCPR/C/MAR/CO/6; and A/HRC/22/53/Add.2, paras. 61–67.
7 Opinions No. 4/1996, No. 39/1996, No. 11/2017, No. 31/2018, No. 58/2018, No. 60/2018,
No. 23/2019, No. 67/2019, No. 52/2020 and No. 68/2020. See also S/2018/277, paras. 72 and 73.
8 González del Río v. Peru (CCPR/C/46/D/263/1987), paras. 5.2 and 5.3.
9 CCPR/CO/82/MAR, para. 19; 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 and No. 68/2020. See also A/HRC/27/48/Add.5, para. 64.
10 Opinions No. 29/2017, para. 65; and No. 68/2020.
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group of students had been signed under torture, and that those concerning him were not
consistent with his statements. Those reports were nevertheless used as evidence against him.
The source also points out that the court handed down its verdict without hearing vital
witnesses. Only the confessions of the group of students were used, without the students
themselves being called to testify other than in the preliminary investigations. The students’
statements to the examining magistrate denying the allegations against Mr. Al-Bashir
Ibrahim were reportedly disregarded. According to the source, this demonstrates that the
Moroccan justice system is being used to silence opponents of the Government, in disregard
of the right to an independent and impartial tribunal and in violation of article 14 (1) of the
Covenant.11 It adds that the authorities have also violated articles 48, 67 and 76 of the Fourth
Geneva Convention.
40.
Furthermore, the source recalls that article 14 (3) (g) of the Covenant provides that no
one shall be compelled to testify against himself or herself or to confess guilt. 12 The
prohibition of torture contained in the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment is also part of customary law. The source points out
that, following its visit to Morocco, the Working Group reported the use of torture by the
authorities to extract confessions during preliminary interrogations.13 In the present case, the
conviction of Mr. Al-Bashir Ibrahim on the basis of police reports that he refused to sign and
police reports signed under torture represents a violation of articles 7 and 14 (3) (g) of the
Covenant.
41.
Furthermore, the source claims that the authorities violated Mr. Al-Bashir Ibrahim’s
rights to have adequate time and facilities for the preparation of his defence, to communicate
with a lawyer and to examine or have examined the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf, provided for under article 14 (3) of
the Covenant and principle 9 of the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring
Proceedings Before a Court. It also notes that article 14 (1) of the Covenant and principle 12
of the Basic Principles and Guidelines guarantee the principle of equality before the courts.
42.
In this case, Mr. Al-Bashir Ibrahim was allegedly deprived of his right to
communicate with his lawyer during his pretrial detention. The court also reportedly failed
to call his lawyer to the hearing on 19 April 2019, as well as to the appeal proceedings. The
source notes that the Working Group has observed the same pattern in other cases involving
persons detained in Morocco.14
43.
During the proceedings, Mr. Al-Bashir Ibrahim’s lawyer was reportedly unable to
present any evidence or call any witnesses on his behalf. Although the court postponed the
hearing several times in order to call witnesses, Mr. Al-Bashir Ibrahim was reportedly
sentenced without a single witness being heard.
44.
The source therefore claims that the authorities have violated Mr. Al-Bashir Ibrahim’s
right to a fair trial, rendering his detention arbitrary under category III. It adds that the Spanish
authorities were also responsible in that they sent Mr. Al-Bashir Ibrahim back to Morocco
despite clear evidence that he would not have access to a fair trial there.
d.
Category V
45.
The source states that, as a Saharan, Mr. Al-Bashir Ibrahim is a protected person under
article 4 of the Fourth Geneva Convention.15 It recalls the concerns expressed by various
United Nations entities regarding the persecution of Saharan persons campaigning for the
right to self-determination of the people of Western Sahara, as well as the opinions of the
11 See opinion No. 68/2020.
12 Human Rights Committee, general comment No. 32 (2007), para. 41. See also article 293 of the Code
of Criminal Procedure.
13 A/HRC/27/48/Add.5, para. 78.
14 See opinions No. 60/2018 and No. 23/2019.
15 In accordance with the principles set out in General Assembly resolutions 1514 (XV), 1541 (XV) and
2625 (XXV).
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Working Group concluding that Saharan persons had been detained because of their identity
and their support for this cause.1617
46.
According to the source, Mr. Al-Bashir Ibrahim was targeted and detained because of
his Saharan identity and his views on the Saharan people’s right to self-determination.18 He
was thus detained on discriminatory grounds, in violation of articles 1, 2, 26 and 27 of the
Covenant. The source argues that the Spanish authorities are also responsible, in that they
handed Mr. Al-Bashir Ibrahim over to the Moroccan authorities despite clear evidence that
he would be prosecuted there on discriminatory grounds.
47.
Lastly, the source maintains that the arrest, detention and acts of torture committed
against Mr Al-Bashir Ibrahim constitute a violation of international humanitarian law. It
claims that the authorities have violated articles 47 and 147 of the Fourth Geneva Convention
by removing Mr. Al-Bashir Ibrahim from the protection of the Convention, and by forcing
the Saharan population to pledge allegiance to Morocco in order to silence calls for
self-determination for the people of Western Sahara. The source invites the Working Group
to apply international humanitarian law in order to guarantee the protection of the Saharan
people.
(b)
Response from the Government of Spain
48.
The Working Group transmitted a communication concerning Mr. Al-Bashir Ibrahim
to the Spanish Government on 29 July 2024, requesting it to specify the legal provisions
justifying his detention and their compatibility with Spain’s obligations under international
human rights law, and in particular with the treaties ratified by the State. The Working Group
received the Government’s response on 6 September 2023, within the deadline set.
49.
In its response, the Spanish Government points out that, on 12 January 2019,
Mr. Al-Bashir Ibrahim entered Spanish territory illegally by sea. He was therefore arrested
under applicable law, which requires the return to the place of origin of any person attempting
to enter the country illegally.19 In order to guarantee this return, Community and national
regulations reportedly allow the detention of foreigners, so that the deprivation of liberty of
Mr. Al-Bashir Ibrahim was a legal procedure with a legal basis.
50.
The Spanish Government maintains that procedures for expulsion, return and refusal
of entry are carried out in full compliance with the guarantees recognized in the legal
framework, which includes the treaties ratified by Spain. This includes applicable guarantees,
such as the right to free legal assistance and an interpreter, effective judicial protection and
the right to appeal against administrative decisions.
51.
The Spanish Government maintains that it has not identified any file in the databases
of the Spanish police indicating that Mr. Al-Bashir Ibrahim had applied for international
protection, or that he was registered as an asylum-seeker. Consequently, at the time of the
events, he was not subject to the principle of non-refoulement. Thus, his return to his place
of origin reportedly took place on 16 January 2019.
(c)
Response from the Government of Morocco
52.
On 29 July 2024, the Working Group transmitted to the Government of Morocco a
communication concerning Mr. Al-Bashir Ibrahim, with the same requests as that transmitted
to the Government of Spain. The Working Group also called upon the Government of
Morocco to ensure Mr. Al-Bashir Ibrahim’s physical and mental integrity.
53.
In accordance with paragraph 16 of the Working Group’s methods of work, the
Government of Morocco requested an extension, which was granted with a deadline of
25 October 2024.
16 See CAT/C/MAR/CO/4, A/HRC/22/53/Add.2 and A/HRC/27/48/Add.5.
17 Opinions No. 11/2017, No. 31/2018, No. 58/2018, No. 60/2018, No. 23/2019, No. 67/2019,
No. 52/2020 and No. 68/2020.
18 See opinion No. 60/2018.
19 Spain, Organic Law No. 4/2000 on the rights and freedoms of foreigners in Spain and their social
integration, 11 January 2020, art. 58 (3) (b).
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9
54.
In its response of 25 October 2024, the Moroccan Government contests the source’s
submissions, which it considers unfounded. It maintains that Mr. Al-Bashir Ibrahim is
deprived of his liberty by a judicial decision following student clashes that took place on
23 January 2016 on a campus in Marrakech, which resulted in the death of a student.
55.
In response to the allegation that Mr. Al-Bashir Ibrahim had been arrested without an
arrest warrant or notification of the reasons for his arrest, the Moroccan Government replies
that, after it had been established that he had participated in the planning of the incidents on
the campus and had incited their commission, the competent public prosecutor’s office issued
instructions to issue search warrants for all those involved, including Mr. Al-Bashir Ibrahim,
who had meanwhile fled to Spain. Both at the time of his arrest and during his transfer,
Mr. Al-Bashir Ibrahim was reportedly informed of the charges against him and of all his
rights, but he stated that he wished to reflect on the right to appoint a lawyer and to do that at
a later date.
56.
With regard to the allegations that his family was unable to obtain information about
his situation until 21 January 2019, the Moroccan Government maintains that Mr. Al-Bashir
Ibrahim was able to contact a member of his family.
57.
Otherwise, the Moroccan Government considers that Mr. Al-Bashir Ibrahim has not
provided sufficient information to support the allegation that he was attacked by an officer at
the Marrakech police station during the preliminary interrogation. It notes that no complaint
was lodged to this effect by Mr. Al-Bashir Ibrahim. Furthermore, there was no indication in
any of the interrogation reports that such an act had been committed. The Moroccan
Government points out that, under article 134 of the Code of Criminal Procedure, a judge is
obliged to order a medical assessment of a detainee if he or she notes signs of ill-treatment
on the person, which did not happen in this case.
58.
The Moroccan Government reiterates that the arrest and prosecution of Mr. Al-Bashir
Ibrahim have nothing to do with his exercise of the right to freedom of expression or his
alleged human rights activities, but, rather, result from the fact that he has allegedly
committed criminal acts. In this respect, he has reportedly been acquitted of the crime of
premeditated homicide and the charge has been reclassified as a lesser crime, which means
that the claims of alleged reprisals against him are invalid. The Government adds that the
status of political opponent and the freedom of expression cannot be used to escape
responsibility for the commission of criminal acts. It also underlines its commitment to the
prohibition of discrimination, pointing out that this is enshrined in the Constitution, as well
as in the Criminal Code. It thus rejects any link between Mr. Al-Bashir Ibrahim’s
geographical affiliation and his arrest and prosecution.
59.
The Government of Morocco denies that Mr. Al-Bashir Ibrahim’s conviction was
based solely on the police reports, which he had refused to sign, and the statements of the
group of students obtained through torture. He said that the court had relied on a full
assessment of the case file and the available evidence, which it considered consistent with
the statements made by Mr. Al-Bashir Ibrahim in the preliminary investigation report, which
it claims complied with all the prescribed legal guarantees. The Government of Morocco
adds that it has not been shown that Mr. Al-Bashir Ibrahim’s confession was made under
torture or coercion.
60.
With regard to the source’s assertion that the hearings were postponed several times,
the Moroccan Government maintains that these postponements took place either as a result
of the health measures that the judicial authorities were obliged to adopt during the
coronavirus disease (COVID-19) pandemic, or at the request of Mr. Al-Bashir Ibrahim, so
that he could prepare his defence, or to bring him from the prison after he had refused a
remote trial due to the health measures. The Government confirms, in this regard, that
Mr. Al-Bashir Ibrahim’s lawyer attended all the appeal hearings, whether remotely or in
person, with the exception of the session of 22 July 2020. On that occasion, another lawyer
reportedly requested, on behalf of Mr. Al-Bashir Ibrahim, additional time to prepare the
defence. As a result, the court adjourned the hearing to 23 September 2020, when
Mr. Al-Bashir Ibrahim’s lawyer reportedly appeared.
61.
With regard to the failure of Mr. Al-Bashir Ibrahim’s defence counsel to attend the
hearing on 19 April 2019, the Moroccan Government stresses that, contrary to the statements
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made by the source, no hearing had been scheduled for that day, given that the first hearing
had taken place on 16 April 2019, at which time it had been decided to postpone the case to
11 June 2019. The Government maintains that the trial of Mr. Al-Bashir Ibrahim was
conducted in compliance with all national and international guarantees of a fair trial.
62.
With regard to his conditions of detention, the Moroccan Government confirms that
Mr. Al-Bashir Ibrahim is serving his sentence in humane conditions, without the slightest
discrimination. With regard to the complaint lodged with the public prosecutor of the
Marrakech Court of Appeal by Mr. Al-Bashir Ibrahim concerning the conditions of his
detention in Oudaya prison, the Moroccan Government specifies that Mr. Al-Bashir Ibrahim
was informed that, following the investigations carried out by the public prosecutor’s office,
his complaint had been closed by order of 19 April 2019, due to the absence of any element
constituting an offence, the case being linked to the internal prison regulations. His detention
in that prison was thus allegedly otherwise in line with international standards. In particular,
Mr. Al-Bashir Ibrahim was placed in a collective cell meeting all requirements in terms of
ventilation, sanitary facilities, lighting and bedding. No acts of reprisal were committed
against him, and he was not placed in solitary confinement.
63.
In response to the allegation that Mr. Al-Bashir Ibrahim was allegedly beaten by
guards at Aït Melloul prison on 27 December 2019, when he was temporarily transferred
there to sit university exams, investigations by the Public Prosecutor’s Office have reportedly
concluded that he was not subjected to any physical or verbal aggression, even though the
Moroccan Government notes that Mr. Al-Bashir Ibrahim had refused to comply with the
usual inspection procedures. The investigations nevertheless concluded that he enjoyed,
without any discrimination whatsoever, all the rights guaranteed by the law governing prisons
and related regulations.
64.
The conditions in Aït Melloul prison reportedly meet prison standards, since
Mr. Al-Bashir Ibrahim was able to sit his university exams, obtaining, furthermore, a law
degree from Ibn Zohr University. Like other detainees, he enjoyed adequate bedding and the
possibility of using the prison’s landline telephone according to the established schedule, i.e.
for ten-minute calls three times a week.
65.
The Moroccan Government also notes that no complaint has been received by the
Public Prosecutor’s Office regarding any threats and physical assaults suffered by
Mr. Al-Bashir Ibrahim at the hands of prison guards at Bouizakarne prison on 10 March
2022.
66.
With regard to the hunger strike that Mr Al-Bashir Ibrahim carried out from 9 to
30 April 2019, as a result of what he considered to be a denial of his right to a defence, the
public prosecutor’s office reportedly immediately took the initiative to interview him on
10 April 2019, following which Mr Al-Bashir Ibrahim decided to end his hunger strike on
26 April 2019. The Moroccan Government maintains that Mr. Al-Bashir Ibrahim was not
prevented from communicating with his lawyer during his hunger strike. He was also under
constant medical supervision during this period, in accordance with the guidelines for
managing hunger strikes in prison.
67.
Since 23 March 2023, Mr. Al-Bashir Ibrahim has been held in the Moul el Berki
central prison, where his conditions meet international standards. Among other things, he
reportedly has an individual cell, the opportunity for physical exercise and the possibility of
making telephone calls and receiving visits from his family, the most recent of which took
place on 17 October 2024. He is also reportedly pursuing postgraduate studies by distance
learning. Finally, the Moroccan Government details the state of health of Mr. Al-Bashir
Ibrahim, who is reportedly not suffering from any chronic illness and has had several medical
consultations for ordinary symptoms. Since the beginning of his imprisonment, he has not
required any specific medical intervention. His hunger strikes from 19 to 21 March and from
9 to 26 April 2019 reportedly had no impact on his health.
(d)
Additional comments from the source
68.
The responses from the two Governments having been forwarded to the source, the
latter submitted its additional comments on 21 October 2024, with regard to the reply from
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11
the Spanish Government, and on 3 November 2024, with regard to the reply from the
Moroccan Government.
(i)
Spain
69.
According to the source, Mr. Al-Bashir Ibrahim submitted his application for
international protection before a judge on 14 January 2019. Despite the judge’s assurances
that his request would be processed, Mr. Al-Bashir Ibrahim was deported to Morocco three
days later.
70.
The source considers that the request for protection triggered positive obligations for
the Spanish Government under the Convention relating to the Status of Refugees, obligations
which it has failed to meet. Mr. Al-Bashir Ibrahim was reportedly transferred to a detention
centre and deported even before his three-day deadline for appealing the decision had
expired.
71.
Recalling the Working Group’s position that the irregular entry of migrants should
not be considered a criminal offence, the source maintains that the Spanish Government has
effectively criminalized Mr. Al-Bashir Ibrahim’s request for asylum, notably by placing him
under arrest and then in detention. These failings by the Spanish Government are allegedly
in violation of the provisions of the Covenant, the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and the Convention relating to the
Status of Refugees. Consequently, Spain is allegedly responsible for the deprivation of liberty
of Mr. Al-Bashir Ibrahim, and his treatment is similar to that in other cases of alleged forced
expulsion of Saharan persons who had sought political asylum in Spain. The source therefore
maintains that the various violations by Spain are relevant under each of the five categories
defined in the Working Group’s methods of work.
(ii)
Morocco
72.
As for the response of the Government of Morocco, the source rejects all the facts as
reported by it. It states that, contrary to the documents provided by the Moroccan
Government, Mr. Al-Bashir Ibrahim’s family was not informed of his arrest. Furthermore, it
denies that he was offered legal assistance at the time of his arrest, arguing that the police
reports presented are neither reliable nor credible.
73.
The source reiterates that Mr. Al-Bashir Ibrahim has not committed any act that
violates the law, that the criminal justice system is instrumentalized to persecute dissidents
and human rights defenders, and that he is being targeted for his political activism.
74.
The source also reiterates its arguments that no proceedings should have been initiated
against Mr. Al-Bashir Ibrahim, given the exculpatory evidence and the use of confessions
signed under torture. It confirms that the criminal proceedings began on 16 April 2019, and
that the hearings were adjourned on the same day due to the failure to summon the defence
to appear before the court.
75.
The source reiterates that the arrest and continued detention of Mr. Al-Bashir Ibrahim
is due to his Saharan origin and his support for the Saharan people’s right to
self-determination. It also rejects the information provided by the Moroccan Government on
the prison conditions in which Mr. Al-Bashir Ibrahim is being held and expresses its concern
at the Moroccan Government’s refusal to investigate the situations reported.
2.
Discussion
76.
The Working Group thanks the source and the two Governments for their
submissions.
77.
In determining whether the deprivation of liberty of Mr. Al-Bashir Ibrahim is
arbitrary, the Working Group has regard to the principles established in its jurisprudence to
deal with evidentiary issues. If the source has presented reasonable evidence and established
a prima facie case for breach of international human rights law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
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to refute the allegations. Mere assertions by the Government that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.20
(a)
Category I
78.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without a legal basis.
(i)
Spain
79.
Article 9 of the Universal Declaration of Human Rights and principles 2 and 10 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment require that procedures for carrying out a legally authorized deprivation of
liberty be provided for by law, and that States ensure that they are respected, including by
specifying when an arrest warrant is required. If these procedures are not respected, a
detention is arbitrary and seriously undermines the ability to conduct a proper legal defence.
As the Working Group has previously stated, for a deprivation of liberty to have a legal basis,
it is not sufficient that there is a law which may authorize 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 or order (or equivalent document).
80.
The Working Group notes the assertion by the source that Mr. Al-Bashir Ibrahim
arrived in Spain by boat and was detained by the Spanish authorities upon arrival. This is
largely consistent with the Spanish Government’s version of his detention. In its response,
the Government sets out the legal basis for his detention and transfer to Morocco, namely his
illegal entry into the country, including under national and European law. The source does
not deny that these provisions constitute a legal basis for detaining and transferring a person
to his or her State of nationality. Accordingly, the Spanish Government provided a detailed,
reasoned response setting out the basis for Mr. Al-Bashir Ibrahim’s detention, including his
irregular entry into the country. The source has not addressed these provisions. As far as an
arrest warrant is concerned, this procedure is not applicable, as he was arrested on arrival in
Spain, leaving the authorities no time to obtain an arrest warrant before his detention. It
follows that no violation of the prohibition of arbitrary detention has been demonstrated in
this respect.
81.
With regard to Spain’s failure to process his asylum application, the source maintains
that Mr. Al-Bashir Ibrahim applied for asylum but did not have the opportunity to have his
application examined. However, in view of the circumstances, including the fact that
Mr. Al-Bashir Ibrahim had an interpreter and a lawyer for at least part of the time he was in
Spain, and that the authorities found no indication that he had applied for asylum, the
Working Group does not consider that this allegation has been established. Insofar as
Mr. Al-Bashir Ibrahim expressed orally, during the proceedings, his fear of being killed if
returned to Morocco, he chose not to file an asylum application on this basis, despite the
presence of a lawyer and an interpreter. Furthermore, the Working Group notes that this
concerns the right to asylum and not the legal basis for his detention, which has been outlined
above. There is no indication that his detention was sufficiently prolonged to fall under
category IV of the Working Group’s working methods, which relates to immigration and
asylum detention. Furthermore, there is no indication that Spain undertook its actions with
the aim of facilitating a subsequent unlawful act committed by the authorities of another
jurisdiction.21 Noting that each case must be determined on its own facts, the Working Group
cannot conclude that Mr. Al-Bashir Ibrahim’s detention in Spain was arbitrary.
82.
The source claims that Mr. Al-Bashir Ibrahim was placed in solitary confinement in
Spain and deprived of all contact with the outside world for two days, during which time he
20 A/HRC/19/57, para. 68.
21 See International Law Commission, Yearbook of the International Law Commission 2001, vol. II,
Part Two (United Nations publication, Sales No.: F.04.V.17 (Part 2)) and corrigendum, p. 71,
paragraph 9 of the commentary to article 16 of the draft articles on responsibility of States for
internationally wrongful acts (“the circumstances of each case must be carefully examined to
determine whether the aiding State by its aid was aware of and intended to facilitate the commission
of the internationally wrongful conduct”).
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13
went on hunger strike. According to the Spanish Government, Mr. Al-Bashir Ibrahim’s return
to Morocco was carried out in accordance with the legal framework in force in Spain, which
is compatible with the international obligations assumed.
83.
The Working Group notes that, according to the source, Mr. Al-Bashir Ibrahim made
contact with his family on 13 January 2019. Furthermore, the source acknowledges that, upon
his arrest, he was provided with an interpreter and a lawyer, and that they were with him
when he appeared in court on 14 January 2019 in Arrecife. In view of these factors, the
Working Group does not consider that he was excluded from the protection of the law while
in Spain.
84.
On the basis of the foregoing, the Working Group is unable to conclude that
Mr. Al-Bashir Ibrahim was subjected to arbitrary detention by Spain.
(ii)
Morocco
85.
With regard to events in Morocco, as indicated above, detainees have the right to be
informed without delay of the charges against them. If these procedures are not respected, a
detention is arbitrary and seriously undermines the ability to conduct a proper legal defence.
86.
As the Working Group has previously stated, for a deprivation of liberty to have a
legal basis, it is not sufficient that there is a law which may authorize the arrest. The reasons
for arrest must be provided immediately upon arrest and must include not only the general
legal basis of the arrest, but also enough specific facts to indicate the substance of the
complaint, such as the wrongful act and the identity of an alleged victim.
87.
According to the source, on 17 January 2019, the day that Mr. Al-Bashir Ibrahim was
transferred by Spain to Morocco, he was arrested by the Directorate-General for National
Surveillance without being informed of the reasons for his arrest. However, having assessed
the arguments presented by the source, the Working Group takes note of its additional
comments on the reply of the Government of Morocco, in which the source acknowledges
that Mr. Al-Bashir Ibrahim fled Morocco for fear of facing the charges brought against him.
This indicates that he was aware of the reason for his arrest, which is also corroborated by
the Moroccan Government’s insistence that he was indeed informed, as well as by the
detailed documents provided by it indicating the arrest note prepared on 19 January 2019,
which states that he was informed that he was being arrested for crimes, including murder.
For this reason, the Working Group does not consider that it has been demonstrated that
Mr. Al-Bashir Ibrahim was unaware of the reasons for his arrest.
88.
According to the source, Mr. Al-Bashir Ibrahim was interrogated for 48 hours, during
which time he was reportedly unable to contact his family or lawyer. Mr. Al-Bashir Ibrahim
reportedly had access to a lawyer for the first time when he appeared before the judge on
21 January 2019. In total, according to the source, Mr. Al-Bashir Ibrahim was deprived of
the protection of the law for five days after his arrest by the Moroccan authorities. However,
the detailed documents provided by the Moroccan Government indicate that he was informed
of his right to appoint a lawyer and to contact a member of his family on 19 January 2019,
again the following day and again during his interview with the investigating judge on
21 January 2019, but that he refused to exercise his right to communicate with a lawyer at
this stage of the investigation.
89.
The right to have recourse to a court to challenge the arbitrary nature and legality of
detention, and to obtain adequate and accessible redress, is inalienable under international
law. According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal
charge is to be brought promptly before a judicial authority. As the Human Rights Committee
has stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee
“promptly” before a judge following his or her arrest, and any longer delay must remain
absolutely exceptional and be justified under the circumstances. Article 9 (4) of the Covenant
guarantees the right to challenge the lawfulness of detention before a court. Judicial oversight
of detention is a fundamental safeguard of personal liberty and is essential in ensuring that
detention has a legal basis.
90.
Taking into account all the allegations made by the parties, the Working Group notes
that the Moroccan Government has not explained why 96 hours elapsed before Mr. Al-Bashir
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Ibrahim was brought before a judge following his arrest on arrival in Morocco. Article 9 (3)
of the Covenant has therefore been violated. Thus, the Working Group concludes that
detention of Mr. Al-Bashir Ibrahim is arbitrary under category I.
(b)
Category II
91.
The Working Group recalls that the freedoms of expression and association are not
absolute rights and that they can be subject to restrictions for reasons relating, in particular,
to national security and public order. The Working Group considers that the acts alleged by
the Moroccan Government, in particular the murder for which Mr. Al-Bashir Ibrahim was
charged and convicted, fall within the exceptions relating to security and public order
provided for in articles 19 (3) and 21 of the Covenant. It notes the source’s reference to police
questioning about Mr. Al-Bashir Ibrahim’s activities as a student protester, but also notes that
the murder allegedly took place in the context of clashes between two groups of student
activists and on the basis of Mr. Al-Bashir Ibrahim’s involvement in organizing these clashes.
This indicates a link between student activism and the investigation into the criminal charges
brought against him.
92.
The Working Group therefore considers that, in the light of the information received,
it cannot conclude that the arrest and detention of Mr. Al-Bashir Ibrahim resulted from the
peaceful exercise of his rights to freedom of expression and assembly and would therefore
be arbitrary under category II. It should be noted, however, that its conclusions do not concern
the substance of the conviction, as it is not the role of the Working Group to assess the
adequacy of the evidence underlying the alleged crimes.
(c)
Category III
93.
Taking note of the source’s allegations of ill-treatment and torture, and of the fact that
some of this ill-treatment is said to have resulted in confessions used by the court, the
Working Group considers that the Moroccan Government has not sufficiently demonstrated
the measures taken to investigate the veracity of these allegations and to guarantee that no
information obtained through ill-treatment or torture has been used in the judicial
proceedings. Although Mr. Al-Bashir Ibrahim did not sign the police reports, indicating that
his will was not dominated by ill-treatment that may or may not have taken place, the
Working Group is concerned that the Moroccan Government has not investigated the alleged
ill-treatment. It recalls that article 15 of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment and Punishment prohibits the use of evidence obtained
through torture. The Working Group itself has stated that the use of evidence obtained
through torture is contrary to the fundamental principles of a fair trial, as it can compromise
a person’s ability to defend himself or herself. In addition, it notes that the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment includes the
obligation to investigate alleged violations promptly and bring the perpetrators to justice. The
Working Group therefore finds a violation by Morocco of article 14 of the Covenant and
article 11 of the Universal Declaration of Human Rights.
94.
The Working Group notes that the right to a fair trial is violated when a government
denies an accused person sufficient time and means to prepare his defence. This standard is
reflected in article 11 of the Universal Declaration of Human Rights, which stipulates that
accused persons must enjoy all the procedural guarantees necessary to prepare their defence.
Taking into account the detailed statements of the source and the lack of detail in the reply
of the Moroccan Government, the Working Group considers that the proceedings against
Mr. Al-Bashir Ibrahim violated article 14 (1) and (3) (b) and (e) of the Covenant. As the
Working Group has already noted, the refusal to allow defence witnesses to appear is a denial
of equality of arms. The Working Group recalls that there is a strict obligation, under
article 14 (3) (e) of the Covenant, to respect the right of accused persons to examine, or have
examined, the witnesses against them and to obtain the attendance and examination of
witnesses on their behalf under the same conditions as witnesses against them.
95.
For the abovementioned reasons, the Working Group considers that the source’s
arguments are more convincing and finds violations by Morocco of article 14 (3) of the
Covenant, principles 15-19 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and principle 9 of the United Nations Basic
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15
Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of
Their Liberty to Bring Proceedings Before a Court.
96.
The Working Group thus concludes that the violations by Morocco of Mr. Al-Bashir
Ibrahim’s right to a fair trial and due process are of such gravity as to render his deprivation
of liberty arbitrary under category III.
(d)
Category V
97.
The Working Group notes that the charges brought against Mr. Al-Bashir Ibrahim
concern serious crimes, including murder, for which any person may be charged, regardless
of identity or political opinion. The Working Group notes that its role is not to re-evaluate
the underlying evidence. On the basis of the evidence provided, the Working Group is unable
to conclude that Mr. Al-Bashir Ibrahim was detained in a manner that could be qualified as
discriminatory under category V.
(e)
Concluding observations
98.
The Working Group is disturbed by the allegations concerning the conditions of
detention of Mr. Al-Bashir Ibrahim, which have not been adequately refuted by the Moroccan
Government. The Working Group recalls that, according to article 10 (1) of the Covenant
and rules 1, 24, 27 and 118 of the United Nations Standard Minimum Rules for the Treatment
of Prisoners (the Nelson Mandela Rules), all persons deprived of their liberty must be treated
with humanity and with respect for their inherent dignity, including by being allowed to enjoy
the same standards of health care that are available in the community.
3.
Disposition
99.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Al-Hussein al-Bashir Ibrahim, being in
contravention of articles 9 and 11 of the Universal Declaration of Human Rights and
articles 9 and 14 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I and III.
100.
The Working Group requests the Government of Morocco to take the steps necessary
to remedy the situation of Mr. Al-Bashir Ibrahim 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.
101.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al-Bashir Ibrahim immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
102.
The Working Group urges the Government of Morocco to ensure a full and
independent investigation of the circumstances surrounding the arbitrary deprivation of
liberty of Mr. Al-Bashir Ibrahim and to take appropriate measures against those responsible
for the violation of his rights.
103.
The Working Group requests the Government of Morocco to disseminate the present
opinion through all available means and as widely as possible.
4.
Follow-up procedure
104.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government of Morocco to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Al-Bashir Ibrahim has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al-Bashir
Ibrahim;
(c)
Whether an investigation has been conducted into the violation of
Mr. Al-Bashir Ibrahim’s rights and, if so, the outcome of the investigation;
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(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.
105.
The Government of Morocco 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.
106.
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 of any failure to take action.
107.
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.22
[Adopted on 13 November 2024]
22 Human Rights Council resolution 51/8, paras. 6 and 9.