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.25-08765 (E) 060825 060825
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 20/2025 concerning Yidiresi Aishan (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 29 November 2024 the Working Group
transmitted to the Government of Morocco a communication concerning Yidiresi Aishan.
The Government has not replied to the communication within the established time frame.
The State is a Party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States Parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/20
General Assembly
Distr.: General
11 June 2025
English
Original: French
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1.
Submissions
(a)
Communication from the source
(i)
Facts reported
4.
Yidiresi Aishan, also known as Idris Hasan, is a Chinese citizen of Muslim faith, born
in 1988 and belonging to the Uighur minority.
5.
In 2012, Mr. Aishan and his family reportedly decided to move to Türkiye to have
more employment opportunities, and Mr. Aishan worked there as an information technology
specialist. Since his arrival in Türkiye, he has been very alive to the issue of human rights in
the Xinjiang Uighur Autonomous Region and has engaged in efforts to help refugees in
Türkiye.
6.
In 2021, Mr. Aishan decided to apply for asylum in a European Union member
country, believing that he was no longer safe in Türkiye. As he was unable to book a direct
flight to one of these countries, he was forced to travel to Morocco with the intention of
travelling on to a European country at a later stage.
7.
On the night of 19 to 20 July 2021, upon arrival at the airport in Casablanca,
Mr. Aishan was arrested pursuant to a Red Notice issued by the International Criminal Police
Organization (INTERPOL) at the request of China. On 20 July 2021, airport officers handed
him over to the national brigade of the criminal investigation department and informed him
that he was wanted by the Chinese authorities in a terrorism case. Mr. Aishan signed a
declaration that he had been informed of the existence of a Red Notice issued for him and the
reasons for his arrest.
8.
On the same day, Mr. Aishan was reportedly brought before the prosecutor at the
Casablanca Court of First Instance, without access to legal counsel. Mr. Aishan said that he
had been informed of the international arrest warrant issued for him and that he was wanted
by the Chinese authorities because of his religion. The prosecutor ordered that he should be
placed in custody at Tiflet 2 prison, pending an opinion from the Court of Cassation on the
extradition proceedings.
9.
After he was placed in custody pending extradition, Mr. Aishan filed an asylum
application with the Office of the United Nations High Commissioner for Refugees
(UNHCR) in Rabat.
10.
On 11 August 2021, INTERPOL informed the National Central Bureau in Rabat that
the Red Notice had been cancelled for failure to comply with articles 2 and 3 of the
Constitution of INTERPOL and its Rules on the Processing of Data. The cancellation of the
Red Notice was made public on 25 August 2021. However, on 13 August 2021, the Moroccan
authorities reportedly received an official request from the Chinese authorities for the
provisional arrest of Mr. Aishan.
11.
The source notes that, on 11 August 2021, special procedure mandate holders of the
Human Rights Council sent an urgent appeal to the Moroccan authorities regarding
Mr. Aishan’s situation. In it, the special rapporteurs expressed their concern about
Mr. Aishan’s potential extradition to China, where he risked being subjected to torture and
other ill-treatment both for his membership of an ethnic and religious minority and his alleged
affiliation with a terrorist organization.2
12.
On 12 August 2021, Mr. Aishan’s case was brought before the Criminal Chamber of
the Court of Cassation for a ruling on the extradition request. The hearing was postponed
because the Court had not yet obtained the indictment from the Chinese authorities, as
required under article 5 of the extradition agreement between Morocco and China. On
26 August 2021, Mr. Aishan was brought before the Court of Cassation a second time. As
the Court had still not received the extradition request, the hearing was postponed until
1 September 2021. On 30 August 2021, the Moroccan authorities finally received the file
2 See communication MAR 7/2021, available at:
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26609.
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containing the extradition request and transmitted it to the Court of Cassation. The source
notes that the Court of Cassation had also been informed of the cancellation of the Red
Notice.
13.
On 1 September 2021, Mr. Aishan was brought before the Court of Cassation for a
third time and informed that the extradition request had been received on 30 August 2021.
14.
On 22 September 2021, Mr. Aishan was again brought before the Court of Cassation.
The defence pointed out that the extradition request had not been drawn up by an independent
judicial authority but by a government agency, namely the Ministry of Public Security.
15.
On 21 October 2021, the UNHCR office in Morocco issued a certificate in which it
stated that Mr. Aishan had the status of an asylum-seeker and recalled that, as such, until a
final decision had been taken on his application for refugee status, he should be protected in
particular against any forced return to a country where he feared being exposed to threats to
his life or freedom.
16.
A new hearing took place on 27 October 2021, during which the defence requested
Mr. Aishan’s provisional release. This request was rejected, and 24 November 2021 was set
as the date of the next hearing.
17.
On 24 November 2021, the defence presented its arguments and invoked the existence
of substantial grounds for believing that Mr. Aishan would be at risk of being subjected to
torture if extradited. Nevertheless, on 15 December 2021, the Court of Cassation ruled in
favour of the extradition request,3 holding that the crimes for which Mr. Aishan was sought
were not of a political nature. Rejecting the defence’s argument in which it recalled
Mr. Aishan’s status as an asylum-seeker, the Court held that simply requesting political
asylum in a given State could not have the consequence or effect of a refusal to extradite a
person who had not yet been recognized as a refugee.
18.
On 20 December 2021, the Committee against Torture submitted a request for interim
measures to the Moroccan authorities, urging them not to extradite Mr. Aishan while his
complaint was being considered by the Committee.
19.
On 21 February 2022, the Government of Morocco transmitted its observations to the
Committee against Torture, in which it contested the admissibility of the complaint on the
grounds that, on 1 February 2022, in his defence, Mr. Aishan had filed an application for
revocation of the decision of the Court of Cassation in favour of his extradition. The source
notes that this appeal, which does not have a suspensive effect, was subsequently rejected by
the Court of Cassation.
20.
The source explains that, although the Moroccan authorities have not formally agreed
to implement the interim measures requested by the Committee against Torture, the
Government has decided to suspend the extradition proceedings until the Committee has
given an opinion on the form and substance of the case. Therefore, since 20 December 2021,
Mr. Aishan’s detention is said to have been based on the implicit implementation of the
interim measures requested by the Committee against Torture.
21.
On 15 July 2024, the Committee against Torture issued its final decision, in which it
found that the extradition of Mr. Aishan to China would constitute a violation of article 3 of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.4 Noting furthermore that Mr. Aishan had been in preventive detention for almost
2 years, the Committee concluded that the State Party had an obligation to release him or to
bring him to trial if charges were brought against him in Morocco.
22.
In its comments addressed to the Committee against Torture on 31 October 2024 on
the measures taken to comply with the Committee’s decision, the Government of Morocco
asserted that Mr. Aishan’s detention was justified by the ongoing review of the appeal lodged
with the Court of Cassation.
3 Moroccan Court of Cassation, ruling No. 1799, case No. 16129/3/6/2021.
4 Aishan v. Morocco (CAT/C/80/D/1111/2021), para. 11.
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23.
The source explains that this application for revocation of the decision was introduced
entirely on the initiative of a certain lawyer and without the prior consent of Mr. Aishan, who
was opposed to it. It considers that, in any case, such an appeal cannot justify Mr. Aishan’s
continued detention.
24.
Mr. Aishan has been detained at Tiflet 2 prison since 20 July 2021. Since March 2023,
his telephone contact with his family has reportedly been restricted to one call a week. In
addition, Mr. Aishan has been held in solitary confinement since the beginning of his
detention and remains in solitary confinement to date. His mental state is said to be unstable
and he requires medical attention.
(ii)
Legal analysis
25.
The source claims that Mr. Aishan’s detention is arbitrary under categories I, III and
IV. As a preliminary argument, the source argues that its request for an opinion is admissible,
notwithstanding the decision of the Committee against Torture issued on 15 July 2024.
a.
Admissibility
26.
The source refers to paragraph 33 (d) (ii) of the methods of work of the Working
Group, which provides that the Working Group will transmit a case to another body that has
the function of dealing with individual cases and to which the matter has already been referred
if the person and facts involved are the same. The source does not consider this paragraph to
be applicable in the present case because the substantive issues raised before the Committee
against Torture in the request for interim measures are different from those raised before the
Working Group in the request for an opinion.
27.
The source specifies that it had requested the Committee against Torture to request
interim measures to be taken, citing a possible violation of the principle of non-refoulement
set out in article 3 of the Convention against Torture should Mr. Aishan be extradited from
Morocco to China. However, in its request for an opinion from the Working Group, it asks
the latter to assess the legal basis for Mr. Aishan’s continued and indefinite detention and the
failure to comply with fair-trial standards during the consideration of the extradition request
by the Court of Cassation on 15 December 2021. As an asylum-seeker, Mr. Aishan is said to
have been subjected to prolonged administrative custody without the possibility of
administrative or judicial review or remedy.
28.
The source argues that paragraph 33 (d) (ii) of the methods of work of the Working
Group echoes article 22 (5) (a) of the Convention against Torture, which provides that the
Committee against Torture will not consider any communications from an individual unless
it has ascertained that the same matter has not been and is not being examined under another
procedure of international investigation or settlement.
29.
The source also points out that the Committee against Torture has already had to
decide on cases previously examined by the Working Group.5 According to the source, in the
case of Hajib v. Morocco, the Committee adopted a decision even though the victim had
previously been the subject of an opinion issued by the Working Group in 2012 6 and a
communication from the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment.
30.
The source submits that, in its consideration of admissibility, the Committee against
Torture took the view that extra-conventional procedures or mechanisms did not constitute a
procedure of international investigation or settlement within the meaning of article 22 (5) (a)
of the Convention against Torture. Consequently, consideration of Mr. Aishan’s case under
these procedures did not render the communication inadmissible under this provision in
accordance with the Committee’s jurisprudence on the matter.7
5 Hajib v. Morocco (CAT/C/74/D/928/2019), para. 2.16.
6 Opinion No. 40/2012.
7 Hajib v. Morocco, para. 8.1; see also Bendib v. Algeria (CAT/C/51/D/376/2009), para. 5.1; and
Niyonzima v. Burundi (CAT/C/53/D/514/2012), para. 7.1.
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b.
Category I
31.
According to the source, Mr. Aishan’s detention is arbitrary under category I because
it is clearly impossible to invoke any legal basis to justify the deprivation of his liberty.
32.
The source claims that Mr. Aishan is being held even though the Red Notice issued
by INTERPOL has been cancelled and the Moroccan authorities were informed of this on
11 August 2021. In the source’s view, the authorities deliberately ignored the risks to
Mr. Aishan identified by INTERPOL and failed to address its concerns about the political
nature of the extradition request. The source notes that the decision of 20 July 2021 to place
Mr. Aishan in custody pending extradition could have been revised when Mr. Aishan’s
lawyers filed applications for provisional release with the Court of Cassation following the
cancellation of the Red Notice on 11 August 2021.
33.
According to the source, the Government’s receipt of the request for provisional arrest
and the request for extradition, on 13 and 30 August 2021 respectively, could have justified
a review of the merits and necessity of Mr. Aishan’s detention, since his detention was based
on the existence of the Red Notice.
34.
The source points out that, under article 721 of the Code of Criminal Procedure, a
request for extradition must not be granted when the offence for which it is requested is
considered a political offence, or an offence connected with a political offence. It notes that
the Court of Cassation nevertheless found that the crimes for which Mr. Aishan is wanted
were not of a political nature, despite the cancellation of the Red Notice for non-compliance
with articles 2 and 3 of the Constitution of INTERPOL and its Rules on the Processing of
Data.
35.
According to the source, the Government continued to keep Mr. Aishan in detention
even though the extradition order had still not been confirmed and the Committee against
Torture had requested Morocco not to extradite him to China while his complaint was being
considered by the Committee. The source submits that implementation of the interim
measures requested by the Committee did not require Mr. Aishan’s continued detention.
Furthermore, the authorities failed to end his detention after being officially informed of the
Committee’s decision on 15 July 2024. In this regard, the source claims that there is no
provision in national law justifying Mr. Aishan’s detention.
36.
The source thus claims that Mr. Aishan’s detention lacks any legal basis and is
therefore arbitrary under category I.
c.
Category III
37.
According to the source, Mr. Aishan’s detention is arbitrary under category III
because he did not have access to a lawyer during the initial stage of his detention, is unable
to appeal the decision of the Court of Cassation and is being subjected to treatment contrary
to article 7 of the Covenant.
38.
The source claims that Mr. Aishan was only able to receive legal assistance from
28 July 2021. On 20 July 2021, Mr. Aishan was reportedly brought before the prosecutor at
the Casablanca Court of First Instance without access to legal counsel. The source notes that
Mr. Aishan was therefore unable to obtain legal advice when he was asked to explain the
personal risks involved in the event of extradition to his country of origin. The source adds
that the Code of Criminal Procedure does not guarantee access to a lawyer during the initial
stage of custody. It underlines the concerns expressed by the Human Rights Committee about
the unduly prolonged periods of police custody and the fact that access to a lawyer is
permitted for a maximum of 30 minutes and only in cases in which the period of police
custody is prolonged.8 According to the source, this is in violation of article 11 of the
Universal Declaration of Human Rights, article 14 (3) (b) of the Covenant, principles 15,
17 (1) and 18 (1) and (2) of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and principle 9 and guideline 8 of the
8 CCPR/C/MAR/CO/6, para. 25.
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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.
39.
Furthermore, the source claims that the decision of the Court of Cassation of
15 December 2021, under which Mr. Aishan is being detained, is not subject to ordinary
appeal and is therefore final and enforceable upon confirmation by decree of the Head of
Government.
40.
The source explains that applications for the revocation of decisions of the Court of
Cassation on extradition may nevertheless be lodged, as was the case here. According to the
source, however, this appeal cannot be considered an effective remedy, as it has no
suspensive effect. Moreover, the Court is not called upon to rule on the legality of the
detention. The source makes specific reference to the conclusion reached by the Committee
against Torture that the absence of an application for revocation of the decision of the Court
of Cassation did not constitute proof of failure to exhaust domestic remedies.9 It notes that
the Committee has called on States to guarantee the right of any person subject to a
deportation order to lodge an appeal with suspensive effect on the enforcement of an order
with an independent administrative and/or judicial body within a reasonable period of time
from the notification of the order,10 a right which has not been respected in Mr. Aishan’s case.
The source claims that, even though Mr. Aishan was not convicted in a criminal trial, this
omission is contrary to article 14 (5) of the Covenant.
41.
Lastly, the source submits that Mr. Aishan is being subjected to treatment contrary to
article 7 of the Covenant, since he has been held in solitary confinement since the beginning
of his detention. The source recalls that, according to the United Nations Standard Minimum
Rules for the Treatment of Prisoners (the Nelson Mandela Rules), solitary confinement must
be accompanied by certain safeguards and may not exceed 15 consecutive days. Solitary
confinement must only be used in exceptional cases as a last resort, for as short a time as
possible, subject to independent review and authorized by a competent authority.11
42.
The source notes that the use of solitary confinement can have serious consequences
for the physical and psychological health of a detained person. In this case, Mr. Aishan’s
mental health is said to have seriously deteriorated, particularly since the second year of his
detention, and he reportedly requires medical attention.
43.
The source claims that the deterioration in Mr. Aishan’s mental health is due, on the
one hand, to the conditions of his detention in solitary confinement and separation from his
loved ones and, on the other, to the bleakness of his situation – Mr. Aishan has had no way
of knowing when his case would be considered by the Committee against Torture – to the
risk that he would be subjected to forced extradition and to the absence of any alternative to
his current detention. The source notes that Mr. Aishan’s state of psychological distress is
consistent with the results of studies demonstrating the impact of detention on migrants’
mental health and with the observations of the Human Rights Committee and the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. 12
Thus, the source notes that factors that do not necessarily constitute ill-treatment when
applied in isolation and for a short time may cross the relevant threshold if they are applied
cumulatively and/or over a prolonged or indefinite period.
44.
The source therefore claims that Mr. Aishan’s detention is arbitrary under
category III.
d.
Category IV
45.
The source submits that Mr. Aishan is being subjected to de facto indefinite detention
because of his migration status, without the possibility of challenging the legality of his
detention before a judicial body and, therefore, in violation of article 9 (4) of the Covenant.
9 Khater v. Morocco (CAT/C/68/D/782/2016), para. 9.5.
10 Committee against Torture, general comment No. 4 (2017), para. 18.
11 Opinion No. 61/2020, para. 85.
12 F.J. et al. v. Australia (CCPR/C/116/D/2233/2013), para. 10.6; and A/HRC/37/50, para. 27.
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46.
The source argues that international standards provide that any form of administrative
detention or custody in migration cases must be applied as an exceptional measure, as a last
resort, for the shortest possible period of time and only if justified by a legitimate purpose,
such as documenting entry and registering claims or initial verification of identity. According
to the source, the sole purpose of administrative detention should be to ensure that expulsion
proceedings are carried out.
47.
In addition, the source recalls that Mr. Aishan’s detention was ordered by the
prosecutor at the Casablanca Court of First Instance on 20 July 2021, despite the fact that
prosecutors are not considered to be eligible to fulfil the function of an independent judicial
authority, given that they have neither the institutional objectivity nor the impartiality
necessary to take the place of a judicial authority in examining the legality of a detention
measure.13
48.
Furthermore, the source claims that the authorities have violated principle 11 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, since Mr. Aishan has been deprived of his right to be brought promptly before
a judicial authority for a periodic and automatic review of his migration detention. The source
adds that the authorities have violated principle 21 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, which provides that States must grant
non-nationals, including asylum-seekers, the right to bring proceedings before a court to
challenge the arbitrariness and lawfulness and the necessity and proportionality of their
detention, to obtain, without delay, appropriate and accessible remedies and to legal
assistance in accordance with the basic requirement of prompt and effective provision of legal
assistance, in a language that they use and in a means, mode or format they understand, and
the right to the free assistance of an interpreter if they cannot understand or speak the
language used in court.
49.
The source adds that guideline 21 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 provides that restriction on the liberty of non-nationals,
including asylum-seekers, refugees and stateless persons, is to be a measure of last resort,
necessary and proportionate, and imposed only where less restrictive alternatives have been
considered and been found to be inadequate to meet legitimate purposes. The source states
that the purpose of Mr. Aishan’s detention is to carry out the request to extradite him to China,
and that such a purpose cannot be considered legitimate due to the existence of substantial
grounds for believing that he would be in danger of being subjected to torture. The source
notes that the Moroccan authorities could have considered less restrictive measures than
detention, in line with the Working Group’s revised deliberation No. 5, which provides that
detention in the context of migration must be applied as an exceptional measure and that, to
this end, alternatives to detention must be sought.14
50.
The source also notes that UNHCR has recognized the effectiveness of several
alternatives to detention for asylum-seekers, such as deposit or surrender of documentation,
the obligation to report to the authorities, measures based on bail or bond and community
supervision and case management.15 It deplores the fact that none of these measures was
envisaged when Mr. Aishan appeared before the prosecutor on 20 July 2021, or at the time
of the hearings before the Court of Cassation during which the requests for conditional release
were rejected. In addition, the source considers that it has not been possible to assess the
13 Kulomin v. Hungary (CCPR/C/56/D/521/1992), para. 11.3; Zheludkov v. Ukraine, communication
No. 726/1996, para. 8.3; Reshetnikov v. Russian Federation (CCPR/C/95/D/1278/2004), para. 8.2;
CCPR/CO/84/TJK, para. 12; E/CN.4/2005/6/Add.4, para. 32 (c) and 78 (a); Inter-American Court of
Human Rights, Acosta-Calderón v. Ecuador, Judgment, 24 June 2005, paras. 79–81; and
Inter-American Court of Human Rights, Chaparro Álvarez and Lapo Íñiguez v. Ecuador, Judgment,
21 November 2007, paras. 84–86.
14 Revised deliberation No. 5 (A/HRC/39/45, annex), para. 16.
15 See the 2015 conference room paper of the Standing Committee of the Executive Committee of the
UNHCR Programme on alternatives to detention, available at
www.unhcr.org/sites/default/files/legacy-pdf/559643e59.pdf.
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proportionality of Mr. Aishan’s detention, since he has not been brought before a judicial
authority since the ruling of 15 December 2021.
51.
Moreover, the source explains that UNHCR has still not been able to move forward
with the asylum application lodged by Mr. Aishan at the start of his detention, as repeated
requests for access to conduct the necessary interviews have been denied. The source believes
that Mr. Aishan’s current detention could prevent UNHCR from completing the procedure
for determining his refugee status.
52.
The source concludes that Mr. Aishan is currently being subjected to indefinite
detention, contrary to international law, and that he has no effective remedy to challenge the
legality of his detention, in violation of articles 8 and 9 of the Universal Declaration of Human
Rights and articles 2 (3) and 9 of the Covenant. The source adds that Mr. Aishan’s detention
contravenes article 14 of the Universal Declaration of Human Rights. The source therefore
submits that Mr. Aishan’s detention is arbitrary under category IV.
(b)
Response from the Government
53.
On 29 November 2024, the Working Group transmitted a communication concerning
Mr. Aishan to the Government, requesting it to provide detailed information about him by
28 January 2025 at the latest. Specifically, the Working Group requested the Government to
clarify the legal provisions justifying his continued detention and their compatibility with the
obligations of Morocco under international human rights law, in particular with the treaties
that the State has ratified. Moreover, the Working Group called upon the Government to
ensure Mr. Aishan’s physical and mental integrity.
54.
On 13 January 2025, the Government requested an extension of the deadline for
response, which was granted, with 28 February 2025 set as the new deadline.
55.
The Government submitted its reply on 3 March 2025, after the deadline.
2.
Discussion
56.
The Working Group regrets that it has not received a reply from the Government to
its communication. In the absence of a timely response from the Government, the Working
Group has decided to render the present opinion, on the basis of all the information available
to it, in conformity with paragraph 16 of its methods of work.
57.
At the outset, the Working Group notes that Mr. Aishan was released on 12 February
2025. In accordance with paragraph 17 (a) of its methods of work, the Working Group
reserves the right to render an opinion on whether the deprivation of liberty was arbitrary,
notwithstanding the release of the person concerned. In the present case, Mr. Aishan has
allegedly been the victim of serious violations of his rights. The Working Group therefore
considers it important to render an opinion on his case.
58.
The Working Group also notes that, on 15 July 2024, the Committee against Torture
adopted a decision concerning the risk of torture or other cruel, inhuman or degrading
treatment if Mr. Aishan were to be returned to his country of origin.
59.
Paragraph 33 (d) (ii) of its methods of work provides that the Working Group will
transmit a case to another United Nations body that is competent in the area of human rights
and has the function of dealing with individual cases if the matter has already been referred
to that body and if the person and facts involved are the same. The Working Group does not
consider this paragraph to be applicable in the present case because the substantive issues
raised before the Committee against Torture and in the request for an opinion submitted to
the Working Group are different. Specifically, the Committee considered the applicability of
article 3 of the Convention against Torture should Mr. Aishan be extradited to China. The
Working Group, on the other hand, has been asked to determine whether his detention was
arbitrary. The Working Group is therefore of the view that it may proceed to examine this
case on its merits.
60.
In determining whether Mr. Aishan’s detention 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
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detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations.16 Mere assertions by the Government that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.17
(a)
Category I
61.
With regard to the submissions by the source in relation to category I, the Working
Group recalls that, according to article 9 (1) of the Covenant, no one may be deprived of his
or her liberty except on such grounds and in accordance with such procedure as are
established by law. Furthermore, article 9 (2) of the Covenant states that anyone who is
arrested must be informed, at the time of arrest, of the reasons for his or her arrest and must
be promptly informed of any charges against him or her.
62.
While Mr. Aishan’s detention on 20 July 2021 was carried out under an INTERPOL
Red Notice, the source notes that this decision could have been reviewed when, following
the cancellation of the Red Notice on 11 August 2021, Mr. Aishan’s lawyers filed
applications for provisional release with the Court of Cassation. In its late response, the
Government submitted that, despite the cancellation of the Red Notice, the Chinese
authorities maintained their extradition request by telegram. In assessing these claims, the
Working Group takes note of reports that, on 11 August 2021, INTERPOL informed the
Moroccan authorities that the Red Notice had been cancelled. Although the Government of
Morocco does not specify the date on which it received the telegram from China requesting
Mr. Aishan’s continued detention following the cancellation of the Red Notice, the source’s
submissions indicate that the telegram was received on 13 August 2021. Given that the reason
for his arrest was based on the INTERPOL notice, and in view of the lack of explanation in
the Government’s reply as to the legal basis for Mr. Aishan’s detention during the two days
following the cancellation of that notice, the Working Group considers that Mr. Aishan’s
continued detention during that two-day interval was unjustified. There has therefore been a
breach of article 9 (1) of the Covenant.
63.
In addition, the source contends that Mr. Aishan’s detention was arbitrary insofar as
he did not have access to a lawyer during the initial stage of his detention, as he was not able
to receive legal assistance until 28 July 2021. He was allegedly brought before the prosecutor
at the Casablanca Court of First Instance on 20 July 2021 without access to legal counsel. In
its late response, the Government stated that Mr. Aishan had been represented by a lawyer
from the day he was arrested, and that the lawyer had requested permission to visit his client
on 20 July 2021.
64.
To be able to exercise his or her right to challenge his or her detention, as enshrined
in article 9 (4) of the Covenant, a detained person must generally have access to legal
assistance. Moreover, as the Working Group has previously observed, international law
regarding extradition provides procedures that must be observed by countries in arresting,
detaining and returning individuals to face criminal proceedings in another country and in
ensuring that their right to a fair trial is protected.18 The right to review by a court of the
legality of detention applies to all persons deprived of liberty and to all detention by official
action or pursuant to official authorization, including detention for extradition.19 The Human
Rights Committee has specified that, to facilitate the procedure for review of detention under
article 9 (4) of the Covenant, a detained person should have prompt and regular access to
counsel.
65.
In the present case, the Working Group notes that the Government specifies neither
when the lawyer was allowed to visit his client nor whether he was able to present arguments
on his client’s behalf before 28 July 2021, particularly during Mr. Aishan’s appearance before
the prosecutor at the Casablanca Court of First Instance, despite the specific allegations of
the source that this was not the case. The Working Group therefore finds a violation of
article 9 (4) of the Covenant.
16 A/HRC/19/57, para. 68.
17 Ibid.
18 See opinions No. 57/2013, No. 2/2015, No. 11/2018 and No. 23/2020.
19 Human Rights Committee, general comment No. 35 (2014), para. 40.
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66.
In view of the foregoing, the Working Group finds that the detention of Mr. Aishan
was arbitrary under category I.
(b)
Category III
67.
The source claims that the obstacles that Mr. Aishan faced in obtaining legal
assistance rendered his detention arbitrary under category III. As this issue has already been
addressed above by the Working Group, there is no need to consider it again here.
68.
The source also claims that the decision of the Court of Cassation of 15 December
2021, by which Mr. Aishan was detained, is not subject to ordinary appeal, which means that
it has acquired the force of res judicata. The source considers that the fact that Mr. Aishan
did not receive an effective remedy against the decision of the Court of Cassation is contrary
to the spirit of article 14 (5) of the Covenant. However, the source does not explain how this
provision would apply in circumstances in which no criminal conviction has been handed
down.
69.
In its late response, the Government maintains that Mr. Aishan’s application for
revocation of the decision constitutes an effective domestic remedy that enables the
competent judicial authorities to examine and verify all the grounds of appeal or complaints
that could be raised by persons whose extradition is sought, including those relating to
possible human rights violations in the event of extradition. The Government also submits
that Mr. Aishan was provisionally released on 12 February 2025 by a decision of the Criminal
Chamber of the Court of Cassation on the basis of this application.
70.
The Working Group considers that it does not have sufficient information to establish
a violation of article 14 (5) of the Covenant. In any case, it notes that, according to the source,
the application for revocation of the decision was lodged by a different lawyer who had not
obtained Mr. Aishan’s approval to initiate such proceedings, but that this appeal nevertheless
appears to have resulted in Mr. Aishan’s provisional release, according to the Government’s
statement.
71.
Lastly, the source submits that Mr. Aishan was subjected to treatment contrary to
article 7 of the Covenant, since he was held in solitary confinement from the beginning of
his detention. In its reply, the Government states that Mr. Aishan was placed in solitary
confinement at his request, as he did not wish to be housed with other prisoners, and that his
cell met the required conditions with respect to space, ventilation, natural light and sanitary
facilities, and was equipped with a television on which he was able to watch satellite and
Moroccan channels.
72.
The Working Group notes that, under rules 44 and 45 of the Nelson Mandela Rules,
solitary confinement must be accompanied by certain safeguards and may not exceed
15 consecutive days. It must only be used in exceptional cases as a last resort, for as short a
time as possible, subject to independent review and with the authorization of a competent
authority.
73.
The Working Group has received no information from the source to refute the
Government’s position that Mr. Aishan had himself requested to be placed in solitary
confinement. It therefore considers that no violation has been demonstrated in this respect.
74.
In the light of the foregoing, the Working Group is unable to conclude that the
violations of Mr. Aishan’s right to a fair trial were of such gravity as to give his detention an
arbitrary character under category III.
(c)
Category IV
75.
The source submits that Mr. Aishan was subjected to de facto indefinite detention
because of his migration status, without the possibility of challenging the legality of his
detention before a judicial body and, therefore, in violation of article 9 (4) of the Covenant.
In its response, the Government maintains that Mr. Aishan was not subjected to
administrative detention, but that he was arrested and temporarily detained as part of the
extradition proceedings, as he was wanted internationally by the Chinese authorities.
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11
76.
The Working Group notes that category IV applies when asylum-seekers, immigrants
or refugees are subjected to prolonged administrative custody without the possibility of
administrative or judicial review or remedy. The Working Group notes that this case does
not relate to a situation of detention involving an asylum-seeker, immigrant or refugee, but
rather to the processing of an extradition request. During this period, Mr. Aishan was able to
bring his case before the courts.
77.
The Government explains in detail that, if the Court of Cassation decides to accept
this appeal and express an opinion that the extradition request should not be approved, then
extradition cannot be approved, and the wanted person will be released unless detained for
another reason. The Working Group also notes that the arguments concerning Mr. Aishan’s
right to challenge his detention have already been considered above under category I.
Furthermore, Mr. Aishan was released on 12 February 2025.
78.
In view of the above, the Working Group does not find a violation under category IV.
3.
Disposition
79.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Yidiresi Aishan, being in contravention of article 9 of
the Universal Declaration of Human Rights and of article 9 of the International
Covenant on Civil and Political Rights, is arbitrary and falls within category I.
80.
The Working Group requests the Government of Morocco to take the steps necessary
to remedy the situation of Mr. Aishan 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.
81.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Aishan an enforceable right to
compensation and other reparations, in accordance with international law.
82.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Aishan and to take appropriate measures against those responsible for the violation of
his rights.
83.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
84.
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 compensation or other reparations have been made to Mr. Aishan;
(b)
Whether an investigation has been conducted into the violation of Mr. Aishan’s
rights and, if so, the outcome of the investigation;
(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
85.
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.
86.
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
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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.
87.
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.20
[Adopted on 4 April 2025]
20 Human Rights Council resolution 51/8, paras. 6 and 9.