Military Court’s Judgment in Case Based on 2010 Western Sahara Clash
While the loss of life at Gdeim Izik is deplorable,
the prosecution failed to establish after 26 months of pretrial
detention for most defendants a credible case that they were responsible
for the violence.
Sarah Leah Whitson, Middle East and North Africa director
(Rabat) – A Moroccan military court has
sentenced 25 Sahrawis to prison, including nine to life sentences,
without looking into their allegations that their confessions were
extracted under torture and other forms of coercion. The defendants
include several advocates of human rights and independence for Western
Sahara. The confessions were apparently the primary, if not the only,
evidence against them, as the court’s written judgment, released the
week of March 18, 2013, makes clear.
The Rabat military court sentenced the 25 men, all civilians, on February 17 on charges relating to violent resistance against security forces who, on November 8, 2010, dismantled a protest camp set up by Sahrawis a month earlier at Gdeim Izik, outside the city of El-Ayoun, in Western Sahara. Eleven security force agents and two Sahrawi civilians were killed in that operation and its aftermath.
“While the loss of life at Gdeim Izik is deplorable, the prosecution failed to establish after 26 months of pretrial detention for most defendants a credible case that they were responsible for the violence,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Time and again, we have seen Moroccan prosecutors appear at politically sensitive trials not with physical or witness evidence establishing the guilt of defendants, but mere confessions obtained under questionable circumstances.”
Morocco should free the convicted Sahrawis or grant them a new and fair trial before a civilian court, Human Rights Watch said. Morocco should also carry out the recent recommendation of its National Council of Human Rights to end military court prosecution of civilians in peacetime. King Mohammed VI was reported on March 2 to have “welcomed” the recommendation.
The trial opened on February 1 after 21 of the detainees had spent more than two years in court-ordered pretrial detention. The court held public hearings with scores of local and international observers in attendance and allowed the defendants for the most part to address the court without interruption. But the decision to try civilians before a military court violated fundamental international norms for a fair trial, Human Rights Watch said.
The defendants may appeal the military court verdicts only to the Court of Cassation, which examines issues of procedure, jurisdiction, abuse of power, and application of the law, but not of fact. In contrast, appeals courts in the civilian court system are permitted to review the facts.
The court apparently admitted the defendants’ confessions as evidence without investigating the defendants’ contentions that the confessions were the product of torture, Human Rights Watch said. The defendants said they were innocent of all charges. Authorities should grant the defendants a new trial by a civilian court and provisionally release them unless it establishes valid grounds for pretrial detention, Human Rights Watch said.
The military court sentenced nine defendants to life in prison, 14 to terms of between 20 and 30 years, and two to the two years of prison already served. All had faced the possibility of the death penalty. The authorities charged all of them with “forming a criminal gang,” most of them with intentional lethal attacks against police, and the others with complicity in these crimes. Two defendants faced the additional charge of “defiling or mutilating” a corpse. The defendants have appealed the verdicts.
The court’s written verdict does not detail the evidentiary basis for finding all of the defendants guilty. Since it mentions no other significant incriminating evidence, the verdict appears to rest on the defendants’ contested confessions to the police. The court rejected defense demands to investigate the defendants’ allegations that police had tortured them and forced them to sign statements they had not read. Instead, the court accepted the prosecutor’s argument that the defendants had failed to request medical examinations when they first appeared before the investigating judge and that too much time had elapsed since then.
While the defendants did not request medical examinations when they appeared before the investigating judge, most of them told him that police had tortured them in custody. Many also told him that the police had forced them to sign or affix their fingerprints to statements that they had not read. The official minutes of these hearings reflect these allegations but the case file contains no evidence that a doctor examined any of the defendants, or that the court investigated the matter, to assess the credibility of their claims.
At the trial, none of the prosecution witnesses could identify any of the defendants as responsible for violent actions. The prosecution produced weapons purportedly seized by the police in the Gdeim Izik camp but did not link them forensically to the defendants. The only link between the defendants and the weapons was their contested confessions.
The prosecution offered little, if any, evidence other than the defendants’ contested confessions to trace the deaths of the security force members to any defendant. The written judgment did not mention how individual defendants were incriminated by the video and photographic evidence shown in court, which show scenes of violence but do not appear to identify the defendants committing crimes.
In a new trial, the court should investigate the defendants’ allegations of torture and ensure, in compliance with international and Moroccan law, that no statement obtained through violence or coercion is admitted into evidence, Human Rights Watch said. If the court decides to admit into evidence a confession to the police that any of the defendants claim was extracted under torture, it should explain in its written judgment why it decided the claims of torture or improper coercion were not credible.
Morocco seized control of most of Western Sahara in 1975 as Spain withdrew from its former colony. The Polisario Front, which seeks independence for that territory, and Morocco agreed to a United Nations-backed plan in 1991 to allow a referendum on self-determination. However, that vote has not taken place and Morocco administers most of Western Sahara as if it were a part of Morocco, even though the UN does not recognize Moroccan sovereignty and classifies Western Sahara as a “non-self-governing territory.”
In October 2010, Sahrawis set up a makeshift town consisting of about 6,500 tents in the desert at Gdeim Izik, outside of El-Ayoun, to protest their social and economic conditions in Moroccan-controlled Western Sahara. Moroccan authorities entered into negotiations with the protest movement leaders.
On November 8, 2010, security forces moved in to dismantle the settlement. Some camp residents left readily while others resisted the security forces. That set off violent confrontations between Sahrawis and security forces in the camp that spilled over to the city of El-Ayoun, where many public and private buildings and vehicles were damaged. Eleven security officers and two civilians were killed, by the official count; scores more on both sides were injured. A “White Paper on the Gdeim Izik Events” issued by the government of Morocco in February 2013 stated that those killed included four agents of the Gendarmerie, four from the Auxiliary Forces, one from the Armed Forces, one from the National Security, and one from the Civilian Protection.
The authorities contend that pro-independence Sahrawi activists, in alliance with criminal elements, took over and militarized the encampment at Gdeim Izik, prevented its residents from leaving, opposed negotiations with authorities over socio-economic demands, and stockpiled stones, bottles, gas bombs, and other weapons (excluding guns) to resist the security forces who entered on November 8 to evacuate the people living in the makeshift settlement.
During and after the events, security forces arrested hundreds of Sahrawis in connection with the clashes. In addition to the 25 referred to the military court, authorities referred over 120 Sahrawis to trial before the court of El-Ayoun, a civilian court that has jurisdiction because the charges against them did not include causing the death of security agents. The court provisionally released these defendants and has not yet tried them.
A Human Rights Watch observer attended about half of the military court trial sessions. For those dates when he was absent, defense lawyers and other trial observers provided an account of the proceedings. Human Rights Watch examined the case file and interviewed several members of the defense team about the case.
The Defendants
All 25 defendants say they are innocent of the charges. The group includes several people the authorities had previously targeted and imprisoned for their peaceful advocacy of self-determination for Western Sahara and human rights, including Naâma Asfari, Mohamed Tahlil, and Ahmed Sbaï. When he testified at the trial on February 9, 2013, Asfari, who lives near Paris, contended that his activism was the real reason behind his prosecution.
Police arrested Asfari in El-Ayoun the day before they moved in to dismantle the camps and the violence began. The prosecution alleged that Asfari had organized the violent resistance in the camps, but did not claim that he directly participated in it. The authorities arrested 21 of the other defendants, including Tahlil and Sbaï, between November 8 and the end of December 2010. Two other defendants, Mohamed Khouna Babeit and Larbi Elbakai, were arrested in August 2011 and September 2012 respectively. One defendant, Hassanna Alia, was tried in absentia.
The military court sentenced nine defendants, including Sbaï and Alia, to life in prison; four, including Asfari, to 30 years; eight, including Tahlil, to 25 years; and two to 20 years (including Mohamed El-Ayoubi, whom the court provisionally freed pending the final judgment by the Court of Cassation). Two other defendants were sentenced to time served and released. Twenty-one of the defendants are in Salé Prison, serving their sentences. (Judgment 2013/313 of February 17, 2013, in criminal cases #: ع ع 10/2746/3063 and ع ع 10/2746/3063 additional from 1 to 10 and ق س 10/369/3125 additional and ق س 10/369/3125 additional 1 and 2. For a list of defendants and their sentences, please refer to “Related Materials.”)
Authorities had charged all of the defendants with forming a criminal gang, punishable by five to ten years in prison, under articles 293-294 of the penal code. Most also faced a charge of committing an act of violence against members of the security force, “when such violence leads to death, with intent to cause it,” punishable by death, under article 267 of the penal code. Authorities charged those not accused of violence against the security forces with “complicity” in such violence, which carries the same penalties as if they had directly participated in it, under penal code articles 129-130. Authorities added a charge against two defendants, Mohamed Boutanguiza and Sidi Abdallah Abhah, of “defiling or mutilating” a corpse, punishable by two to five years in prison and a fine, under penal code article 271.
Shortcomings of the Trial
The trial began on February 1, resumed on February 8, and then continued daily until February 16. The court read out its verdict at about 2 a.m. on February 17.
The presiding judge, Noureddine Zehhaf, was the sole civilian on a panel of five judges. The military court ensured that hearings, in a courtroom that could seat more than 200, were public and accessible to scores of domestic and international observers and journalists. The judges allowed the defendants, who appeared in civilian clothes and were not handcuffed, to speak without interruption, almost without exception.
However, several facets of the trial call its fairness into question:
At the opening of the trial on February 1, the defense contended that the assignment of the case to a military court contravened Morocco’s 2011 constitution, which outlaws “special courts” (juridictions d’exception) in article 127. The defense also argued that the trial violated the constitutional principle of equality among citizens, since civilians tried before military courts had a far more limited right of appeal than if tried before a civilian court. On February 8, the court rejected these arguments, saying that notwithstanding the 2011 constitution, the government had not modified the laws giving military courts jurisdiction over civilians and that these laws remained in force. Moreover, the judge said, the military court is a “specialized” rather than a “special court.”
Under Morocco’s Code of Military Justice, military courts have jurisdiction over civilians who are charged with causing harm to members of the armed forces or related forces (article 3).
The investigating judges, invoking articles 7 and 76 of this code, referred the suspects to military court for trial on December 22, 2011. Article 7 states, “If a person … is simultaneously charged with a serious crime or misdemeanor that falls under the jurisdiction of the military court and another felony or misdemeanor that falls under the jurisdiction of ordinary courts, he is first referred to the court that has jurisdiction over the offenses that are punishable with the most severe punishments; he is then referred to a court that has jurisdiction over the other offenses, if warranted. If two sentences are pronounced, the most severe one is applied.” Article 76.4 states, “If the military investigating judge classifies the offense as a felony or misdemeanor that falls under the military court’s prerogatives, he declares the referral of the defendant to [the military court].”
The referral to a military court contravenes a basic norm of international law, which requires trying civilians in civil courts. In Suleiman v. Sudan, the African Commission on Human and Peoples’ Rights affirmed that military tribunals should only “determine offences of a purely military nature committed by military staff” and “should not deal with offences which are under the purview of ordinary courts.” In addition, the principles and guidelines on the right to a fair trial and legal assistance in Africa proclaimed by the African Commission on Human and Peoples’ Rights states: “The only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.”
In Morocco, defendants before a military court are at a disadvantage because there is no appeals-level court. Their opportunity to appeal the first-degree verdict is limited to filing briefs asking for cassation by the Court of Cassation, which reviews only trial procedure, jurisdiction, abuse of power, and application of the law, whereas a defendant convicted by a civilian criminal court has a right to appeal both these and the facts, while present.
The National Council for Human Rights in February submitted to King Mohammed VI a series of recommendations for reforming the judiciary, including one on reforming military justice. Citing the 2011 constitution and international treaties, the council proposed several amendments to the code of military justice, including some that would end the military courts’ jurisdiction to try civilians in peacetime. On March 2, the king welcomed these recommendations.
Prolonged Pretrial Detention
Twenty-one of the defendants spent at least 26 months in pretrial detention in Salé Prison, 1,200 kilometers from El-Ayoun, where most of their families live. Salé is the prison nearest to the Rabat Military Court, to which their case had been referred.
Morocco’s code of criminal procedure states in article 159 that pretrial detention should be an “exceptional” measure. The code’s article 177 limits pretrial detention to two months in serious crimes, renewable for five additional two-month periods at the order of the investigating judge, for a total of 12 months.
However, that time limit applies only to the investigation phase: once the investigating judge refers the case to trial, Moroccan law does not limit the time the defendant can remain in custody; nor does it require a periodic review of the detention after the investigating judge has referred the case to trial.
The International Covenant on Civil and Political Rights (ICCPR), ratified by Morocco in 1979, in article 14 gives all defendants facing charges the right to be tried “without undue delay.” Article 9 says that anyone held in pretrial detention is entitled to be brought to trial within a reasonable time or released. Morocco’s 2011 constitution in article 120 enshrines the right to “a judgment rendered in a reasonable time frame.”
Neither international nor Moroccan law specifies a maximum time period for pretrial detention or what constitutes excessive pretrial detention. Various factors merit consideration, including the complexity of the case and the number of defendants. However, a suspect held in custody pending trial is entitled to a speedy trial or release, and has a right to periodic review by a judge, who must consider if the detention is still lawful, bearing in mind that detention before trial must be the exception rather than the rule and that proceedings toward the trial must be speedy.
In the Gdeim Izik case, the defendants’ pretrial detention exceeding two years does not appear to have been the subject of a transparent, periodic review. The defendants had no effective recourse to challenge their continued detention, and as a result the prolonged pretrial detention became arbitrary, in violation of the prohibition on arbitrary detention in the ICCPR’s article 9.
When the defendants first emerged from pre-arraignment police custody, the investigating judge, Col. Mohamed Bakkali, ordered them held pending trial, giving as a reason the gravity of the crimes of which they were accused. The investigating judge completed his investigation in November 2011, within the 12-month deadline. However, the defendants had to wait another 15 months in pretrial detention before the trial got under way.
During that period, the military court did not, as far as Human Rights Watch has been able to determine, answer written motions submitted by the defense to release the defendants pending trial. Human Rights Watch addressed a letter to the Moroccan government about this case on July 7, 2012, asking whether Moroccan law guarantees to defendants a regular and automatic judicial review of their pretrial detention and whether they would be entitled to release if they have not been tried within a certain period of time. Human Rights Watch has not received a reply.
Initially, the Rabat military court scheduled the trial to open on January 13, 2012, 14 months after the events. However, on January 12, the defense team said that it was notified by a phone call that the military court had postponed opening the trial, without setting a new date.
In August, the military court announced the trial would open on October 24. However, on October 23, the court announced another indefinite postponement, reportedly because Elbakai had been arrested in September and added as a defendant in the case, requiring additional time to review the case file.
On December 31, the defendants were informed that the trial would begin on February 1. This time it did open as scheduled and concluded two weeks later.
Court’s Failure to Investigate Torture Allegations
Morocco has ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 2006, it promulgated amendments to its penal code prohibiting torture and bringing the code’s definition of torture closer to the one found in the convention. Article 231(1) refers to:
Any act that causes severe physical or mental pain or suffering intentionally inflicted by a public agent or upon his instigation or with his express or tacit consent, upon a person for the purpose of intimidating or pressuring him or for pressuring a third person, to obtain information or a confession, to punish him for an act that he or a third party committed or is suspected of having committed, or when such pain or suffering is inflicted for any other objective based on any form of discrimination.
Morocco’s code of criminal procedure, article 293, states that any confession obtained through “violence or coercion shall not be considered as evidence” by the court. The article continues: “The perpetrator of the violence or coercion shall be subject to the penalties provided in the penal code.” This provision echoes article 15 of the Convention against Torture, which stipulates that states parties to the convention shall ensure that “any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
In its 2009 report to the United Nations Committee against Torture, Morocco stated:
On February 14, the prosecutor urged the judge to dismiss this request, contending that the defense should have made this request earlier, at the investigative phase of the case. While it appears that the defendants did not specifically ask the investigating judge to order a medical examination to check for signs of torture, most of them told him at their first substantive hearing that the police had tortured them.
In accordance with standard procedures under Moroccan law, suspects, after completing their period of pre-arraignment police custody, appear before the investigating judge for a brief hearing whose purpose is to establish their identity, inform them of the charges against them, and have them enter a plea. Nearly all of the defendants in this case appeared at the first hearing without counsel. There follows a second, longer hearing at which the investigating judge questions the defendants in more detail about the accusations and at which the defendants are ordinarily assisted by lawyers.
The court’s minutes of those hearings make clear that at this stage, nearly two years before the trial opened, at least 17 of the defendants had informed the court of their alleged torture and mistreatment, which most of them said led them to sign false confessions. The case file shows no evidence that the court conducted a medical examination on any defendant at any time to check for evidence of abuse; the defense lawyers confirmed this to Human Rights Watch.
It may be that defendants raised torture allegations in even greater detail and even earlier than indicated in the court’s minutes. For example, one defendant, Sid Ahmed Lemjayid, told the court that he had in fact told the investigating judge that police had tortured him at his very first appearance before that judge on December 28, 2010, to which the judge allegedly replied that he was not a doctor. The minutes of that hearing do not mention Lemjayid’s torture allegations.
The written judgment indicates that the court accepted the prosecutor’s argument in favor of rejecting the defense demands to investigate the torture allegations on the grounds that it was too late to conduct such an investigation. Zehhaf did not order an investigation or conduct his own but rather asked the defendants only a few short questions about the torture they said they endured.
This refusal by the trial court, however, appears ill-founded. While the timing of a torture claim may be relevant to assessing its motives and credibility, the fact that it is raised late in the process should not be a basis for summary dismissal. The duty on the Moroccan authorities, in particular the court and investigating judges, to reject evidence obtained by torture is absolute, and arises whenever they should have cause to believe that evidence was obtained by torture.
There may in fact be reasons why a defendant waits to bring a torture claim. In other cases in Morocco, defendants told Human Rights Watch they did not mention torture at their first appearance in court after police custody because the session was over before they knew it, lasting a minute or two, before a prosecutor or judge who barely looked up from the police file on his desk. Other detainees told Human Rights Watch they did not raise torture because, having just emerged from police custody, they feared reprisals by the police.
Nothing in Moroccan or in international law prevents a defendant from introducing new arguments at any stage of a trial, including at the appeals level. Nor is there a deadline under Moroccan law for exercising the right to request a medical examination to look for signs of torture, under article 88.4 of the code of criminal procedure. A judge may decline the request upon providing the reasons for refusing to order a medical examination, but nothing in the law states that the judge should or must refuse the request merely because it was filed “late.”
The United Nations special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Juan Méndez, stated in his report on Morocco published on February 28:
In his oral arguments on February 14, the prosecutor, Col. Abdelkarim Hakimi, said that the primary evidence against the defendants was confessions to the police incriminating themselves and the others. He said that police did not obtain these statements through coercion and that the defendants willingly admitted to their crimes. He contended that while the defendants were now telling the trial court about torture, they had failed to do so before the investigating judge.
The defendants signed, or put their fingerprint at the bottom of their police statements, as if to confirm the veracity of their contents. But the wording of the police statements attributed to those defendants, who told the investigating judge the police had tortured them, raises questions about the voluntary nature of those statements. The statements of Naâma Asfari and Mohamed Lamine Haddi are provided as examples.
The police statement by Asfari, who had told the investigating judge on January 12, 2011, that the police had tortured him, attributes to him declarations such as the following: that the purpose of establishing the protest camp was “to spread discord and terror, and destabilize the security of [El Ayoun] and its environs…” Toward that end, “I started soliciting and receiving funds from people involved in associations abroad, who believed that their money would be employed in charities, while the plan’s deeper purpose was to finance the plan for the camp, to organize volunteers from among the people of the area, and to recruit them in missions that would compromise public security and restrict the freedom of movement of those held inside the camp, while exposing as false the image of a calm and peaceful city.”
Haddi told the investigating judge on March 25, 2011, that police had tortured him; at another appearance on November 25, 2011, he told the judge he had put his fingerprint on his police statement while blindfolded. In his police statement Haddi is quoted as saying that Asfari and Mohamed Bourial, the purported ringleaders of the revolt, “were instigated by foreign parties whose main and sole purpose is to destabilize the security of the Sahrawi regions and harm the internal security of Morocco.” Haddi’s police statement continues:
The prosecution showed videos in court, on February 14, shot mostly from helicopters flying over the camp. They showed stone-throwing by civilians, many of them masked. In one scene, a person is seen throwing stones on a security force agent lying on the ground; in another scene, a masked person is seen urinating on a security force agent lying on the ground.
One of the defendants convicted of defiling a cadaver is Mohamed Bachir Boutanguiza. In his police statement, he admits to having thrown stones at the police and urinating on the body of one. But Boutanguiza protested his innocence before the investigating judge at his first appearance and, at his second appearance, told the judge police had tortured him into signing a statement he had not read. At the trial, on February 11, Boutanguiza repeated these allegations and said he was not the person that the video showed defiling a corpse. He asked the court to have an expert determine if he was the person seen in the video. The court did not do so. In its written judgment, the court did not indicate that the videos in its view constituted evidence against any of the defendants.
The prosecution also presented weapons in the court on February 8 that were purportedly seized at the camp, including swords but no guns. However, the prosecution presented no evidence that linked the weapons to the defendants other than “confessions” in which they admitted to their possession and use. The defense asked the court to order DNA tests on the weapons to see if this linked them to the defendants. The court did not do so.
Not a single police agent testified during the trial. The court rejected defense motions to summon police officers who recorded the defendants’ contested statements.
Furthermore, no autopsy report was introduced at the trial to elucidate how and when each of the security force agents had died. The court did not establish that each of the deceased police agents died as a result of protester violence, and did not establish which of the defendants caused the death of specific law-enforcement agents.
Recommendations
The Rabat military court sentenced the 25 men, all civilians, on February 17 on charges relating to violent resistance against security forces who, on November 8, 2010, dismantled a protest camp set up by Sahrawis a month earlier at Gdeim Izik, outside the city of El-Ayoun, in Western Sahara. Eleven security force agents and two Sahrawi civilians were killed in that operation and its aftermath.
“While the loss of life at Gdeim Izik is deplorable, the prosecution failed to establish after 26 months of pretrial detention for most defendants a credible case that they were responsible for the violence,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Time and again, we have seen Moroccan prosecutors appear at politically sensitive trials not with physical or witness evidence establishing the guilt of defendants, but mere confessions obtained under questionable circumstances.”
Morocco should free the convicted Sahrawis or grant them a new and fair trial before a civilian court, Human Rights Watch said. Morocco should also carry out the recent recommendation of its National Council of Human Rights to end military court prosecution of civilians in peacetime. King Mohammed VI was reported on March 2 to have “welcomed” the recommendation.
The trial opened on February 1 after 21 of the detainees had spent more than two years in court-ordered pretrial detention. The court held public hearings with scores of local and international observers in attendance and allowed the defendants for the most part to address the court without interruption. But the decision to try civilians before a military court violated fundamental international norms for a fair trial, Human Rights Watch said.
The defendants may appeal the military court verdicts only to the Court of Cassation, which examines issues of procedure, jurisdiction, abuse of power, and application of the law, but not of fact. In contrast, appeals courts in the civilian court system are permitted to review the facts.
The court apparently admitted the defendants’ confessions as evidence without investigating the defendants’ contentions that the confessions were the product of torture, Human Rights Watch said. The defendants said they were innocent of all charges. Authorities should grant the defendants a new trial by a civilian court and provisionally release them unless it establishes valid grounds for pretrial detention, Human Rights Watch said.
The military court sentenced nine defendants to life in prison, 14 to terms of between 20 and 30 years, and two to the two years of prison already served. All had faced the possibility of the death penalty. The authorities charged all of them with “forming a criminal gang,” most of them with intentional lethal attacks against police, and the others with complicity in these crimes. Two defendants faced the additional charge of “defiling or mutilating” a corpse. The defendants have appealed the verdicts.
The court’s written verdict does not detail the evidentiary basis for finding all of the defendants guilty. Since it mentions no other significant incriminating evidence, the verdict appears to rest on the defendants’ contested confessions to the police. The court rejected defense demands to investigate the defendants’ allegations that police had tortured them and forced them to sign statements they had not read. Instead, the court accepted the prosecutor’s argument that the defendants had failed to request medical examinations when they first appeared before the investigating judge and that too much time had elapsed since then.
While the defendants did not request medical examinations when they appeared before the investigating judge, most of them told him that police had tortured them in custody. Many also told him that the police had forced them to sign or affix their fingerprints to statements that they had not read. The official minutes of these hearings reflect these allegations but the case file contains no evidence that a doctor examined any of the defendants, or that the court investigated the matter, to assess the credibility of their claims.
At the trial, none of the prosecution witnesses could identify any of the defendants as responsible for violent actions. The prosecution produced weapons purportedly seized by the police in the Gdeim Izik camp but did not link them forensically to the defendants. The only link between the defendants and the weapons was their contested confessions.
The prosecution offered little, if any, evidence other than the defendants’ contested confessions to trace the deaths of the security force members to any defendant. The written judgment did not mention how individual defendants were incriminated by the video and photographic evidence shown in court, which show scenes of violence but do not appear to identify the defendants committing crimes.
In a new trial, the court should investigate the defendants’ allegations of torture and ensure, in compliance with international and Moroccan law, that no statement obtained through violence or coercion is admitted into evidence, Human Rights Watch said. If the court decides to admit into evidence a confession to the police that any of the defendants claim was extracted under torture, it should explain in its written judgment why it decided the claims of torture or improper coercion were not credible.
“Morocco’s judiciary undermined the credibility of its own trial by
trying these civilian defendants in military courts, flouting
international norms and denying them a full right to appeal,” Whitson
said. “Even Morocco’s human rights commission is recommending that
military courts should not try civilians.”
BackgroundMorocco seized control of most of Western Sahara in 1975 as Spain withdrew from its former colony. The Polisario Front, which seeks independence for that territory, and Morocco agreed to a United Nations-backed plan in 1991 to allow a referendum on self-determination. However, that vote has not taken place and Morocco administers most of Western Sahara as if it were a part of Morocco, even though the UN does not recognize Moroccan sovereignty and classifies Western Sahara as a “non-self-governing territory.”
In October 2010, Sahrawis set up a makeshift town consisting of about 6,500 tents in the desert at Gdeim Izik, outside of El-Ayoun, to protest their social and economic conditions in Moroccan-controlled Western Sahara. Moroccan authorities entered into negotiations with the protest movement leaders.
On November 8, 2010, security forces moved in to dismantle the settlement. Some camp residents left readily while others resisted the security forces. That set off violent confrontations between Sahrawis and security forces in the camp that spilled over to the city of El-Ayoun, where many public and private buildings and vehicles were damaged. Eleven security officers and two civilians were killed, by the official count; scores more on both sides were injured. A “White Paper on the Gdeim Izik Events” issued by the government of Morocco in February 2013 stated that those killed included four agents of the Gendarmerie, four from the Auxiliary Forces, one from the Armed Forces, one from the National Security, and one from the Civilian Protection.
The authorities contend that pro-independence Sahrawi activists, in alliance with criminal elements, took over and militarized the encampment at Gdeim Izik, prevented its residents from leaving, opposed negotiations with authorities over socio-economic demands, and stockpiled stones, bottles, gas bombs, and other weapons (excluding guns) to resist the security forces who entered on November 8 to evacuate the people living in the makeshift settlement.
During and after the events, security forces arrested hundreds of Sahrawis in connection with the clashes. In addition to the 25 referred to the military court, authorities referred over 120 Sahrawis to trial before the court of El-Ayoun, a civilian court that has jurisdiction because the charges against them did not include causing the death of security agents. The court provisionally released these defendants and has not yet tried them.
A Human Rights Watch observer attended about half of the military court trial sessions. For those dates when he was absent, defense lawyers and other trial observers provided an account of the proceedings. Human Rights Watch examined the case file and interviewed several members of the defense team about the case.
The Defendants
All 25 defendants say they are innocent of the charges. The group includes several people the authorities had previously targeted and imprisoned for their peaceful advocacy of self-determination for Western Sahara and human rights, including Naâma Asfari, Mohamed Tahlil, and Ahmed Sbaï. When he testified at the trial on February 9, 2013, Asfari, who lives near Paris, contended that his activism was the real reason behind his prosecution.
Police arrested Asfari in El-Ayoun the day before they moved in to dismantle the camps and the violence began. The prosecution alleged that Asfari had organized the violent resistance in the camps, but did not claim that he directly participated in it. The authorities arrested 21 of the other defendants, including Tahlil and Sbaï, between November 8 and the end of December 2010. Two other defendants, Mohamed Khouna Babeit and Larbi Elbakai, were arrested in August 2011 and September 2012 respectively. One defendant, Hassanna Alia, was tried in absentia.
The military court sentenced nine defendants, including Sbaï and Alia, to life in prison; four, including Asfari, to 30 years; eight, including Tahlil, to 25 years; and two to 20 years (including Mohamed El-Ayoubi, whom the court provisionally freed pending the final judgment by the Court of Cassation). Two other defendants were sentenced to time served and released. Twenty-one of the defendants are in Salé Prison, serving their sentences. (Judgment 2013/313 of February 17, 2013, in criminal cases #: ع ع 10/2746/3063 and ع ع 10/2746/3063 additional from 1 to 10 and ق س 10/369/3125 additional and ق س 10/369/3125 additional 1 and 2. For a list of defendants and their sentences, please refer to “Related Materials.”)
Authorities had charged all of the defendants with forming a criminal gang, punishable by five to ten years in prison, under articles 293-294 of the penal code. Most also faced a charge of committing an act of violence against members of the security force, “when such violence leads to death, with intent to cause it,” punishable by death, under article 267 of the penal code. Authorities charged those not accused of violence against the security forces with “complicity” in such violence, which carries the same penalties as if they had directly participated in it, under penal code articles 129-130. Authorities added a charge against two defendants, Mohamed Boutanguiza and Sidi Abdallah Abhah, of “defiling or mutilating” a corpse, punishable by two to five years in prison and a fine, under penal code article 271.
Shortcomings of the Trial
The trial began on February 1, resumed on February 8, and then continued daily until February 16. The court read out its verdict at about 2 a.m. on February 17.
The presiding judge, Noureddine Zehhaf, was the sole civilian on a panel of five judges. The military court ensured that hearings, in a courtroom that could seat more than 200, were public and accessible to scores of domestic and international observers and journalists. The judges allowed the defendants, who appeared in civilian clothes and were not handcuffed, to speak without interruption, almost without exception.
However, several facets of the trial call its fairness into question:
- The trial of civilians before a military court, in violation of international norms;
- The prolonged period of pretrial detention – 26 months for most defendants – without periodic reviews and written rulings by the court justifying its refusal to grant their provisional release;
- The court’s failure to probe the allegations that the defendants made at an early stage of the proceedings that the police had tortured or coerced them into signing false statements; and
- The court’s apparent reliance on the defendants’ contested statements to the police as the main – if not sole – basis on which to convict them.
At the opening of the trial on February 1, the defense contended that the assignment of the case to a military court contravened Morocco’s 2011 constitution, which outlaws “special courts” (juridictions d’exception) in article 127. The defense also argued that the trial violated the constitutional principle of equality among citizens, since civilians tried before military courts had a far more limited right of appeal than if tried before a civilian court. On February 8, the court rejected these arguments, saying that notwithstanding the 2011 constitution, the government had not modified the laws giving military courts jurisdiction over civilians and that these laws remained in force. Moreover, the judge said, the military court is a “specialized” rather than a “special court.”
Under Morocco’s Code of Military Justice, military courts have jurisdiction over civilians who are charged with causing harm to members of the armed forces or related forces (article 3).
The investigating judges, invoking articles 7 and 76 of this code, referred the suspects to military court for trial on December 22, 2011. Article 7 states, “If a person … is simultaneously charged with a serious crime or misdemeanor that falls under the jurisdiction of the military court and another felony or misdemeanor that falls under the jurisdiction of ordinary courts, he is first referred to the court that has jurisdiction over the offenses that are punishable with the most severe punishments; he is then referred to a court that has jurisdiction over the other offenses, if warranted. If two sentences are pronounced, the most severe one is applied.” Article 76.4 states, “If the military investigating judge classifies the offense as a felony or misdemeanor that falls under the military court’s prerogatives, he declares the referral of the defendant to [the military court].”
The referral to a military court contravenes a basic norm of international law, which requires trying civilians in civil courts. In Suleiman v. Sudan, the African Commission on Human and Peoples’ Rights affirmed that military tribunals should only “determine offences of a purely military nature committed by military staff” and “should not deal with offences which are under the purview of ordinary courts.” In addition, the principles and guidelines on the right to a fair trial and legal assistance in Africa proclaimed by the African Commission on Human and Peoples’ Rights states: “The only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.”
In Morocco, defendants before a military court are at a disadvantage because there is no appeals-level court. Their opportunity to appeal the first-degree verdict is limited to filing briefs asking for cassation by the Court of Cassation, which reviews only trial procedure, jurisdiction, abuse of power, and application of the law, whereas a defendant convicted by a civilian criminal court has a right to appeal both these and the facts, while present.
The National Council for Human Rights in February submitted to King Mohammed VI a series of recommendations for reforming the judiciary, including one on reforming military justice. Citing the 2011 constitution and international treaties, the council proposed several amendments to the code of military justice, including some that would end the military courts’ jurisdiction to try civilians in peacetime. On March 2, the king welcomed these recommendations.
Prolonged Pretrial Detention
Twenty-one of the defendants spent at least 26 months in pretrial detention in Salé Prison, 1,200 kilometers from El-Ayoun, where most of their families live. Salé is the prison nearest to the Rabat Military Court, to which their case had been referred.
Morocco’s code of criminal procedure states in article 159 that pretrial detention should be an “exceptional” measure. The code’s article 177 limits pretrial detention to two months in serious crimes, renewable for five additional two-month periods at the order of the investigating judge, for a total of 12 months.
However, that time limit applies only to the investigation phase: once the investigating judge refers the case to trial, Moroccan law does not limit the time the defendant can remain in custody; nor does it require a periodic review of the detention after the investigating judge has referred the case to trial.
The International Covenant on Civil and Political Rights (ICCPR), ratified by Morocco in 1979, in article 14 gives all defendants facing charges the right to be tried “without undue delay.” Article 9 says that anyone held in pretrial detention is entitled to be brought to trial within a reasonable time or released. Morocco’s 2011 constitution in article 120 enshrines the right to “a judgment rendered in a reasonable time frame.”
Neither international nor Moroccan law specifies a maximum time period for pretrial detention or what constitutes excessive pretrial detention. Various factors merit consideration, including the complexity of the case and the number of defendants. However, a suspect held in custody pending trial is entitled to a speedy trial or release, and has a right to periodic review by a judge, who must consider if the detention is still lawful, bearing in mind that detention before trial must be the exception rather than the rule and that proceedings toward the trial must be speedy.
In the Gdeim Izik case, the defendants’ pretrial detention exceeding two years does not appear to have been the subject of a transparent, periodic review. The defendants had no effective recourse to challenge their continued detention, and as a result the prolonged pretrial detention became arbitrary, in violation of the prohibition on arbitrary detention in the ICCPR’s article 9.
When the defendants first emerged from pre-arraignment police custody, the investigating judge, Col. Mohamed Bakkali, ordered them held pending trial, giving as a reason the gravity of the crimes of which they were accused. The investigating judge completed his investigation in November 2011, within the 12-month deadline. However, the defendants had to wait another 15 months in pretrial detention before the trial got under way.
During that period, the military court did not, as far as Human Rights Watch has been able to determine, answer written motions submitted by the defense to release the defendants pending trial. Human Rights Watch addressed a letter to the Moroccan government about this case on July 7, 2012, asking whether Moroccan law guarantees to defendants a regular and automatic judicial review of their pretrial detention and whether they would be entitled to release if they have not been tried within a certain period of time. Human Rights Watch has not received a reply.
Initially, the Rabat military court scheduled the trial to open on January 13, 2012, 14 months after the events. However, on January 12, the defense team said that it was notified by a phone call that the military court had postponed opening the trial, without setting a new date.
In August, the military court announced the trial would open on October 24. However, on October 23, the court announced another indefinite postponement, reportedly because Elbakai had been arrested in September and added as a defendant in the case, requiring additional time to review the case file.
On December 31, the defendants were informed that the trial would begin on February 1. This time it did open as scheduled and concluded two weeks later.
Court’s Failure to Investigate Torture Allegations
Morocco has ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 2006, it promulgated amendments to its penal code prohibiting torture and bringing the code’s definition of torture closer to the one found in the convention. Article 231(1) refers to:
Any act that causes severe physical or mental pain or suffering intentionally inflicted by a public agent or upon his instigation or with his express or tacit consent, upon a person for the purpose of intimidating or pressuring him or for pressuring a third person, to obtain information or a confession, to punish him for an act that he or a third party committed or is suspected of having committed, or when such pain or suffering is inflicted for any other objective based on any form of discrimination.
Morocco’s code of criminal procedure, article 293, states that any confession obtained through “violence or coercion shall not be considered as evidence” by the court. The article continues: “The perpetrator of the violence or coercion shall be subject to the penalties provided in the penal code.” This provision echoes article 15 of the Convention against Torture, which stipulates that states parties to the convention shall ensure that “any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
In its 2009 report to the United Nations Committee against Torture, Morocco stated:
A confession obtained through the use of violence, coercion or torture has no value. Any confession where a causal link between obtaining it and the use of such methods has been established must be excluded. A court must look for such a link to reach a decision on the inadmissibility of the confession… [T]his is intended to protect the public interest and not the interest of the individual only. Legislation goes even further by incriminating those who resort to coercion to obtain confessions as a deterrent to committing acts violating human rights.At the Gdeim Izik trial, when given the opportunity to speak, one defendant after another issued a disclaimer for the statement he had made to the police. The defendants said the security forces had tortured them and forced them to sign statements they had not read. They said they discovered later that the statements did not reflect what they had actually had said. At the opening of the trial, the defense asked the court to investigate these allegations.
On February 14, the prosecutor urged the judge to dismiss this request, contending that the defense should have made this request earlier, at the investigative phase of the case. While it appears that the defendants did not specifically ask the investigating judge to order a medical examination to check for signs of torture, most of them told him at their first substantive hearing that the police had tortured them.
In accordance with standard procedures under Moroccan law, suspects, after completing their period of pre-arraignment police custody, appear before the investigating judge for a brief hearing whose purpose is to establish their identity, inform them of the charges against them, and have them enter a plea. Nearly all of the defendants in this case appeared at the first hearing without counsel. There follows a second, longer hearing at which the investigating judge questions the defendants in more detail about the accusations and at which the defendants are ordinarily assisted by lawyers.
The court’s minutes of those hearings make clear that at this stage, nearly two years before the trial opened, at least 17 of the defendants had informed the court of their alleged torture and mistreatment, which most of them said led them to sign false confessions. The case file shows no evidence that the court conducted a medical examination on any defendant at any time to check for evidence of abuse; the defense lawyers confirmed this to Human Rights Watch.
It may be that defendants raised torture allegations in even greater detail and even earlier than indicated in the court’s minutes. For example, one defendant, Sid Ahmed Lemjayid, told the court that he had in fact told the investigating judge that police had tortured him at his very first appearance before that judge on December 28, 2010, to which the judge allegedly replied that he was not a doctor. The minutes of that hearing do not mention Lemjayid’s torture allegations.
The written judgment indicates that the court accepted the prosecutor’s argument in favor of rejecting the defense demands to investigate the torture allegations on the grounds that it was too late to conduct such an investigation. Zehhaf did not order an investigation or conduct his own but rather asked the defendants only a few short questions about the torture they said they endured.
This refusal by the trial court, however, appears ill-founded. While the timing of a torture claim may be relevant to assessing its motives and credibility, the fact that it is raised late in the process should not be a basis for summary dismissal. The duty on the Moroccan authorities, in particular the court and investigating judges, to reject evidence obtained by torture is absolute, and arises whenever they should have cause to believe that evidence was obtained by torture.
There may in fact be reasons why a defendant waits to bring a torture claim. In other cases in Morocco, defendants told Human Rights Watch they did not mention torture at their first appearance in court after police custody because the session was over before they knew it, lasting a minute or two, before a prosecutor or judge who barely looked up from the police file on his desk. Other detainees told Human Rights Watch they did not raise torture because, having just emerged from police custody, they feared reprisals by the police.
Nothing in Moroccan or in international law prevents a defendant from introducing new arguments at any stage of a trial, including at the appeals level. Nor is there a deadline under Moroccan law for exercising the right to request a medical examination to look for signs of torture, under article 88.4 of the code of criminal procedure. A judge may decline the request upon providing the reasons for refusing to order a medical examination, but nothing in the law states that the judge should or must refuse the request merely because it was filed “late.”
The United Nations special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Juan Méndez, stated in his report on Morocco published on February 28:
The special rapporteur learned that courts and prosecutors do not comply with their obligation to initiate an ex officio investigation whenever there are reasonable grounds to believe that a confession has been obtained through the use of torture and ill-treatment, or to order an immediate and independent medical examination (see articles 74 (8) and 135 (5) of the code of criminal procedure) if they suspect that the detainee has been subjected to ill-treatment. It appears that judges are willing to admit confessions without attempting to corroborate the confession with other evidence, even if the person recants before the judge and claims to have been tortured. In addition, testimonies received indicate that many cases that are submitted to the courts are based solely on confessions by the accused, in the absence of any material evidence. This creates conditions that encourage torture and ill-treatment of suspects.With respect to Western Sahara:
The special rapporteur was informed that, often, when defendants try to prove their injuries in court, the judge reacts by questioning the credibility of defendants who did not raise the matter at the earliest opportunity – emerging from police custody and appearing for the first time before the prosecutor or the investigating judge.
The special rapporteur found that torture and ill-treatment were used to extract confessions and that protesters were subjected to excessive use of force by Moroccan law-enforcement officials. The testimonies received indicate that members of the Sahrawi population are specifically, but not exclusively, victims of such violations.Convictions Based on Contested Confessions
In his oral arguments on February 14, the prosecutor, Col. Abdelkarim Hakimi, said that the primary evidence against the defendants was confessions to the police incriminating themselves and the others. He said that police did not obtain these statements through coercion and that the defendants willingly admitted to their crimes. He contended that while the defendants were now telling the trial court about torture, they had failed to do so before the investigating judge.
The defendants signed, or put their fingerprint at the bottom of their police statements, as if to confirm the veracity of their contents. But the wording of the police statements attributed to those defendants, who told the investigating judge the police had tortured them, raises questions about the voluntary nature of those statements. The statements of Naâma Asfari and Mohamed Lamine Haddi are provided as examples.
The police statement by Asfari, who had told the investigating judge on January 12, 2011, that the police had tortured him, attributes to him declarations such as the following: that the purpose of establishing the protest camp was “to spread discord and terror, and destabilize the security of [El Ayoun] and its environs…” Toward that end, “I started soliciting and receiving funds from people involved in associations abroad, who believed that their money would be employed in charities, while the plan’s deeper purpose was to finance the plan for the camp, to organize volunteers from among the people of the area, and to recruit them in missions that would compromise public security and restrict the freedom of movement of those held inside the camp, while exposing as false the image of a calm and peaceful city.”
Haddi told the investigating judge on March 25, 2011, that police had tortured him; at another appearance on November 25, 2011, he told the judge he had put his fingerprint on his police statement while blindfolded. In his police statement Haddi is quoted as saying that Asfari and Mohamed Bourial, the purported ringleaders of the revolt, “were instigated by foreign parties whose main and sole purpose is to destabilize the security of the Sahrawi regions and harm the internal security of Morocco.” Haddi’s police statement continues:
The local authorities made commendable efforts to peacefully disperse the camp, having acquiesced to the citizens’ demands and enabled a portion of them to realize their aspirations. Consequently, many citizens declared their wish to leave the camp. Faced with this problem, Asfari and his aides [gave] strict orders to prevent all citizens from leaving the camp, through intimidation or even detention if need be.The prosecution offered little evidence beyond the defendants’ police statements; the court’s written judgment makes clear that the guilty verdicts rest on them. The court heard only one prosecution witness, Redouane Lahlaoui, a firefighter, who testified on February 13 that on the day of the clashes, he had helped evacuate injured security agents. He said that his shoulder was injured and that a group of civilians detained him for a while. However, he told the court that he could not recognize any of the defendants.
The prosecution showed videos in court, on February 14, shot mostly from helicopters flying over the camp. They showed stone-throwing by civilians, many of them masked. In one scene, a person is seen throwing stones on a security force agent lying on the ground; in another scene, a masked person is seen urinating on a security force agent lying on the ground.
One of the defendants convicted of defiling a cadaver is Mohamed Bachir Boutanguiza. In his police statement, he admits to having thrown stones at the police and urinating on the body of one. But Boutanguiza protested his innocence before the investigating judge at his first appearance and, at his second appearance, told the judge police had tortured him into signing a statement he had not read. At the trial, on February 11, Boutanguiza repeated these allegations and said he was not the person that the video showed defiling a corpse. He asked the court to have an expert determine if he was the person seen in the video. The court did not do so. In its written judgment, the court did not indicate that the videos in its view constituted evidence against any of the defendants.
The prosecution also presented weapons in the court on February 8 that were purportedly seized at the camp, including swords but no guns. However, the prosecution presented no evidence that linked the weapons to the defendants other than “confessions” in which they admitted to their possession and use. The defense asked the court to order DNA tests on the weapons to see if this linked them to the defendants. The court did not do so.
Not a single police agent testified during the trial. The court rejected defense motions to summon police officers who recorded the defendants’ contested statements.
Furthermore, no autopsy report was introduced at the trial to elucidate how and when each of the security force agents had died. The court did not establish that each of the deceased police agents died as a result of protester violence, and did not establish which of the defendants caused the death of specific law-enforcement agents.
Recommendations
- The relevant Moroccan authorities should free or promptly retry the defendants before a civilian court;
- Ahead of retrials, the assumption should be that all defendants will be at liberty until their trial. Any individual defendant the prosecuting authorities wish to detain should be entitled to a prompt hearing before a judge to rule on the legality of their detention, with the presumption being for liberty. A judicial decision to detain the defendant pending trial should be based on valid grounds, such as that the defendant is dangerous or is likely to repeat his offenses, tamper with evidence, or take flight;
- When retrying the defendants, the court should examine their allegations of torture and ensure, in compliance with international and Moroccan law, that no statement obtained through violence or coercion is admitted into evidence. The court should conduct investigations even if the physical traces of possible torture may have faded. The investigations should adhere to international standards for investigation of individual complaints of torture, notably those found in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (“the Istanbul Protocol”);
- If the court decides to admit into evidence a police statement that the defendant claims was extracted under torture, it should explain in its written judgment why it decided the claims of torture or improper coercion were not credible;
- Lawmakers should carry out the recommendation of the UN special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment in his February 28 report published on Morocco, to amend the code of criminal procedure to indicate that where there is an allegation of torture or ill treatment, the burden of proof lies on the prosecution to prove that any confession made has not been obtained by unlawful means; and
- Lawmakers should amend the Code of Military Justice so that civilian defendants shall always be tried by civilian courts rather than military courts, as recently recommended by Morocco’s National Council of Human Rights.
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