(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’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.”
Background
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:
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The trial of civilians before a military court, in violation of international norms;
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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;
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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
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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.
Military Trial of Civilians
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.
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.
With respect to Western Sahara:
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
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The relevant Moroccan authorities should free or promptly retry the defendants before a civilian court;
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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;
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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.
