MOROCCO HIGH COURT REVIEWING KEY WESTERN SAHARA CASE

“The courts should have investigated the defendants’ allegations of torture promptly and not after seven years,” said Amna Guellali, Amnesty International’s Deputy Director for the Middle East and North Africa

19 Have Been Imprisoned for 10 Years; Trial Fairness under Scrutiny

Morocco’s highest court is examining the case of 19 Sahrawi men imprisoned since 2010 after violent clashes with the police, Human Rights Watch and Amnesty International said today. A verdict is expected on November 25^th. The men are serving sentences of 20 years to life after trials that were marred by torture allegations.

The Cassation Court reviewed a lower-court ruling on November 4, four days before the tenth anniversary of the incident that sparked the case, the dismantlement by Moroccan security forces of a protest encampment in Gdeim Izik near El-Ayoun, in Moroccan-controlled Western Sahara. The defendants were convicted first in a military court in 2013 and in a civilian appeals court in 2017, for responsibility for the deaths of 11 security force members during clashes after security forces dismantled the camp. The verdicts heavily leaned on confessions that the defendants have challenged.

“The Cassation court is the last chance to put the Gdeim Izik trial back on the right track,” said Eric Goldstein, acting Middle East and North Africa director at Human Rights Watch. “Everyone – the defendants, the slain policemen and their families – deserve real justice, based on a trial that was fair and seen to be fair.”

On November 8, 2010, Moroccan security forces moved to dismantle the Gdeim Izik encampment,  about 6,500 tents that Sahrawis had erected a month before to protest their social and economic conditions in Moroccan-controlled Western Sahara. The resulting violent confrontations in the camp and in nearby El-Ayoun killed 11 Moroccan security officers, some hit by cars, others slain with knives or artisanal swords. At least one officer’s throat was cut, the written judgment of the 2017 trial stated.

Moroccan security forces repeatedly beat and abused people they detained in the immediate aftermath. Twenty-five Sahrawi men were later charged with forming a criminal gang and participating in, or being in complicity with, violence against security forces “leading to death with intent,” among other charges.

One of the men was freed in 2011, and a military court in 2013 freed two more and sentenced the remaining 22 to long prison sentences, including one defendant who was sentenced in his absence to life in prison, after he fled to Spain. The court relied almost entirely on their confessions to police, or statements implicating other defendants, to convict them, without seriously investigating claims that the defendants had signed their confessions and statements under torture. The torture allegations included severe beatings, some while suspended by the wrists and knees, sexual assault including rape with an object, and pulling out fingernails and toenails.

Torture, as well as other cruel, inhuman and degrading treatment or punishment, are forbidden under international law and Morocco’s constitution. The country’s penal code also criminalizes torture, and the code of penal procedure says that confessions obtained through “violence” or “coercion” are inadmissible in court. However, Moroccan courts have a record of relying on confessions as the main source of evidence for verdicts without investigating claims that they were obtained through torture or other forms of illegal coercion.

In 2016, the Court of Cassation voided the military court verdict against the Gdeim Izik defendants on the grounds that it was based on inconclusive evidence. The case was referred for retrial to a civilian court. Morocco adopted a law ending the trial of civilians in military courts in 2014, which did not apply retroactively to the 2013 Gdeim Izik trial.

In 2017, the Appeals Court of Salé, a city near Rabat, the capital of Morocco, found the 22 men guilty after examining new evidence presented by the prosecutor in charge of the case, and the families of the  slain security force members, acting as third party interveners who were victims of the crimes (parties civiles). However, the defense vigorously contested both the newly introduced evidence and the late addition of a third party, and withdrew from the trial to protest its “blatant unfairness,” defense lawyers told Human Rights Watch and Amnesty International.

In its verdict, the Appeals Court also used the defendants’ statements from 2010 to the police that they said had been made under torture. The court ordered forensic medical examinations of those defendants willing to undergo them seven years after their interrogations. After the examining doctors concluded that, given the passage of time, torture could neither be proven nor disproven, the court admitted the confessions into evidence, alongside the newly introduced evidence.

The UN Committee Against Torture found in 2016, in a case brought before it concerning one of the defendants, Naâma Asfari, that Morocco had failed to investigate torture allegations and that its military court had relied on a statement extracted through torture.

“The courts should have investigated the defendants’ allegations of torture promptly and not after seven years,” said Amna Guellali, Amnesty International’s Deputy Director for the Middle East and North Africa. “The failure to do so and the decision to admit the tainted confessions as evidence stains these proceedings.”

Two defendants were sentenced to time served and freed. The remaining 20, including the one who was absent from court after he fled to Spain, were sentenced to long prison sentences ranging from 20 years to life in prison.

After the civilian court issued its verdict, the 19 prisoners, who until then had been held in the same prison in Salé, were scattered in different prisons across Morocco. Several have waged repeated hunger strikes since then, alleging abuses including denial of medical care or family visits, and abusive solitary confinement regimes. All have also demanded transfers to prisons closers to their families in Western Sahara. Their current prisons are between 500 to 1,200 kilometers away from El-Ayoun, the city where most of them are from and their families live.

The authorities prevented Claude Mangin, Asfari’s wife, who is a French citizen and lives in France, from visiting him on several occasions. In November 2019, Mangin was notified by an official document that she was banned from entering Morocco as a “threat to public order.” During her visits, she has established contacts with Sahrawi self-determination activists, and has been vocal in her peaceful support of them.

The Cassation Court does not review the facts of the case, but only issues of procedure, abuses of authority, and misapplication of the law. The court, whose verdict is expected by November 25, can void a verdict, as it did in 2016, and order a retrial. Otherwise, the 2017 verdict of the appeals court of Salé will be deemed definitive, leaving no option other than a royal pardon to free the defendants before they complete their terms.

Most of the Western Sahara, a non-self-governing territory according to the United Nations, has been under Morocco's de facto control since it seized it from Spain, its former colonial administrator, in 1975. The government considers it Moroccan territory and rejects demands for a vote on self-determination that would include independence as an option. That option was included in the referendum that Morocco and the Polisario, the liberation movement for the Western Sahara, agreed to in a 1991 UN-brokered ceasefire agreement. The international community does not recognize Morocco’s de facto annexation.

Moroccan authorities systematically prevent gatherings in Western Sahara supporting Sahrawi self-determination. Morocco obstructs the work of some local human rights nongovernmental organizations, including by harassing their members and blocking legal registration processes, and on occasion beats activists and journalists in their custody and on the streets.