September 19, 2009
Dear Mr. Minister,
Human Rights Watch, the international human rights monitoring organization, and Adala, the Rabat-based organization promoting the right to a fair trial, note with satisfaction that King Mohammed VI devoted his August 20 speech, delivered on the occasion of the Anniversary of the Revolution of the King and the People, to carrying out a "profound and comprehensive" reform of Morocco's judiciary. We were also pleased that "consolidating the guarantees of judicial independence" was the first of the six priorities that the King enumerated as part of this reform project.
As part of its efforts to promote a justice in Morocco that guarantees defendants their rights to a fair trial, Human Rights Watch has monitored a number of trials in the country over the years and described them in its reports and communiqués.
The purpose of this letter is to inform you that, most recently, Human Rights Watch and Adala followed the trial of 35 defendants in the so-called "Belliraj affair" before the Appeals Court of Rabat in Salé, the court of first instance for terrorism trials, pursuant to the 2003 Counter-terrorism law. That trial resulted on July 28 in the conviction of all the defendants on charges that they had formed a terrorist organization with a political façade, whose purpose was to destabilize and topple the Moroccan state through terrorist operations, and whose financing came from criminal activities such as armed robberies. The court based its judgment primarily on the confessions obtained from the detainees while in police custody.
In this letter we summarize the concerns we have about the fairness of the proceedings and invite your ministry to respond. We will reflect any pertinent information or observations that we receive from you or other Moroccan officials by October 10, 2009 in the report we plan to issue about this trial.
- (1) Medical examinations for defendants alleging torture and investigations into their complaints
According to their testimony at trial, the majority of defendants in this case claimed that police had tortured them during interrogation. Most of the defendants repudiated the contents of their police statements (procès verbaux) when they appeared before the investigating judge, claiming they had been obtained under duress; almost all of them repudiated key elements of their police statements and proclaimed their innocence before the trial judge.
Their lawyers petitioned both the investigating judge and the trial judge to order an investigation into the alleged falsification of the police procès verbaux; they also petitioned for medical examinations to verify the defendants' claims of torture and to open investigations into those complaints.
Moroccan law criminalizes torture by state agents (article 231 of the Penal Code). It prohibits any statement obtained under "violence or coercion" from being admitted into evidence in court and states that the perpetrators of such violence or coercion are subject to the punishments stipulated in the Penal Code (Article 293 of the Code of Penal Procedure, CPP). It also states that if a defendant or his lawyer requests a medical examination, the investigating judge cannot refuse the request except if he provides a reason for refusing (Article 88(4) of the CPP).
When it comes to misdemeanors and infractions, Morocco's CPP states that police procès verbaux are to be deemed trustworthy as evidence "unless the contrary is proven" (article 290)". That is not the case when defendants stand accused of offenses punishable by five or more years in prison, as most were in this trial. For charges of such gravity, the CPP directs the court to consider a police procès verbal as one piece of evidence among others, and to make no presumption as to its truthfulness (article 291 of the CPP). When there are reasons to question the truthfulness of a police statement, such as when torture is alleged, the court must diligently investigate evidence that is relevant to determining its truthfulness before deciding to admit it into evidence.
Article 15 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment specifically requires all state parties, including Morocco, to "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." The Committee Against Torture has stated this prohibition must be "observed in all circumstances" and that the absolute prohibition also applies to evidence obtained as a result of ill-treatment.
Several defendants in the "Belliraj trial" also alleged to the court that the security services had arrested them well before the date that appears in the police log and held them beyond the 12-day time limit that Moroccan law places on garde-à-vue detention in terrorism cases. To take three examples, relatives of defendants Abdelkader Belliraj, Ahmed Khouchia and Mokhtar Loqman told us police had arrested the men on January 18, January 27, and February 2, 2008 respectively, and held them one month, three weeks, and two-and-a-half weeks, respectively, in incommunicado detention. According to relatives of the three men, authorities refused to disclose to the families the whereabouts of the defendants during this entire period.
Despite the defendants' claims of torture, their demands for medical examinations, and their claims that police had held them longer than the law permits and falsified their arrest dates while failing to inform their families, not a single defendant in this case, to the best of our knowledge, received a court-ordered medical examination to establish the veracity of their complaints of torture. Nor does it appear that the court opened any investigations into their allegations of torture.
- (2) Access of lawyers to copies of the case files during the investigative phase of the proceedings.
International law, including the International Covenant on Civil and Political Rights, requires anyone accused of a crime to have "adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing." The UN Human Rights Committee has stated that "facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel."
In nearly all criminal cases in Morocco, it is common practice for judges to allow defense lawyers to photocopy the information in the relevant files during the investigative phase, even though the relevant article of the CPP (article 139) does not specify this as a right.
In this highly complex case, involving the statements of 35 defendants, all of them made during pretrial detention, it was particularly important for lawyers to be able to photocopy their clients' files to allow the defendants to review the statements attributed by the police to themselves and to their co-defendants , so that they could better prepare their responses to the questions about such statements that the investigative judge would ask them.
According to information obtained by Human Rights Watch, however, the investigative judge in this case refused to allow counsel for the defendants to photocopy any of the information contained in defendants' case files, including police statements. We are not aware of any good reason why such access should have been refused.
Court records show that some defendants agreed to respond to the investigative judge's questioning even though they had not yet seen the case files. However, at least six defendants, known as the "political defendants" due to their status as public figures in Morocco's political life - Moustapha Mou'tassim, Mohamed Merouani, Mohamed Amin Regala, Al-Abadelah Maelainin, and Abdelhafidh Sriti -- refused to submit to the judge's questioning unless he allowed them to obtain copies of their files. The investigative judge continued to refuse to allow them to photocopy this information and ended up submitting their police statements to the trial court without appending to them any testimony about those statements by the defendants.
- (3) Allegations of falsified police statements.
The six political defendants claimed that while in custody, police presented them with their written statements for their review and signature. After they read and signed them, the police returned and presented each of them with a stack of documents that they said were multiple copies of the statements they had just signed, and asked them to sign each one. These defendants later told their lawyers that the stack contained as many as 20 copies to sign. The defendants signed them without carefully reading each copy. They did so because the harsh conditions of their detention had left them feeling weak and weary, they explained later.
As noted above in (2) above, the six political defendants stated that they did not see the statements in their case files until after the investigative phase of the trial was completed. When the six saw the versions of their police statements in the case files, all of them repudiated those statements, claiming that these were not the statements they had read and signed, but rather ones whose contents had been altered in incriminating ways.
The defense team raised this allegation of fraud at the trial and pointed out factual inconsistencies arising out of the repudiated statements of the six found in the case files. This allegation of fraud further calls into question the refusal of the investigative judge to make these and other case materials available to the defendants before summoning them for questioning. The defendants maintain that if they had been permitted to read the statements in their case files before appearing before the judge, they could have flagged this alleged fraud at an early phase and made statements to the investigative judge that corrected the contents of their contested police statements.
To the best of our knowledge, the trial judge ordered no investigation into the ruse alleged by the six political defendants whereby the police falsified their police statements.
- (4) Alleged mishandling of physical evidence
According to our understanding, the only evidence against the defendants in this trial beyond their police statements are two caches of arms allegedly found by police in the regions of Nador and Casablanca, which were linked to the defendants by their police statements.
At trial, the defendants repudiated those statements to the police and denied any links to these weapons. Belliraj for his part stated that he had known of their existence but that they were destined for Islamists in Algeria. Earlier, before the investigating judge, Belliraj had confessed to a role in smuggling the weapons into Morocco during the 1990s. But at the trial he repudiated this confession, saying he had made it only after the police had tortured him during weeks of incommunicado detention and at a session in the investigating judge's chambers in which one of his alleged police torturers was present while the judge was questioning him.
Because the defendants were contesting the prosecution's efforts to link them to these weapons caches, the handling of this material evidence against them is a matter of concern. The CPP in article 59 states in paragraphs 5-6-7 that police must place physical
evidence they seize in an envelope or pouch and seal it in front of the persons present at the search. They must prepare a report (procès verbal) describing the seizure operation and all of the items seized. The sealed container may be opened only in the presence of the defendant and his lawyer (CPP article 104, paragraph 4).
However, according to what we were told by many defense lawyers, among them Abderrahim Jamaï, Abderrahmane Benammeur, Mohamed Sebbar, during the trial, in the session devoted to the material evidence, the weapons were not unsealed in the presence of the defendants; rather, the court simply displayed them on a table in an unsealed state. The lawyers protested this apparent irregularity to the judge. They also asked the judge to summon for questioning a weapons expert who could answer questions about the weapons that were found, and their possible relation to specific crimes mentioned in the charge sheet, but the judge refused.
The foregoing includes some of our main concerns about the fairness of the "Belliraj trial," which resulted in a guilty verdict in the first instance for all the defendants, and prison sentences for them ranging up to a life term. The trial will now go to the appeals level.
Dear Mr. Minister,
As mentioned before, we will reflect any pertinent information or observations that we receive from you or other Moroccan officials by October 10, 2009 in the report we plan to issue. For this purpose we would be grateful to receive answers to the following questions :
- (1) At what stage of the judicial process did the court:
- (a) hear claims by defendants that the police had subjected them to torture or other forms of illegal mistreatment during their garde-à-vue detention?
- (b) receive requests from the defense to carry out medical examinations of the defendants to check for evidence of torture or other mistreatment?
- (c) receive requests from the defense to open investigations into allegations by defendants of torture?
- (2) Did the court order any medical examinations of the defendants in response to their allegations of torture or illegal ill-treatment while in garde-a-vue? If so, what were the findings of those medical examinations? If not, what were the reasons provided by the judge for declining to order such examinations?
- (3) Did the court conduct investigations in response to complaints by defendants that they had been tortured or ill-treated while in police custody? If so, what were the findings of those investigations? If not, what were the reasons provided by the judge for declining to conduct such investigations?
- (4) Did the court conduct investigations into allegations by some defendants that security agents had arrested them and held them secretly for several weeks, in violation of Moroccan law, before presenting them to the court, and falsified their date of detention? If so, what were the findings of these investigations? If not, what were the reasons provided by the judge for declining to conduct such investigations?
- (5) Did the investigating judge refuse to allow defense lawyers to photocopy the case files before defendants' appearances before the investigative judge? If so, what was the reason for this refusal? How did the court reconcile this refusal with the right of each defendant to know all the evidence against him in order to prepare his defense, and with the established practice for decades in Morocco of allowing the defense to make photocopies during this phase?
- (6) Did the trial judge investigate the allegations of the six political defendants that the police had tricked them into signing falsified, incriminating versions of their statements? If so, what were the conclusions of those investigations? If not, why did the court decline to investigate these allegations?
- (7) Did the trial judge accept the defendants' police statements as evidence and grant them any probative value despite the defendants' allegations of torture and repudiations of those statements?
- (8) What is the court's response to allegations of mishandling of the material evidence against the defendants, namely the weapons caches, in ways that violate Morocco's law on criminal procedure and that undermine the integrity of the chain of control of the evidence?
As noted, we are eager to receive your timely answers to any and all of these questions, in order to incorporate them into our report on the trial. We are also ready to come to your offices in Rabat at your request to discuss these issues in person.
Thank you for your consideration.
Sincerely yours,
Sarah Leah Whitson, executive director for the Middle East and North Africa division, Human Rights Watch
Abdelaziz Nouaydi, president of Adala
