Summary

After the Moroccan boxer Zakaria Moumni won the light-contact boxing world championship in 1999, he repeatedly contacted Moroccan authorities to claim a job in the Youth and Sports Ministry to which he believed he was entitled by law as a Moroccan world title-winner.

When he was rebuffed Moumni frequently made his case before Moroccan and international media. On September 27, 2010, police stopped him at Rabat airport upon his return from a trip to Paris. They accused him of “harming sacred values,” a term often used to refer to the monarchy and the person of the king, and detained him.

According to Moumni’s account security officials then drove him to an unknown location where they handcuffed, stripped, and blindfolded him and subjected him to torture. They beat him, hung him by his arms, applied electric shocks, and deprived him of sleep and food over a three-day period, Moumni said.

On the morning of September 30, Moumni says police put his clothes back on, walked him up a set of metal stairs, and put him in a car. They drove him to the police station in the second district of Rabat, where they removed his blindfold. He found himself in a room with 13 men, most of them in plainclothes. They told him he would have to sign some documents in order to get back his personal belongings. He told Human Rights Watch:

They put documents in front of me, but they were covering the top part of the page. I said I wanted to read what I was signing. They said, “Just sign here, you’ll get your stuff back, and you’ll be free to go.”

Moumni said the security officials drove him straight from the police station to court, where his trial took place in the absence of defense lawyers, witnesses or spectators. Four days later on October 4, Moumni, sitting in jail, learned that the court had found him guilty of fraud and sentenced him to three years in prison. The conviction was based mainly on a signed statement that Moumni insists he was forced to sign without reading it.

Morocco’s new Constitution, approved by voters in July 2011, marked a major step both in the protection of fair-trial rights for defendants and in the promotion of judicial independence and access to justice. The judicial provisions of the Constitution were the culmination of an official campaign to reform Morocco’s justice system, which aimed, in the words of King Mohammed VI, to "make justice more trustworthy, credible, effective, and equitable, because it serves as a strong shield to protect the rule of law."

However, enduring flaws in the judicial system indicate that reforming the judiciary will be an uphill struggle. This report offers analysis of six politically sensitive cases adjudicated between 2008 and 2013, including the case of Zakaria Moumni, where the courts violated the right of defendants to a fair trial.

The six cases, involving a total of 84 defendants of whom 81 served time in prison, highlight two major weaknesses. First, in five of the six cases, the courts handed down convictions based largely on confessions that the police obtained from defendants and that those defendants contested in court. The courts did not make a proper effort to determine if these confessions were obtained through torture of the defendants or other illegal methods. The courts also based their convictions on incriminating written statements by witnesses or complainants without requiring those persons to provide their testimony in court where the defendants or their representatives could challenge them.

Second, in two of the six cases, there was a clear denial to the 32 defendants, especially to the 25 of them who had spent at least 18 months in pretrial detention, of timely access to a trial or court hearing once they had been charged or been subjected to prejudicial administrative actions.

It is not clear whether the failures of the Moroccan judicial system in these cases reflect a lack of judicial independence—pressure or interference by the executive branch or another party—or simply poor-quality justice, where judges do not show due diligence in trying to discern the truth by examining all pertinent evidence and discounting statements that may have been obtained through impermissible means. Lack of independence and due diligence may both have played a role. Whatever the reasons, the result is clear: unfair convictions for the defendants.

In five trials, we examined the court’s readiness to admit incriminatory evidence that the defendants had contested as false, notably the defendants’ “confessions” made while in police custody. These cases include the trials of:

• 25 Sahrawis in 2013 for their alleged role in the deaths of police during deadly violence that erupted in Western Sahara in 2010;
• labor and human rights activist Seddik Kebbouri and nine co-defendants for their role in disturbances that erupted in the city of Bouarfa in 2011;
• boxer Zakaria Moumni on charges of fraud in 2010; 
• 35 defendants arrested in 2008 and accused of belonging to a terrorist cell, known as the “Belliraj” case, after the family name of one of the leading defendants;
• the trial in 2012 of six protesters from the February 20 youth movement for assaulting police officers while refusing to leave an “illegal” gathering.

In all these trials, the court convicted and imprisoned the defendants primarily on the basis of their contested confessions. In so doing, they displayed an apparent lack of diligence in failing to conduct serious investigations into defendants’ allegations of torture or ill-treatment during interrogation by police while at the same time admitting the defendants’ police statements into evidence.

In the Belliraj case, for example, the court justified dismissing torture allegations on the grounds that the defendants had not raised them at their first appearance in court. On the one hand, some defendants had in fact informed the court early on that the police had mistreated them under interrogation, without triggering any kind of inquiry. But even where they had not done so, the court should not dismiss torture claims summarily simply because the defendant was “late” in making them.

While the court is entitled to consider the timing of a defendant’s introduction of a torture claim as relevant in judging its credibility, it should also recognize that there are many reasons why a defendant may introduce a torture claim late in the trial other than a desire to escape punishment.

The courts also failed to allow the defense sufficient opportunity to challenge other incriminating evidence and deprived defendants of their right to call witnesses whose testimony might shed light on the facts in dispute.

In one respect, Morocco’s laws on evidence contribute to the lack of diligence by the courts in scrutinizing allegations of torture or ill-treatment. Article 290 of the Code of Penal Procedure instructs the court to presume that statements prepared by the police are credible, in cases where the defendant faces less than five years in prison.[1] Courts often quote this rule in written verdicts where they decide to convict defendants based on incriminating statements made to police, even if the defendants allege their statements were coerced. Article 290 should be revised so that the evidentiary standard is the same as the one that applies to more serious offenses, which requires the court to treat a police statement like any other piece of evidence, with no inference made about its credibility.

In two of the six cases examined in this report, courts unduly delayed bringing defendants to trial or concluding their trial, prejudicing defendants and denying them their right under international law to a “trial within a reasonable time,” a right newly enshrined in article 120 of Morocco’s constitution.

In many jurisdictions around the world, including Morocco, delays occur in the justice system due, for example, to backlogged courts, defense requests to postpone hearings, or the necessities of the judicial process. In these two cases, however, these factors do not seem to be responsible for the delay.

In both cases, the defendants include advocates of independence for Western Sahara. Authorities consider advocates of Sahrawi independence to be “separatists” who act in violation of Morocco’s laws that prohibit “attacks on territorial integrity.”

In the first of the two cases, 21 of 25 defendants spent 26 months in pretrial detention before going on trial for their alleged role in the violent clashes that occurred in Gdeim Izik, Western Sahara, in November 2010 in which 11 security force members were killed.

In the second of these two cases, the government has accused seven activists of undermining Morocco’s internal security while visiting the Polisario-run refugee camps near Tindouf, Algeria, by collecting funds there to stir unrest and subversion in Western Sahara; this is an offense punishable by five years in prison. Three of the seven defendants spent a year and-a-half in pre-trial detention before the judge released them. Since their release, more than two years have passed without the trial resuming or the case being dropped. According to a government reply to Human Rights Watch the court is conducting a “complementary investigation” that is continuing.

This apparent inconsistency in the court’s approach to the case—first treating it as serious enough to detain three of the defendants 18 months pretrial, and then freeing them without resuming the trial during two years—may suggest that political concerns guided the court’s handling of the case.

The conclusions from our analysis of the six cases examined here lead to two key recommendations. First, courts should diligently examine any claims made by defendants that the police obtained their self-incriminating statements by force or coercion and exclude statements so obtained, except as evidence against those responsible for abusing the defendant. Secondly, courts should end the practice of unduly prolonged pretrial detention of defendants and conduct trials with reasonable promptness, all the more promptly when the defendants are being provisionally detained. Detailed recommendations follow.