June 21, 2013

Denial of Timely Access to Justice

The Gdeim Izik Case

An additional flaw in the trial of the Gdeim Izik defendants described above was the violation of the defendants’ right to be tried without unreasonable delay, a right guaranteed by the International Covenant on Civil and Political Rights and article 120 of Morocco’s 2011 constitution. 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.)

When the defendants completed their initial days in pre-arraignment police custody, Investigating Judge Col. Mohamed el-Bakkali ordered them held pending trial, giving as a reason the gravity of the crimes of which they were accused.

Taki Machdoufi, May 15, 2013.  Machdoufi left prison in February 2013 after a military court sentenced him to the 27 months he had already served in the Gdeim Izik case. © 2013 Eric Goldstein/Human Rights Watch.

Morocco’s Code of Penal Procedure states in article 159 that pretrial detention should be an “exceptional” measure. 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 neither limits the time the defendant can remain in custody nor requires a periodic review of the detention.

Thus, while the investigating judge completed his investigation in November 2011, the Gdeim Izik defendants spent another 15 months in pretrial detention before the trial got under way.

Neither international nor Moroccan law specifies a maximum time period for pretrial detention or what constitutes excessive pretrial detention. Various factors, such as the complexity of the case, merit consideration. However, as noted in the section below on international law, a suspect held in custody pending trial has a right to periodic review of his pretrial detention by a judge, who must consider if it is still lawful, bearing in mind that detention before trial must be the exception and that proceedings toward the trial must be speedy.

Naâma Asfari, August 4, 2008, presently serving a 30-year prison term handed down by a military court in the Gdeim Izik case. © 2013 Eric Goldstein/Human Rights Watch

According to the Code of Penal Procedure, article 180, a defendant or his lawyer can ask the court at any time for his release from pretrial detention, and the court is obliged to reply in writing. This request can be renewed repeatedly.  The Code of Military Justice has a similar provision in article 67.[104] 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 military court did not, as far as Human Rights Watch has been able to determine, inform the defendants or their lawyers in writing of its response to written motions to release the defendants pending trial. 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. Initially, the 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 court had postponed opening the trial, without setting a new date.

Eight months later, the military court announced the trial would open on October 24. However, on October 23, the court announced another indefinite postponement, reportedly because Larbi 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, 2013. This time it opened as scheduled and concluded two weeks later.

Trial of Seven Sahrawi Activists

Morocco arrested seven Sahrawi activists in October 2009 and charged them one year later with “harming internal security.” The trial opened in October 2010, but proceeded fitfully, with numerous postponements. Authorities provisionally released four of the seven within seven months of their arrest but held the other three in pretrial detention for 18 months before releasing them in April 2011, when the trial was ongoing. More than two years later, the charges are still pending yet no further court sessions have taken place.

The seven defendants suffered a violation of their right to be tried within a reasonable amount of time. The violation was especially acute for those held for 18 months in pre-trial detention, but extends to the others, who also have a right to end the uncertainty about their fate.

What constitutes an unreasonable delay has to be assessed on a case-by-case basis, taking into account the complexity and the circumstances of each case, as well as the gravity of the charges and whether the defendants are detained pre-trial.

This case involves seven defendants and charges that were initially heavy before being scaled back. For one year, the case remained under investigation by a military judge, since the investigation centered on the charge of damaging Morocco’s “external security,” an offense over which military courts have jurisdiction even for civilians.[105] Just before the detainees reached the 12-month legal limit for detention during the investigative stage that applies to serious crimes,[106] the military investigating judge referred the case to a civilian court for trial on lesser charges.

Those charges, while less serious, nevertheless became the basis for the court to maintain three of the defendants in detention during the trial. That decision, along with the protracted investigation and the delays in conducting and concluding the trial, all suggest that, at the very least, the authorities gave little priority to ensuring a fair and prompt determination of whether these three Sahrawi human rights and self-determination activists had violated the law.

On October 8, 2009, Moroccan authorities arrested Sahrawi activists Ali Salem Tamek, Brahim Dahane, Ahmed Naciri, Degja Lachgar, Yahdih Etarrouzi, Rachid Sghaier, and Saleh Lebeihi immediately upon their return from visiting Sahrawi refugee camps near Tindouf, Algeria. The six men and one woman are all advocates of self-determination for Western Sahara., The Polisario Front, which the United Nations recognizes as the representative of the Sahrawi people, administers those camps. It favors a popular vote on self-determination, including the option of full independence, while Morocco proposes a measure of autonomy for the region but rejects independence as an option. Morocco and the Polisario, which Algeria supports, have engaged in fitful and so-far fruitless negotiations.

Moroccan authorities treat peaceful advocacy of independence, or even of a referendum where independence is one option, as an attack on its "territorial integrity," punishable by law.[107] Tamek, Dahane, Etarrouzi, Sghaier, and Naciri have been previously imprisoned by Morocco, along with hundreds of other Sahrawis, for their pro-independence activities. Dahane and Lachgar are both former victims of forcible disappearance.[108] Tamek, Dahane, and Naciri also are active in Sahrawi human rights organizations. Tamek, a resident of El-Ayoun, is vice-president of the Collective of Sahrawi Human Rights Defenders (CODESA). Dahane, of El-Ayoun, is president of the Sahrawi Association of Victims of Grave Human Rights Violations (ASVDH). Naciri was at the time vice-president of the Smara-based Committee for the Defense of Human Rights. Lachgar is a member of the executive committee of the ASVDH. Moroccan authorities have refused to grant legal recognition to CODESA and the ASVDH.[109]

After their arrest, the seven spent eight days at the headquarters of the Judicial Police in Casablanca, four of them blindfolded and handcuffed in individual cells, according to Dahane, Sghaier, and Etarrouzi. The Moroccan authorities did not inform the detainees' relatives of their arrest until the evening of October 12, 2009, according to Dahane, Sghaier and Etarrouzi,[110] in contravention of the Code of Penal Procedure. The judge to whom they were presented on October 15, 2009, remanded them to Salé Prison.

Brahim Dahane, September 12, 2012.  Dahane spent a year and-a-half in pre-trial detention before being provisionally released in the case of seven Sahrawi activists charged with “harming internal security.” Two years after his release, the trial has not resumed. ©2013 Eric Goldstein/Human Rights Watch

A military investigating judge investigated the seven on charges of “undermining external state security,” an offense under articles 190-193 of the Penal Code and for which civilians can be tried by a military court, under the Military Justice Code’s article 4. An offense under article 190 of the Penal Code can lead to a prison term of 20 years in prison, plus a fine, if committed in times of peace. On September 21, 2010, after investigating the seven defendants for nearly twelve months, [111] the military investigating judge dropped the charges under article 190-193 and referred them to a civilian court, which filed a less serious charge against them of harming internal state security under Penal Code article 206. [112]

The charge related to the delegation’s two-week visit to the Tindouf refugee camps, where they met openly with officials of the Polisario. During the activists' visit to Tindouf, some Moroccan political parties and newspapers, including the organ of the prime minister's party, denounced the seven as "traitors." According to a report issued on October 8, 2009, by the state news agency, Maghreb Arabe Presse (MAP), the prosecutor ordered the seven arrested because of their meetings with "bodies opposing Morocco," a probable reference to their meetings with Polisario Front officials, including the president in exile.

On November 6, 2009, King Mohammed VI gave a speech indicating a harder line toward advocates of self-determination for Western Sahara:

Now is the time for all government authorities concerned to strive doubly hard, show great resolve and vigilance, enforce the law and deal vigorously with any infringement of the nation's sovereignty, security, stability and public order.... Let me clearly say there is no more room for ambiguity or deceit: either a person is Moroccan, or is not.... One is either a patriot, or a traitor.... One cannot enjoy the rights and privileges of citizenship, only to abuse them and conspire with the enemies of the homeland...

On January 28, 2010, Moroccan authorities provisionally released Lachgar, the only woman in the group, following reports that her health was poor. On March 18, 2010, the remaining six detainees started a hunger strike to protest their continuing detention without trial.It lasted 41 days. The activists said in a statement that their visit to Tindouf was "for humanitarian and purely human rights reasons."[113] They denied accepting money to fund or foment unrest among Sahrawis in Morocco or Western Sahara. On May 18, authorities provisionally released Etarrouzi  and Lebeihi, both of El-Ayoun, and Sghaier, of Dakhla.

The trial opened on October 15, 2010, one year after the arrests, before the Casablanca Court of First Instance in Aïn Sbaâ. The court immediately postponed the trial because the authorities had failed to transport the three detained defendants from the prison to the courtroom. Numerous disruptions marred the court session. Disruptions also marked subsequent sessions and led to adjournments of the trial. On October 15, defendants entered the court chanting in favor of Sahrawi self-determination and making a “V” sign with their fingers held high, according to international observers who were present.[114] A large contingent of Moroccan lawyers in robes who were present in the courtroom but not representing any party in the case responded by shouting slogans in favor of “Moroccan Sahara.” The courtroom fell into disorder and the judge adjourned the session.

The trial was supposed to resume on November 5, 2010, but was postponed for another six weeks. Human Rights Watch's observer reported that before the session got under way, men and women wearing lawyers' black robes formed a large and imposing group at the entrance to the courtroom and occupied the front rows inside. They chanted “Moroccan Sahara” slogans; some carried Moroccan flags and a photo of King Mohammed VI.

At about 2 p.m., presiding Judge Hassan Jaber came in, the spectators rose, and the room grew quiet. When the judge called the defendants into the courtroom, they walked in chanting Sahrawi self-determination slogans. This prompted some supporters to raise their hands in the "V" sign, while other spectators began chanting pro-Moroccan slogans.

The shouting and tension escalated, without any apparent intervention by security forces to restore order. After about 20 minutes, the judge left the courtroom. Some of the spectators then punched and kicked known Sahrawi activists attending the trial, including Larbi Messaoud of CODESA and two Spanish journalists, Eduardo Marin of Cadena SER radio and Antonio Carreño of TVE television.

The trial began in earnest on December 17 and continued on January 7 and 14, 2011. The prosecution sought to show that the meetings held by the defendants while in Algeria, and money they allegedly received there, constituted offenses under article 206 of the Penal Code. Moroccan authorities told Human Rights Watch that the defendants “received material support from the Algerian authorities to incite the residents of the southern regions to disobedience and riots that infringe on the country’s higher interests.”[115]

Some of the defendants acknowledged receiving money while in Algeria but said it was only a small amount to cover their travel expenses. Other defendants denied receiving money while there and said that the Casablanca-based Sahrawi activist Mohamed Elmoutaouakil and Aïcha Dahane, defendant Brahim Dahane’s sister, had given them the money they had in their possession. 

The judge said the court would announce its verdict on January 28, 2011. Instead, the court decided to summon Elmoutaouakil and Aïcha Dahane as witnesses. The two testified on March 4 and March 25, 2011, respectively. On March 28, 2011, the three detained defendants appeared again before the judge. During the court sessions, the prosecution produced no evidence that the defendants had received “material support” from Algerian authorities to stir unrest, according to defendant Dahane.

Then, on April 14, 2011, the court ordered the provisional release of the three detained defendants, without scheduling a date for the resumption of the case. Since then, the court has shown no signs of resuming the trial; all seven defendants are provisionally free and not impeded in their movements. Authorities state that the court is conducting a “complementary investigation” into the case, which is ongoing.[116]

[104]Code of Military Justice, November 20, 1956, dahir no. 1-56-270.

[105]Code of Military Justice, November 20, 1956, dahir no. 1-56-270.

[106]Pretrial detention is limited 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. Code of Penal Procedure, art. 177.

[107]See, for example, article 41 of the press code of 2002.

[108]On Dahane’s forced disappearance from 1987 to 1991, see Amnesty International, “Morocco/Western Sahara: Sahrawi human rights defenders under attack,” November 24, 2005, http://www.amnesty.org/en/library/asset/MDE29/008/2005/en/78b6dddc-d482-11dd-8743-d305bea2b2c7/mde290082005en.html (accessed November 13, 2012). On Degja Lachgar’s forced disappearance from 1980 to 1991, see the Sahrawi Association of Victims of Human Rights Violations, “Report: Political prisoner Dagja Lachgar held in solitary confinement, Zaki prison, Salé, Morocco,” December 10, 2009, http://asvdh.net/3736 (accessed November 13, 2012).

[109] See Human Rights Watch, “Freedom to Create Associations: A Declarative Regime in Name Only,” October 7, 2009, http://www.hrw.org/reports/2009/10/07/freedom-create-associations-0.

[110]Human Rights Watch interview with Brahim Dahane, September 12, 2012, Rabat, and phone interview with Yahdih Etarrouzi and Rachid Sghaier, May 8, 2010.

[111]Military Court of Rabat, first trial chamber, Case No. 2837/2546/09, September 21, 2010.

[112]Penal Code art. 206 stipulates, “A person who directly or indirectly receives from a foreign person or organization, gifts, loans, or other advantages, in any form, that are used or intended to be used, in whole or in part, to carry out or to pay for an activity or for propaganda in Morocco that could harm the integrity, sovereignty, or the independence of the Kingdom, or to shake the loyalty that citizens owe the State and the institutions of the Moroccan people, shall be guilty of harming the internal security of the state and punished by imprisonment from one to five years and a fine of 1000 to 10,000 dirhams [US$120 to 1,200].”

[113]“Essential Clarification,” signed by Tamek, Naciri, Dahane, Sghaier, Lebeihi, and Etarrouzi, March 10, 2010, http://awsa.org.au/wp-content/uploads/2010/04/eng-2.pdf (accessed November 13, 2012).

[114]Swedish Section of the International Commission of Jurists, “Trial Observation Report, From the Proceeding before the Court of First Instance, Ain Seeba, Casablanca, Morocco, brought against Brahim Dahane, Ali Salem Tamek, Ahmed Ennasiri, Degja Lechgar, Yahdid Terrouzi, Saleh Lebeihi, and Rachid Sghair,” February 7, 2011, http://www.icj-sweden.org/Trial%20observation%20Group%20of%207,%202011,%20final%20version.pdf (accessed August 7, 2012).

[115]See Appendix I.

[116]The authorities’ statement on the case is in Appendix I.