Your Excellencies:
Human Rights Watch is writing to protest what appears to be the arbitrary and politically motivated sealing of houses belonging to two members of Justice and Charity, including its new leader Mohamed Abbadi. The owners have been denied access to their property since 2006, when the police sealed them.
Given that the Moroccan authorities have not provided any explanation that would justify the deprivation of the owners of the use of their property for seven years, we urge you to lift the closure of these properties and allow the owners full use of them, and to refrain from taking such measures in the future without informing to the affected parties of the basis in Moroccan law for this action and indicating the legal recourses available to them. Furthermore, we urge you to order an investigation into these seizures and compensate the owners if it is found that authorities deprived them of the use of their property arbitrarily.
The letter that Moroccan authorities sent to Human Rights Watch on September 27, 2012, about these cases does not explain the legal basis for the seizure; nor in our estimation, does it dispel the impression that authorities have deprived the property owners of any legal recourse. In the meantime, the owners have suffered harm, by being denied both use of their property and the ability to maintain or sell them.
Justice and Spirituality is a nationwide religious movement in Morocco that claims to function as a legally declared association. Authorities approach the movement ambiguously, tolerating many of its activities while suppressing others and engaging in sporadic arrests of its members on such charges as participating in “unauthorized” meetings or demonstrations.
One of the punitive measures that Moroccan authorities have used against Justice and Spirituality members has been to summarily seal their homes on the grounds that they used them to host “unauthorized” meetings.
This has occurred in several cases around the country over the past decade. Human Rights Watch, in its 2012 letter to authorities, asked whether Justice and Spirituality is a legally declared association that is exempt, pursuant to Morocco’s law concerning public gatherings, from the meeting notification requirement. In their response authorities did not answer this question.
In all but two of the recent cases of house-sealing, authorities have rescinded the closures and allowed the owners to access their properties again. However, they have kept two houses in eastern Morocco sealed for seven years and counting.
Human Rights Watch has studied closely the facts in one of these two cases, the one involving the house in the city of Bouarfa that belongs to Lahcèn Atouani. This letter will focus on the facts in that case.
Atouani is a school principal born 1957. The house in question was not his primary residence; it is located at 131 lôtissement al-Massira, 2e tranche. Before its closure, this large house had been a site of frequent meetings of Justice and Spirituality members. It could accommodate gatherings of up to 100 persons, according to Atouani.
On June 13, 2006, during one such meeting, the police arrived at 10:30 p.m., arrested the more than 40 persons present, and ordered Atouani to remove whatever property he wanted from the house because they were going to seal it. The police transported those whom they arrested to the police station, where they took their statements before releasing them. Atouani said that the police told him that they “had instructions” to close his house, but provided him with no written order.
Atouani petitioned the Oujda administrative court for an expedited hearing. The court declined the request to rule on an expedited basis, on the grounds that Atouani resides in a second house and so was not rendered homeless by the closure.
Mohamed Aghnaj, a Casablanca-based lawyer and member of Justice and Spirituality’s human rights committee, told Human Rights Watch that the police submitted a statement with the administrative court explaining that the closure order emanated from the general prosecutor rather than from the administration. The purpose of this statement, in Aghnaj’s view, was to persuade the court to declare itself incompetent to judge the case. (Administrative courts review decisions taken by administrative but not by judiciary bodies.)
The administrative court endorsed this argument and declared itself incompetent (Oujda Administrative Court case 32/2006).
Atouani did not appeal the administrative court’s ruling. But while the court was still examining the case, he filed a complaint (requête) with the prosecutor’s office. The prosecutor dispatched the police to record Atouani’s statement, but informed him that, to file a complaint, he would also need to furnish a document proving that the house had been sealed, Atouani told Human Rights Watch. Since he had received no official document notifying him of the closure, he hired a court bailiff (huissier de justice), who prepared a sworn statement, dated June 23, 2006, affirming that he had gone to the house and found its door padlocked.
Meanwhile, a court in Bouarfa on December 5, 2006, convicted four of the Justice and Spirituality Movement members whom the police had arrested at Atouani’s house on June 13, 2006, for participation in an unauthorized meeting and fined each of them 3000 dh (US$360), (case 209/2006, judgment 2145; appeals case 56/2007, judgment 2314), raised to 4000dh (US$480) by the Oujda Court of Appeals. The defendants are Abderrahmane BenTaher, Ziane Lahjaji, Noureddine Benhida, Joudi Boudaoudi, all of Bouarfa. The court convicted them under article 9 the 1958 Law Relative to Public Gatherings, which penalizes the holding of a public meeting without advance notification to authorities.
The law exempts legally constituted associations from the requirement. The defense argued, unsuccessfully, that the meeting was private rather than public and that because Justice and Spirituality is a legally-declared association, it is exempt from the requirement.
Atouani’s house has remained sealed since June 2006. He told Human Rights Watch that this has been costly to him because, denied access, he cannot assure its upkeep or sell the property at a reasonable price, since buyers can neither inspect it nor be certain of its legal status. When representatives of Human Rights Watch approached the house on February 2, 2012, two men wearing uniforms who had apparently been in front of it ran up the street, as if to hide their role in guarding the house. In a courtyard facing the padlocked front door was a bench with cushions that appeared to be a makeshift guard post.
The assistant general prosecutor of the Oujda Appeals Court, Mohamed ‘Aou, sent Atouani a letter dated March 23, 2012. Responding to a complaint filed by Atouani dated February 3, 2011, the assistant general prosecutor wrote that the sealing of the house was an "administrative decision" taken by an "administrative body." Therefore, the prosecutor concluded, he could not act on the complaint since it fell outside his jurisdiction.
Moroccan authorities, in their letter to Human Rights Watch, confirmed this classification of the case: the house was sealed “by order of the local authorities” and therefore Atouani “should follow the code for filing appeals of actions taken by the administration.”
In other words, authorities are stating that Atouani should appeal the measure before an administrative court, ignoring that in 2006 an administrative court had declared itself incompetent to rule on the closure order since, authorities claimed, it was a judiciary rather than an administrative act.
Authorities in 2006 also sealed a house belonging to Mohamed Abbadi in Oujda, in circumstances similar to those of Atouani’s. Abbadi’s house is located at 46 avenue Mohamed Ben Abdellah.
In December 2012, Justice and Spirituality named Abbadi to succeed the late Sheikh Abeslam Yassine as leader of the movement.
Lawyer Aghnaj told Human Rights Watch that both Atouani’s and Abbadi’s houses have been subject to break-ins and vandalism since their closure.
Morocco’s Penal Code, in a section on “precautionary measures involving persons and property” (mesures de sûreté personnelles ou réelles), allows for “the closure of the establishment which served in the commission of an offense” (article 62). We do not know if this article is the legal basis offered for the sealing of Atouani’s house because, as far as we know, no legal basis for this measure has ever been provided. Human Rights Watch asked this question in its letter to authorities on the case, but got no answer (the government’s response is appended to this letter). Morocco’s law on public gatherings does not mention the sealing of private property as a punishment for the holding of unauthorized gatherings.
Jurisdictions around the world have laws that allow court-ordered seizures of property used in the commission of offenses, such as drug-trafficking. However, in the cases at hand, the long-term sealing of two houses seems related to the “offense” of holding “unauthorized” peaceful meetings, which makes it a punishment that is not only disproportionate but also contrary to the internationally recognized right to freedom of peaceful assembly, guaranteed by article 21 of the International Covenant on Civil and Political Rights and under article 29 of the Moroccan constitution of 2011.
In addition, the Universal Declaration of Human Rights states, in article 17, “no one shall be arbitrarily deprived of his property,” a right that Moroccan authorities seem to have violated in closing Atouani’s house and giving him no means of challenging the measure. Human Rights Watch has been unable to determine if the same denial of justice obtains in the case of Abbadi.
Morocco’s constitution states, in article 35, “The right to property is guaranteed…. Expropriation may only proceed in the cases and the forms provided by the law.” The constitution states in article 118,
Access to the justice system is guaranteed to every person for the defense of his rights and his interests that are protected by the law.
Any decision taken within an administrative framework, whether its character is regulatory or individual, can be challenged before the competent administrative jurisdiction.
To summarize, it appears that authorities have for seven years arbitrarily deprived Mr. Atouani of use of his property and then deprived him of any means of appeal, by classifying the closure as a judicial decision when he appealed to the administrative court, and then classifying it as an administrative decision when he complained to the office of the prosecutor.
We urge you therefore to restore full use of his property to Mr. Atouani, and to compensation for any loss he has suffered as the result of arbitrary action.
While we have not followed as closely the legal recourses pursued by Mr. Abbadi, the long-term sealing of his house on the grounds of hosting “unauthorized” meetings, like Mr. Atouani’s case, appears to violate Morocco’s obligation to uphold freedom of association and, moreover, seems a disproportionate punishment for what is at most a minor offense. We urge you therefore to restore to Mr. Abbadi full use of his property, and if an investigation shows the sealing to have been arbitrary, to compensate him.
As noted above, we urge you to refrain from sealing houses in the future when the purported offense is hosting “unlicensed” peaceful meetings. We also urge you when sealing houses to inform the affected parties in writing of the basis in Moroccan law and to indicate the legal recourses available to them.
We thank you for your consideration and welcome your response.
Sincerely yours,
