(Rabat) – Two men accused of consensual homosexual activity are serving prison terms after a trial that seems to have been unfair, Human Rights Watch and the Aswat Group for Sexual Minorities, a Moroccan group, said today.
The First Instance Court in the Mediterranean city of al Hoceima convicted the two defendants of sodomy in a very brief trial held only five days after their December 13, 2014 arrest. They were convicted based on “confessions” the police said the defendants made in pretrial detention but that the defendants repudiated before the judge. The court called no witnesses to testify. An appeals court upheld the sentence on December 30.
“The combination of a state that enforces sodomy laws, a justice system that denies a fair trial, and the social stigma attached to homosexuality is a formula for damaging people’s lives,” said Sarah Leah Whitson, Middle East and North Africa director.
The al Hoceima Appeals Court upheld the conviction for committing a “deviant sexual act with a member of the same sex” (penal code article 489) and “public indecency” (article 483), but reduced the sentences for both men from three years in prison and a fine to six months for one and one year for the other, who was also convicted of attempted bribery (article 251).
Human Rights Watch has documented a pattern by which Moroccan courts violate the right to a fair trial by relying on confessions to convict defendants and by failing to investigate seriously or at all when defendants repudiate those statements as either coerced or falsified. Defendants in many cases or their lawyers have repeatedly told Human Rights Watch that the police either forced or intimidated the defendants into signing their statements without reading them.
Moroccan law penalizes what it refers to as acts of “sexual deviancy” between members of the same sex, a term that police reports and court documents use to refer to homosexuality more generally.
Morocco’s 2011 Constitution states, in article 24, “All persons have the right to protection of their private life.” This right, absent in the previous constitution, should lead to the abolition of the law criminalizing consensual same-sex conduct, Human Rights Watch and Aswat said.
At about 11 p.m. on December 13, a group of gendarmes stopped a car they observed to be driving erratically on a coastal road in al Hoceima province, the police report of the incident says. As the gendarmes approached the car, the younger passenger waved his arm as if he wanted to tell them something.
When the gendarmes separated the two men in the car to question them, the report says, they observed that the younger man “showed signs of homosexuality (sexual deviancy) in his movements, manner of speaking and behavior.” He said the older man had tried to rape him. The driver denied it and said that they had only been “caressing,” the police report states. It then notes that the older man offered the gendarmes the 970 dirhams (US$100) he had in his pocket if they would agree to let the men go. The gendarmes took both men to a police station in Imzouren for more questioning.
The older defendant is an elected local official in his 50s and the other a student in his 20s.
The police questioned the two suspects separately and obtained signed statements from both (al Hoceima Police statement no. 276, December 13, 2014). The younger defendant, according to his statement, acknowledged that he was “a homosexual (sexual deviant)” who “will have sex with anyone who pays [him],” and that he had had “sex with his co-accused in his car for money on six occasions.” The older defendant, in his statement, acknowledged that he paid his co-accused for sex that evening, described the sex acts that they had performed, admitted attempting to bribe the gendarmes, and described the car he was driving when arrested as “the same car I use when hunting for homosexual victims, and in which I satisfy my desires.”
Two days after their arrest, when he appeared before the prosecutor, the younger defendant denied the charges and that he had ever engaged in homosexual activity, according to the minutes of that hearing. At trial, his co-defendant also repudiated his “confession.”
Nader Yahiaoui, a lawyer who defended the younger man, told Human Rights Watch he could not say for certain if the police statements were coerced because – as is legal and common practice in Morocco – no lawyer was present when the police interrogated his client or asked him to sign his statement. However, the defendant’s father told Human Rights Watch that during a prison visit, his son said that he signed his police statement without reading it because the police scared him by shouting and banging their fists on the table. It is not known whether the defendant informed the court about this alleged intimidation.
Morocco’s code of penal procedure (CPP), article 293, states that any confession obtained through “violence or coercion shall not be considered as evidence” by the court.
In this case, the First Instance Court seemingly made no effort to investigate so that it could weigh the credibility of the defendants’ “confessions” against their repudiation in court. With Judge Nabil Wahyani, presiding, the court called no witnesses and concluded the trial in 10 minutes, the younger defendant’s father, who was there, told Human Rights Watch.
The court, in its written judgment (ruling number 574/14), acknowledged that the defendants repudiated their police statements but opted to accept them as evidence anyway. It cited CPP article 290, which presumes the credibility of statements prepared by the police, “save proof to the contrary,” thereby placing an unfair burden of proof on defendants to show when such statements are false.
Before the Appeals Court, the defendants again denied the charges. Their lawyers pointed out that no one had observed the sex act that constitutes the offense in the penal code. The appeals court, with Judge Mohamed El-Andaloussi presiding, called no witnesses and, like the lower court, convicted the defendants on the basis of their contested “confessions,” invoking the above-mentioned principle from the CPP that statements prepared by the police are to be deemed trustworthy until proven otherwise. (Ruling 436, Case 364-2601-2014.)
The defense lawyers told Human Rights Watch they planned an appeal to the Court of Cassation, which does not re-try the facts but can send a case back for retrial if it determines that the courts misapplied the law. One issue that arose at trial was an unsuccessful challenge by the defense to the court’s handling of the case according to the expedited procedures that apply in flagrant délit (“caught in the act”) cases. In this case, the application of these procedures resulted in the conclusion of a first-instance and appeals trial within 17 days of the alleged offenses. The International Covenant on Civil and Political Rights states in article 14.3(b) that an accused party shall “have adequate time and facilities for the preparation of his defense.”
In 2014, an appeals court in Beni Mellal upheld the imprisonment of two men convicted under article 489 on the basis of “confessions” to the police that the defendants repudiated at trial.
Human rights activists in Morocco say that similar prosecutions on sodomy charges occur and go unreported due to the social stigma felt by the defendants and their families and the reluctance of most activists to rally to their defense.
“The shame attached to homosexuality in Morocco intimidates many of those who might otherwise defend people they believe to have been wrongly convicted,” said a member of Aswat. “That’s something that should worry not just homosexuals but all Moroccans.”
Criminalizing consensual, adult homosexual conduct violates international human rights law. The International Covenant on Civil and Political Rights (ICCPR), which Morocco has ratified, bars interference with the right to privacy. The United Nations Human Rights Committee has condemned laws against consensual homosexual conduct as violations of the ICCPR. The United Nations Working Group on Arbitrary Detention has held that arrests for consensual homosexual conduct are, by definition, human rights violations.
“If Morocco truly aspires to be a regional leader on human rights, it should lead the way in decriminalizing homosexual conduct,” Whitson said.