Your Majesty:
Human Rights Watch is writing to ask that you examine the case of Kaddour Terhzaz, a Moroccan-French citizen and a 72-year-old retired Major Colonel of Morocco's Air Force. Mr. Terhzaz is presently serving a 12-year prison term in Salé Prison for "harming external state security by having communicated a national defense secret."
Human Rights Watch believes that Mr. Terhzaz was unjustly convicted for peacefully expressing his views, and that he should be released and his conviction overturned. We also object to the harshness of the sentence and the current conditions of his incarceration, which include since November 30, 2009 placing him in a one-man cell and depriving him of nearly all contact with fellow prisoners.
The authorities arrested Mr. Terhzaz, who retired from the military in 1995, on November 9, 2008. The Permanent Military Court of the Moroccan Armed Forces in Rabat convicted him on November 28, 2008.
The case against him stems from a letter he wrote to Your Majesty in 2005, appealing to you, as head of state and commander-in-chief of the Royal Armed Forces, for better treatment of the former Air Force pilots who had been shot down and captured by the Polisario Front during its war with Morocco over Western Sahara in the late 1970s. Those pilots had recently returned to Morocco after a quarter of a century as prisoners of war in Polisario-run camps in the Algerian desert.
In his letter, Mr. Terhzaz expressed support for the pilots he once commanded, regretting that they had not received promotions in rank during their years in captivity and complaining that the state had not honored them in a manner befitting their service and sacrifice. Morocco, he charged, had treated Polisario militants who had come over to the Moroccan side better than it had treated its own pilots, despite the hardships they endured in captivity and the new ones they faced upon returning home.
Mr. Terhzaz's letter, in describing the danger that these pilots faced in their missions, noted that they had been shot down while flying aircraft that were not equipped with anti-missile systems.
Before sending the letter to Your Majesty, Mr. Terhzaz gave a copy to Ali Najab, one of the Air Force captains imprisoned for 25 years by the Polisario after his airplane had been shot down in 1978. Najab was, in 2005, actively lobbying the state to provide better treatment for his fellow ex-pilot-prisoners.
To emphasize the courageous and perilous nature of their service to their country, Mr. Najab told the press that he and his fellow pilots had been shot down by Polisario missiles when flying jets that lacked anti-missile defenses. Mr. Najab recounts his capture by the Polisario thus in Aujourd'hui le Maroc of May 7, 2004 that is, well before he received the letter from Mr. Terhzaz:
What must have happened is that one of the engines accidentally caught fire. Then a missile was launched that headed straight toward the plane, the burning engine being a major heat source that helped to guide the missile. At that time, our planes had no anti-missile defenses. With both engines on fire, I could no longer steer the plane and I had to eject.
In 2006, the Moroccan magazine Maroc Hebdo International published an article in its April 21 issue profiling Ali Najab and his efforts on behalf of ex-prisoners-of-war. The article quotes him as remarking:
As for us fighter pilots, our planes were not equipped with electronic anti-missile devices. We knew it and yet we still went into combat. We were required to do so by the orders we had been given and by love for the homeland.
Authorities did not to our knowledge charge or criminally investigate Ali Najab in connection with these two statements or others like it.
To our knowledge, Mr. Terhzaz received no response to his 2005 letter to Your Majesty. However, on November 9, 2008 - three years after Mr. Terhzaz sent the letter and shared a copy with Mr. Najab - authorities arrested Mr. Terhzaz.
Nineteen days later, on November 28, the military court convicted Mr. Terhzaz of conveying a "national defense secret" to a party not "qualified" to know it, in violation of Articles 187 and 192 of the penal code. The written verdict of the court (verdict 08/3437 in case number 2008/3009/3314) refers to no "secret" other than that the Air Force planes that the Polisario had shot down nearly three decades earlier lacked anti-missile systems, and to no "unqualified" recipient of this alleged secret other than ex-pilot Ali Najab. The court sentenced Mr. Terhzaz to 12 years in prison, pronouncing the verdict in the name of Your Majesty.
The military court's guilty verdict was confirmed on May 13, 2009 when the Supreme Court, with Judge Taïeb Anjar presiding, pronounced, in the name of Your Majesty, a rejection of the cassation of the verdict. Cassation is the only available level of appeal of military court verdicts. Had Mr. Terhzaz been tried by a civilian court, he would have had access both to an appeal and cassation.
The penal code's article 187 defines "national defense secrets" to include, among other things, "information of a military, diplomatic, economic, or industrial type that, by its nature, must be known only to persons qualified to know it, and that must, in the interest of national defense, remain secret vis-à-vis all other persons..."
Article 192 provides punishments for persons who "gain possession by any means whatsoever of a national defense secret or who bring it to the attention, in whatever form and by whatever means, of the public or of a person who is not qualified to know it."
In peacetime, the punishment for infractions of Article 192 is a fine and a prison term of one to five years in prison. However, in time of war, the punishment is a sentence of five to 30 years. The court ruled that Mr. Terhzaz's offense took place during wartime, rejecting arguments that the Morocco-Polisario ceasefire in effect since 1991 meant that the country was no longer in a state of war.
It is worth pointing out that the "secret" allegedly communicated in 2005 relates to a military situation prevailing in 1978, that is, nearly three decades earlier. It is also noteworthy that the person "unqualified" to know about the lack of antimissile systems on fighter planes was himself a pilot of such a plane. There can be little doubt that Mr. Najab was aware of this fact when he flew the plane; moreover, and as noted above, he mentioned this very fact in interviews published by the Moroccan press prior to his receiving the letter from Mr. Terhzaz. For this reason, we consider that in writing the letter and providing it to Mr. Najab, Mr. Terhzaz was exercising his right to peaceful expression, a right protected by Article 19 of the International Covenant on Civil and Political Rights, which Morocco ratified in 1979.
It is also noteworthy that the military court tried and imposed a heavy prison term on Mr. Terhzaz only 19 days after his arrest and only one week after the court drew up the formal charges and referred him to trial. The court, with Driss Jabrouni presiding, closed the trial, evicting spectators and family members after the preliminary motions and allowing them back in only to hear the judge announce the verdict and sentence. Mohamed Aouragh, one of the defense lawyers, told Human Rights Watch that the court rejected both a petition to postpone the hearing to allow the defense more time to prepare, and a petition to summon witnesses requested by the defense. The court deliberated for less than two hours before reaching a verdict.
Mr. Terhzaz has now been imprisoned for over 15 months.
Since October 2009, he has sought to have lawyer Abderrahim Jamaï visit him but authorities have refused to grant such a visit. Mr. Jamaï says he wishes to petition the Supreme Court to review its cassation ruling, a procedure under Moroccan law known as a recours en rétractation. In a communication dated February 4, Moulay Hafid Benhachem, Morocco's general delegate for prisons, justified the refusal by saying that Mr. Terhzaz's conviction is final and thus the prison authorities may refuse lawyers' visits to him. This is in absolute contradiction to the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, approved by the General Assembly in 1988. Having defined an "imprisoned" person as person deprived of liberty following conviction for an offense, Principle 18(3) states that
The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
Since November 30, 2009, prison authorities have placed Mr. Terhzaz in a one-man cell and allowed him only minimal contact with other prisoners, although he is permitted family visits. We are unaware of the reasons for imposing this harsh measure on Mr. Terhzaz.
The unfounded nature of the charge, the conduct of the trial, the severity of the sentence, and the harsh conditions of Mr. Terhzaz's incarceration, suggest that the motivations for his prosecution and punishment may lie elsewhere than in the act for which he was formally tried. The military court unjustly convicted him in the face of persuasive evidence that he was merely exercising his freedom of expression while divulging no "national defense secret."
Your Majesty, we note that the Constitution of Morocco gives you in Article 34 the power to pardon prisoners.
72-year-old Kaddour Terhzaz should be released from prison and his conviction overturned.
We thank you for your consideration and welcome your response.
Sarah Leah Whitson
