Morocco/Western Sahara: Torture Allegations Cast Shadow Over Trial

(Tunis) – Morocco’s judicial authorities should ensure that upcoming verdicts in a mass trial are not based on confessions or statements implicating other defendants obtained under torture or other ill-treatment during police interrogations, Human Rights Watch and Amnesty International said today.

The Rabat Court of Appeals is expected to issue its verdict in the trial of 24 Sahrawi defendants shortly after a hearing scheduled for July 18, 2017. The defendants are charged with responsibility for the deaths of 11 security force members during clashes that erupted when the forces dismantled a large protest encampment in Gdeim Izik, in Western Sahara in 2010. The defendants had been convicted in a military trial, but the Court of Cassation, Morocco’s highest court, ordered new civilian proceedings following a new law banning military trials of civilians.

“Morocco took the positive step of ordering new proceedings before a civilian court, but it still needs to ensure no one is convicted on the basis of evidence obtained by torture,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch.

In the previous trial, a military court in Rabat convicted all of the defendants almost exclusively on the basis of their confessions allegedly obtained under torture. Most of the defendants received long sentences and have already served more than six years in prison.

In 2015, a new law ended military trials for civilians, bringing Morocco into conformity with international norms. The following year, the Court of Cassation ordered a new trial of the Gdeim Izik group before the Appeals Chamber of the Rabat Court of Appeals. During the trial, which opened on December 26, 2016, the court agreed to have doctors accredited by the court to perform medical examinations on the 21 imprisoned defendants to assess their torture allegations, refusing the request for the three defendants who are not in custody.

The doctors examined the defendants in February and March, almost seven years after the alleged torture took place. The doctors’ reports, which Human Rights Watch and Amnesty International reviewed, note the types of torture and other mistreatment that each of the defendants says he underwent during his arrest and interrogation shortly after arrest in late 2010. Their allegations include severe beatings, sometimes while suspended by the wrists and knees, sexual assault including rape with an object, and pulling out fingernails and toenails. The medical reports all conclude with the same phrase or a variation: “The symptoms that he manifests at present and what we noted during our examination are not specific to the specific methods of torture alleged.”

“Morocco’s judiciary should not squander the opportunity for justice presented by these civilian proceedings,” said Heba Morayef, North Africa research director at Amnesty International. “The court should exclude these confessions and statements unless they are able to make a persuasive case that they were made voluntarily. No defendant should be penalized because their allegations of torture went uninvestigated for years.”

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Morocco ratified in 1993, requires state parties to abolish and also to prevent torture or other forms of ill-treatment from undermining the right to a fair trial. It gives victims of torture the right to complain to authorities and to receive a prompt and impartial investigation. It also imposes on authorities the duty to investigate any allegation of torture even without a formal complaint.

Countries must ensure that any statement “made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” The UN Subcommittee on Torture has also stressed that courts should not misinterpret the absence of medical evidence as meaning that torture did not occur.

Morocco’s constitution also forbids torture and acts that are “cruel, inhumane, degrading, or that harm one’s dignity.” The country’s penal code criminalizes torture. The code of penal procedure says that confessions obtained through “violence” or “coercion” are inadmissible in court. Nevertheless, Moroccan courts have a record of relying on confessions allegedly obtained under torture or coercion as the main source of evidence for their verdicts against defendants.

The defendants are being tried on charges of forming a “criminal gang” and participating, or complicity, in violence against security forces “leading to death with intent,” among other charges. The charges relate to clashes that erupted during the police’s dismantling of the Gdeim Izik protest camp on November 8, 2010, and in nearby El Ayoun, the main city of Western Sahara.

The UN Committee Against Torture concluded on November 15, 2016, that Morocco had breached the UN Convention against Torture with regard to one of the defendants, Naâma Asfari, on several counts. Responding to a complaint filed by Asfari, represented by the Action by Christians for the Abolition of Torture-France (ACAT), the committee found that the authorities had failed to investigate his allegations of torture and other ill-treatment, to protect him and his lawyer from reprisals, and denied him reparations including medical rehabilitation and compensation. It also said the military court had relied on a statement extracted through torture or other ill-treatment to convict him.

In the current trial, the relatives of the security agents killed during the disturbance are represented as civil parties to the case, although the court has yet to rule on whether they can be part of the proceedings as they were not parties to the earlier case.

“The bereaved families want to see justice done, but justice would be ill-served by relying on evidence obtained through the use of torture or coercion,” Whitson said.