Udenrigsudvalget 2016-17
URU Alm.del Bilag 135
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T
RIAL
O
BSERVATION
R
EPORT
; T
HE
G
ROUP OF
G
DEIM IZIK
BY
T
ONE
S
ØRFONN
M
OE AND
I
SABEL
L
OURENCO
Trial Observation Report
From the proceedings held on March 13th until March 15th, against
the “Group Gdeim Izik” in Salé, Morocco
Image published in Moroccan media of “Group Gdeim Izik” inside of the “glass-cage” on
the 26th of December 2016
Executive summary
Our names are Tone Sørfonn Moe (Norway) and Isabel Lourenco (Portugal, Isabel Maria
Goncalves da Silva Tavares Lourenco). We are international observers attending the trial
against the Group Gdeim Izik at the Appeal Court of Salé. We are accredited by Fundación
Sahara Occidental. The overall objective of our attendance is to evaluate whether the trial
against the group is a fair trial, according to Moroccan and international standards. We
decided to present this joint report on the proceedings of the 13, 14 and 15th of March due to
the fact that we had to compare notes since the official translation of the trial in English,
Spanish and French does not coincide, and one of our own translators was forbidden to enter
the court house. This report is based on our attached previous reports.
When assessing this trial observation, we have evaluated the proceedings on the basis of a
political trial; assessed when proceedings are brought up for reasons of political persecution
(political trials) rather than to impart justice, and when it is a great risk that the proceedings as
a whole may be unfair.
On the 17th of February 2013, the Military Court in Rabat sentenced a group of 25 Saharawi
activists to harsh penalties. The
Court de Cassation
found the decision from the Military
Court of Rabat null and void, and referred the case to Court of Appeal in Salé. The Court was
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on the 26th of December 2016 to address the appeal of the case of these 24 men. One of the
original 25 are sentenced to life
in absentia.
The trial on the 25th of December was postponed
to 23th of January 2017. After two days of proceedings, the case was on the 25th of January
2017 postponed to March 13th. On March 15
th,
the proceedings were adjourned until March
20
th
.
On the 25th of January, the court ruled that the Court of Appeal in Salé was competent and
had necessary jurisdiction; that the prisoners were to be given medical examinations, both
physical and mental examination; that the defence could present all of the witnesses,
excluding the Moroccan authorities as well as an a ex-minister and a former MP that had been
in negotiations with the Gdeim Izik dialogue committee. Thus, the police and gendarmerie
officers who drafted the “minutes” (documents relating to the arrest and custody), were
convened. Furthermore, the court ruled to postpone the discussion upon partial status for civil
party (the representatives of the victims). None of the prisoners were granted provisional
release.
During the proceedings held in January, the presiding judge
de facto
undermined both the
Torture Convention and the CAT decision (CAT/C/59/D/606/2014) on the case of Eênaama
Asfari. There seems to be a lack of willingness within the Moroccan legal institutions to
respect its international commitments.
The proceedings commenced on March 13
th
at the Appeal Court of Rabat. The medical
examinations that were performed, by Moroccan doctors that are public servants, have not yet
been presented at the court, and although the defence protested, the proceedings commenced
without the reports on the medical examinations.
During the proceedings held from March 13
th
to the 15
th
, several of the accused gave their
testimonies to the court. The accused declared that they were arrested due to their activism for
political and human rights in Western Sahara. They furthermore declared that they all had
signed declarations that they did not know the content of, whereas the declarations were
falsified and that they were charged with a “made up case”. Sidi Abderahmane Zeyou stated
that the Gdeim Izik camps, and the events following, are linked to the political conflict in the
occupied territories in Western Sahara. Zeyou furthermore stated that the investigations after
the dismantlement of the camp, was not set forward to reach the truth, but to revenge the
political activism. He stated that those who killed the victims are responsible, and that the
Moroccan authorities who portray the victims in their propaganda towards the defendants, are
the ones responsible. Several of them claimed to have been tortured while being interrogated,
and all of them declared themselves innocent on all charges, and that they had no knowledge
of the content of the declarations which they were forced to sign.
The burden of proof will be a crucial factor during the commencement of the proceedings on
March 20th. The presiding judge is obliged to uphold this principle, as the burden of proof
lays with the prosecution. As such, an accused can only be found guilty, and thus sentenced, if
the question of guilt is proven beyond any reasonable doubt.
We strongly recommend that representatives of the international community (NGOs,
jurists, deputies or government officials) should be present on the scheduled appeal on
the 20th of March 2017.
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T
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BSERVATION
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EPORT
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M
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I
SABEL
L
OURENCO
List of Content
Executive summary
1. Introduction
2. The prisoners and the charges against them
1
4
5
4. The proceedings against the Group Gdeim Izik at Court of Appeal in Salé held on the
13th of March until the 15th.
7
4.1. The proceedings on the 13
th
of March at the Court of Appeal, Salé.
4.2. The proceedings on the 14
th
of March at the Court of Appeal, Salé.
4.3. The proceedings on the 15
th
of March at the Court of Appeal, Salé.
5. Principles for trial observation
5.1. The Trial Observation Manual
8. The fairness of the trial
8.1 The right to equality before the law and courts
8.2 Independence and impartiality
8.3 Right to defense and right to be informed promptly of the charge
8.4 The right to be tried without unfair delay
8.5 The right to a public hearing
8.6 Right to interpretation
8.7 The principle of equality of arms
8.8 Right to call and examine witnesses
8.9 The presumption of innocence
7
9
12
16
16
17
17
18
18
19
19
19
20
20
21
8.10 The right not be compelled to confess guilty or to testify against oneself and exclusion
of evidence elicited by illegal means, including torture or ill-treatment.
21
8.11. Circumstances surrounding the trial
9. Conclusion and last remarks
22
23
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1. Introduction
In 1963, Western Sahara was listed as a non-self-governing territory by the United Nations. In
1966 the United Nations General Assembly adopted its first resolution (UN General
Assembly, 1966, Resolution 2229 (XXI)) on the territory, urging Spain to organize, as soon as
possible, a referendum on self-determination under UN supervision.
In 1975, the International Court of Justice (ICJ) rendered an advisory opinion on the Western
Sahara question, concluding by 14 to 2 votes that while there had been certain pre-colonial
ties between the territory of Western Sahara and Morocco, these ties did not imply
sovereignty. Shortly thereafter, on the 6th of November, Morocco occupied and later annexed
Western Sahara, through the famous “Green march”. This constituted an act of aggression in
violation of the UN Charter. The same day, the UN Security Council, in Resolution 380,
called upon Morocco “immediately to withdraw all the participants in the march.”
Morocco did not withdraw the participants. Thus, Western Sahara has been under occupation
by Morocco since 1975. Morocco and Western Sahara, lead by the Saharawi liberation
movement Front Polisario, were in an armed conflict until 1991, when a peace agreement was
set into place. Today, Western Sahara is divided in half by a 2200-kilometre wall, built by the
Moroccan army. The occupied areas are controlled by Moroccan authorities, where the other
half is controlled by Polisario. The most important aspect of the peace agreement, a
referendum on self-determination for the Sahrawi people, has never been implemented.
The Gdeim Izik was a provisional protest camp in 2010 situated outside of El Aaiún, the
capital of Western Sahara. The camp demanded respect for their most basic human, social and
economic rights. The “Group Gdeim Izik” relates to the imprisonment of 25 Saharawis
arrested prior, during and after the dismantling of the silent protest camp Gdeim Izik on
November 8th of 2010.
Moroccan authorities held the areas surrounding the camp under surveillance from the
beginning. Since October 12th 2010, armed trucks, helicopters and army vehicles circulated
the camp areas, and authorities constructed roadblocks and checkpoints around the camp. On
the 24th of October, the Moroccan authorities opened fire on a vehicle trying to enter the
camp site with food supplies. A 14-year-old boy (Nayem Elgarhi) died. He was buried in
secret by the Moroccan authorities. His family still demands that the officers who shot Nayem
shall be tried.
The Dialogue Committee remained, despite the violent clashes, in dialogue with the
Moroccan authorities. On November 8th, around 6:30am, the Moroccan military broke their
promise and attacked the Gdeim Izik camp. Camp residents reported the use of rubber bullets,
real bullets, hot-water cannons, tear-gas, truncheons and stones. As panic took over, clashes
between the army and the protesters ensued, leading to casualties and injuries on both sides.
Street riots broke out in several cities of Western Sahara.
In the weeks leading up to the November 8th break-down, Morocco refused foreign
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politicians, NGOs and media access to the camp, creating a full information black-out.
Therefore, an exact figure on the number of victims does not exist, as independent observers
were not allowed to access the area. It is likely that around 11 Moroccan police officers were
killed.
During and after the violence on November 8th 2010 Moroccan security officials proceeded
to arrest hundreds of Saharawi’s. Many prisoners remained in custody longer than 48 hours,
and were held without being charged over months before released on provisional release.
The Group of “Gdeim Izik” remained in jail, and were transferred to Rabat for investigation
by the Military Court of Rabat in 2013.
2. The prisoners and the charges against them
The accusations are related to (1) being part of a criminal organization, (2) violence towards
police officers, (3) intentional/unintentional murder. The accusations are based on article 129,
130, 267, 271, 293 and 294 of the Moroccan penal code. If sentenced after Article 267 of the
Moroccan penal code, the sentence is death penalty.
The victims, that the “Group Gdeim Izik” are accused of murdering, are 11 policemen who
died during the dismantlement of the camp site and during the riots that broke out in El Aaiún.
All defendants maintain their innocence, professing that the real reason behind their detention
is their activism for human rights, anti-discrimination and/or respect for the Saharawi
people’s right to self-determination.
The accusations and charges are listed below.
1.
Sidi Abdallah Abbahah (B´hah), born 1975. Sentenced to life imprisonment by
the Military Court in 2013.
Accused of participation in and aiding a criminal
organization; violence against public forces with the cause of death; with intent to kill
and desecration of the corpses.
2.
Mohamed El Bachir Boutinguiza, born 1974. Sentenced to life imprisonment by
the Military Court in 2013.
Accused of participation in and aiding a criminal
organization; violence against public forces with the cause of death; with intent to kill
and desecration of the corpses.
3.
Mohamed El Ayubi, born 1956. Sentenced to 20 years under provisional release
due to his debilitated health condition by the Military Court in 2013.
Accused of
participation in and aiding a criminal organization; violence against public forces with
the cause of death, with intent to kill.
4.
Ettaki Elmachdoufi (Machdoufi Ettaki), born 1985. Sentenced to time served by
the Military Court in 2013.
Accused of participation in and aiding a criminal
organization; violence against public forces with the cause of death, with intent to
kill.
5.
Mohamed Bani, born 1969. Sentenced to life imprisonment by the Military Court
in 2013.
Accused of participation in and aiding a criminal organization; violence
against public forces with the cause of death, with intent to kill.
6.
Abdeljalil Laaroussi, born 1978. Sentenced to life imprisonment by the Military
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Court in 2013.
Accused of participation in and aiding a criminal organization;
violence against public forces with the cause of death, with intent to kill.
7.
Abdulahi Lakfawni, born 1974. Sentenced to life imprisonment by the Military
Court in 2013.
Accused of participation in and aiding a criminal organization; and for
violence against public forces with the cause of death, with intent to kill.
8.
Ahmed Sbaai, born 1978. Sentenced to life imprisonment by the Military Court
in 2013.
Accused of participation in and aiding a criminal organization; violence
against public forces with the cause of death, with intent to kill.
9.
Sid´Ahmed Lemjeyid, born 1959. Sentenced to life imprisonment by the Military
Court in 2013.
Accused of participation in and aiding a criminal organization;
violence against public forces with the cause of death, with intent to kill.
10.
Brahim Ismaili, born 1970. Sentenced to life imprisonment by the Military Court
in 2013.
Accused of participation in and aiding a criminal organization; violence
against public forces with the cause of death, with intent to kill.
11.
Mohamed Embareh Lefkir, born 1978. Sentenced to 25 years by the Military
Court in 2013.
Accused of participation in and aiding a criminal organization;
violence against public forces with the cause of death, with intent to kill.
12.
Larabi El Bakay, born 1982. Sentenced to 25 years by the Military Court in 2013.
Accused of participation in and aiding a criminal organization; violence against public
forces with the cause of death, with intent to kill.
13.
Enaâma Asfari, born 1970. Sentenced to 30 years by the Military Court in 2013.
Accused of participation in and aiding a criminal organization; violence against public
forces with the cause of death, without intent to kill.
14.
Cheikh Banga, born 1989. Sentenced to 30 years by the Military Court in 2013.
Accused of participation in and aiding a criminal organization; violence against public
forces with the cause of death, without intent to kill.
15.
Mohamed Bourial, born 1976. Sentenced to 30 years by the Military Court in
2013.
Accused of participation in and aiding a criminal organization; and for violence
against public forces with the cause of death, without intent to kill.
16.
Mohamed Lamin Haddi, born 1980. Sentenced to 25 years by the Military Court
in 2013.
Accused of participation in and aiding a criminal organization; violence
against public forces with the cause of death, without intent to kill.
17.
Sidi Abderahmane Zayou, born 1974. Sentenced to time served by the Military
Court in 2013.
Accused of participation in and aiding a criminal organization;
violence against public forces with the cause of death, without intent to kill.
18.
El Houssin Ezzaoui, born 1975. Sentenced to 25 years by the Military Court in
2013.
Accused of participation in and aiding a criminal organization; violence against
public forces with the cause of death, without intent to kill.
19.
Abdullahi Toubali, born 1980. Sentenced to 25 years by the Military Court in
2013.
Accused of participation in and aiding a criminal organization; violence against
public forces with the cause of death, without intent to kill.
20.
Deich Eddaf, born 1978. Sentenced to 25 years by the Military Court in 2013.
Accused of participation in and aiding a criminal organization; violence against public
forces with the cause of death, without intent to kill.
21.
El Bachir Khadda, born 1986. Sentenced to 20 years by the Military Court in
2013.
Accused of participation in and aiding a criminal organization; violence against
public forces with the cause of death, without intent to kill.
22.
Hassan Dah, born 1978. Sentenced to 30 years by the Military Court in 2013.
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Accused of participation in and aiding a criminal organization; violence against public
forces with the cause of death, without intent to kill.
23.
Mohamed Tahlil, born 1981. Sentenced to 20 years by the Military Court in 2013.
Accused of participation in and aiding criminal organization; violence against public
forces with the cause of death, without intent to kill.
24.
Mohamed Khouna Babait, born 1981. Sentenced to 25 years by the Military
Court in 2013.
Accused of participation in and aiding a criminal organization;
violence against public forces with the cause of death, without intent to kill.
The last of the original “Group Gdeim Izik”, is
Hassana Alia, born 1989. Sentenced to life
in absentia
by the Military Court in 2013.
Hassana was granted political asylum in Spain.
Hassana Alia was not summoned to the proceedings at the Court of Appeal in Salé.
4. The proceedings against the Group Gdeim Izik at Court of
Appeal in Salé held on the 13th of March until the 15th.
4.1. The proceedings on the 13
th
of March at the Court of Appeal, Salé.
The proceedings against the ”Gdeim Izik” group commenced on the
13th of March at 10:20
am.
The defence started the proceedings although they claimed that the proceedings could not
commence until the reports from the medical examinations were presented as they were
crucial for the further assessment of evidence. The crucial evidence against the group Gdeim
Izik is confessions retrieved through torture and is therefore illegal evidence, as set forward in
Article 15 of the Convention Against Torture. The presiding judge ruled to continue the
procedures without the reports.
Witnesses who had been permitted were present in the courtroom, but were not questioned.
There were several eyewitnesses, as well as policemen who had summarized the confessions
and documents around the group's arrest.
The procedures continued with lodging the evidence in the case. The evidence case was
transferred from the Military Court of Rabat to the Court of Appeal in Rabat for a new
evaluation after a referral by the Court d´Cassation. There were confiscated 19 telephones, 3
axes, and 4 knives / Machetes and one CD. There was discussion about whether the CD
should be submitted as evidence. The defence claimed that the CD was not part of the list of
evidences submitted to the defence, and that the CD was not part of the confiscated evidence,
and was made after the dismantlement of the camp and the accused crimes.
The court decided that the contents of the CD should be portrayed in front on the court, but
did not admit the CD as part of the evidence in the case postponing this decision to a latter
time. The content was a video of Gdeim Izik camp, where one could see people throwing
stones and carrying knives. The video was cut, and manipulated with French text. The film
that was portrayed was dated to November 8
th
at 08:48, whereas the alleged crime is
committed during the dismantlement at 06:30 am. The video portrays the camp as a violent
resistant camp, and not as a peaceful protest camp consisting of families. The video is not yet
admitted into evidence.
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Mohammed Ayoubi, who at the previous rounds had been hospitalized, was present in the
courtroom. Ayoubi´s case was admitted to the group case. Defence attorney Lilly stood beside
Mohammed Ayoubi and acted as translator, where Ayubi only speak Hassania.
Ayoubi has both kidney failure and heart problems. Ayoubi was the first defendant to be
questioned. He had difficulty walking and has difficulty with both speaking, and with lifting
his arms after the torture he was subjected to. Ayoubi explained that." I came to find my bread
but the Moroccans only gave me beatings", where he stated that he has not killed anyone; that
he is only a poor man and not a politician. He stated to be a victim of the authorities that had
destroyed his trust, and hurt him and beaten him.
He testified to how he had been awoken at 6:30 am, November 8
th
2010, when police
overpowered him in his tent, and raped him. He was held in a vehicle and taken to an
unknown location. He was later taken to hospital because he lost so much blood, after being
brutally raped. Ayoubi testified to how he had been tortured at the military headquarter, kept
handcuffed and blindfolded, forced to drink urine and eat feces, while he was naked on the
floor covered in his own feces. He testified to how he, blindfolded and with his hands cuffed,
whilst military personnel stood on his chest and punched his kidneys, had signed confessions,
where the guards took his hand and placed his fingerprint on papers which he neither saw, or
were read to him. Ayoubi urged that his signature was a zero.
In Ayoubi's declarations he confessed, (that according to his testimony were obtained under
torture), to running over several policemen with his car. Ayoubi said that he could not have
run over a policeman with his car, when all he
had was a donkey and it’s impossible to drive a
donkey. When asked about his stay in the Gdeim Izik camp he stated to have lived in the
camp for a month, and that he went because others went and he needed food. When asked
who gave him this food he stated that it was Saharawi people, and that everybody shared what
little they have, and that he is eternally grateful to the people who gave him food. When asked
who provided the finance for the food Ayoubi answered that he doesn’t know and does not
care; I ate the bread that people gave to me. He stated that Morocco gave me nothing; only
hurt me. He stated that he remained in the camp because the people in the camp helped him,
the Moroccan government only gave me sufferance and pain, he stated. The prosecution
urged Ayoubi to answer who gave him food, and Ayoubi answered “I am almost dead. Why
did you let me out? I have nothing to live for. You should just put me back in, because I
already live in the biggest prison in the world”.
The defence claimed that the Civil Party was not allowed to ask questions, where they were
not a formal part in the proceedings, and that they did not have the right to ask the accused
any questions. The defence also argued, when the civil party asked questions related to the
film, that the film was not part of the evidence file. The preceding judge refrained from ruling
upon the matter.
The civil party could ask questions. Protests broke out in the courtroom from the group
Gdeim Izik when one of the lawyers for the civil party asked how Ayoubi could be raped in
the tent, when he had just testified that his tent was so small that his legs were outside, and
why he had not resisted against being raped. These questions were asked while several of the
Moroccan lawyers from the civil party laughed. The accused in the glass-cage shouted that
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the Moroccans lawyers was laughing about the sufferance of the Saharawi people.
The court commenced with interrogating Mohamed Bani. Bani started his testimony by
stating that he had been tortured, where the scars are still visible. He stated that he is a
Saharawi from Western Sahara, and he demanded to be trailed in front of a court that
Polisario Front and Morocco agreed upon. He stated that he does not recognize this Moroccan
courthouse. He stated that he had visited the camp Gdeim Izik twice to visit his mother, his
sister and his brother. Bani stated that his family had joined the camp because they were
looking for jobs, and they had social and political demands.
Mohamed Bani testified to how he in the morning of November 8th, at 6:30 am, had been
abducted when he was on his way to Laayoune to drive his two sons to school. He had tried to
leave the camp on November 7th, but had been stopped by the police, who directed him back
to the camps. On the way home in the morning on November 8th; Bani stopped the car when
his car window was smashed. He then saw out the window, and was hit by a stone in the head
and fainted. He woke up later, handcuffed and surrounded by military personnel. He was
taken to an unknown location, whilst constantly kicked and beaten. He was taken to the police
station and tortured together with five others he did not know. He was later transported from
Laayoune to Salé by plane, where he was captured along with three others from the group
Gdeim Izik. He urged that he was constantly being bitten and spanked by the military forces.
He was forced to sign documents blindfolded, where fingerprints were taken by force. He
signed documents which he had neither seen nor knew the content of. The prosecution asked
questions about movements in the camp on the night of November 7
th
, where Bani stated that
everything was peaceful and normal. The prosecution asked him if, according to the
declarations, he could tell about the people terrorizing the inhabitants of the camp, and
stopping them from leaving, on November 7
th
. Bani claimed that this declaration is falsified;
that he had never said it, and that he never witnessed anything like that. He was asked if he
knew some of the defendants before the event, and if he had received orders to attack the
public officials from Bourial. Bani stated that he didn’t know any of the fellow detainees
before they met in prison.
The procedures were adjourned to the following day at 08:40 pm.
4.2. The proceedings on the 14
th
of March at the Court of Appeal, Salé.
The proceedings against the Group Gdeim Izik commenced on the 14th of March at 10:40 am.
The court proceeded with the interrogation of the accused. The first to be questioned was
Machdoufi Ettaki. Ettaki was by the military court sentenced to time served, and is therefore
not imprisoned with the rest of the group. Ettaki started his testimony with stating that, in the
name of Allah, I greet the Polisario Front, and give my solidarity. The judge asked Ettaki to
take the politics out of the courtroom, where Ettaki answered that he considers himself as a
Saharawi from Western Sahara; we are trailed in “made up cases” by the Moroccan
occupation. Ettaki stated that, as every inhabitant in Laayoune and every Saharawi, I had a
tent in the Gdeim Izik camp. He told how he came to the camp with his family, and that he
wasn’t influenced by anyone; as every Saharawi he had social and political demands. He
explained how the basis for the camp was the people’s sufferance,
and their demands for basic
human rights. He urged that the two are linked together; one cannot distinguish between the
reason for the camp and why people went there. Ettaki stated that "it’s the people of Western
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Sahara that has suffered for more than 40 years, and that we have never killed anyone; and
that it is Morocco, who has occupied the territory for over 40 years, who must be punished for
our sufferance". He explained how the people lived peacefully in the camp alongside one
another like neighbours, and that they protested against inhumane living conditions in the
territory. He explained how, when the Moroccan military forces attacked the camp, which
consisted of children, elderly, women, handicapped and men, the forces did not give the
people time to evacuate before they attacked. It was early in the morning when a helicopter
came, and by one notification told us to evacuate the camp, where Ettaki claimed that the
camp was attacked within 5 minutes.
When the judge asked Ettaki if he had killed someone with a knife; Ettaki responded that we,
the Saharawi’s from Western Sahara, are trailed in "made up cases" by the occupying power
Morocco. He explained how the guards had force his finger down on a paper, whilst the
confession was
covered by another paper. The judge stated that it’s hard to make a
fingerprint, whilst having your hands handcuffed behind your back; Ettki said: "I was
abducted, and tortured for five days, without my family knowing where I was". He stated that
when he came to the military court; he did not know that he was talking to an investigative
judge. He explained how he was in a very bad shape; that he could barely talk due to the
torture inflicted upon him, and that a guard had forced his eyes open. He claimed that he was
being tortured inside of the court facilities, and was covered with blood.
He explained how, when evacuating from Gdeim Izik camp on November 8th, when military
forces attacked the camp, he helped a woman along the road. Whilst helping the woman, he
was attacked by 10 military personnel, who arrested him. He testified to how he was beaten
inside the car and that they transported him to the military headquarters in Laayoune, where
he was held in a cell for five days, blindfolded and handcuffed, and repeatedly punched and
kicked. He had no access to toilet and urine and feces were thrown on them. The confessions
were taken while he was blindfolded and his hands cuffed; and guards forced his fingerprints
down to papers; which he did not know the content of.
Next who was questioned was Mohamed El Bachir Boutinguiza. When he was asked how he
reacted to the accusations he replied that "I was arrested and imprisoned for my political
opinions about what Morocco does in Western Sahara". When the judge asked him to stick to
the matter, El Bachir said that he does not trust the Moroccan justice system, and claimed that
“I have been bitten by a snake earlier”. El Bachir told that this is a war against the Saharawi,
dated back to 1975. He stated that he is here because of the Saharawi case, that he was
abducted, and that 15 of his friends are still missing. He told that at an age of 16, he was
imprisoned in the black prison Meguna. El Bachir indicated that the Fourth Geneva
Convention had to be implemented; and that the occupation forces have abducted him from
his country, and that the Kingdom of Morocco have no right to judge him.
Boutinguiza explained how he, on November 19th, was kidnapped by masked men who were
heavily armed. "They tortured me, clothed me naked and urinated on me, they raped me from
behind" and they put his hands in handcuffs and blindfolded him. He told how he was
transported from the police station, to the prison where the torture commenced. He was
transported to the military court, where he told the judge that he needed to go to the hospital.
When the judge asked him questions relating to the confessions, where he testified to run over
military forces and urinated on the corpses; he said that the confessions are made up stories;
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they invent
a story and take you into custody. ”I am used to this –
I am here because of my
political believes”, he said. He urged that he had nothing to do with the reports, and that the
international community must intervene. He stated that a lot of people died this day; and those
who committed the crimes are walking freely in the streets of Laayoune; I am innocent; I am
captured because of my political opinions.
He claimed that he was not in the camp when it was destroyed; where he could not have
committed the crime because he was in Laayoune in a friend's wedding. When asked if
anyone told him to go to the camp, Boutanguiza answered that "this is our culture; our culture
is to live in tents in a calm atmosphere. The tent is the symbol." When asked if he knew about
the dialogue committee he stated that everybody know this committee, and that he wished that
he was a part of it.
Boutanguiza refused to answer questions from the civil part, and stated that the civil part is
not a formal part of the proceedings, and that they have already declared me guilty, depriving
me of the principle of innocence. He stated that he respects the attorneys, but not when they
are trying to cover up crimes committed by the Moroccan forces in the occupied territories in
Western Sahara towards Saharawi. When asked questions about the movie, Boutanguiza
declared that he did not recognize anything in the movie, and that the movie is manipulated as
a part of the fabricated story.
Mohammed Thalil was the third who was questioned. Thalil commenced his testimony by
declaring his respect to the president of Polisario Front Brahim Ghalil, and by asking for a
minute of silence for the deceased President of the Polisario Front, Mohamed Abdelaziz.
Thalil explained how he for his political opinions, and as a member of the Polisario Front, had
been abducted, tortured and imprisoned for 6 years. Thalil asked for a translator, because he
speaks Hassani, as he does not speak Moroccan Arabic, as he is a Saharawi. He claimed that
he did not recognize Morocco, which occupies his country, and that he only recognizes
Polisario. He urged that I'm not a murderer, I'm here because of my political opinions. When
asked where he lived Thalil stated that he lives in Western Sahara, but when my country
becomes independent I can live wherever I want, and urged the fact that he is a Saharawi and
not Moroccan.
Thalil explained how he never went to the camp and was in Laayoune during the events, but
that he wishes for self-determination for the people in Western Sahara. He claimed to have
been arrested in Laayoune for being a member of the Polisario Front. Thalil repeatedly tried
to explain the reason for his arrest, but was constantly stopped by the prosecution who raised
to his feet and knocked on the microphone. Thalil stated; you claim that this is a fair trial, but
this Is all a theatre, I don’t care about theatre. I want to tell the truth about why I am here, in a
courtroom inside of a country who has occupied my country. You can arrest all Saharawi’s; it
will never change my beliefs. Morocco has occupied Western Sahara for over 40 years, and I
will always refer to you as an occupier.
The presiding judge asked him to take politics out of the room. Thalil answered that "you’re
only president in this room; in this room I will respect you, but the only leader I know is
Brahim Ghalil in Polisario Front". Thalil explained how he was detained together with Bachir
El Khadda and Hassan Dah on December 5th in 2010. Dozens of policemen’s surrounded the
café, and one asked
in hassania “where is Thalil”, and when he answered he got a bag over his
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head and was placed in handcuffs. They hit us in the car, and they pulled out my nails. He
told, that when interrogated, they asked him if he was arrested in “Guerguerat”, where Thalil
pointed towards the preceding judge and said; “you know where that is! Its where the
Moroccans fled from the Polisario Front”. Thalil complained on the translator numerous
times, and claimed that he did not trust the translator, as he is Moroccan.
He claimed that he was never asked about Gdeim Izik when he was questioned and was only
questioned about Polisario Front and his trip to Algeria in august 2010, and that he has never
read the content of the declarations, which he was forced to sign under torture, where the
guards had forced his fingers down on a piece of paper. He explained how he came from
Laayoune to Rabat by plane, with a bag over his head whilst handcuffed. He told how the
personnel wore masks, and when placed in front of the investigative judge he had denied all
the charges.
When the prosecution asked him if he had been arrested before, Thalil stated “this is the third
time. They claim that I have done this or that, while my only crime is my fight for self-
determination for Western Sahara.”
Thalil stated that he has never hurt anyone, and that he
has no problem with people, only with the Moroccan regime and the dictator. Thalil
furthermore explained that he had travelled with a delegation in august 2010 to Algeria,
which had nothing to do with the Gdeim Izik camp. Thalil repeated numerous times that he
had never been to the camp, and had nothing to do with it.
When the Civil party commenced their questioning Thalil mimicked that he would not
answer, and remained silent.
The court adjourned at 07:40 p.m.
4.3. The proceedings on the 15
th
of March at the Court of Appeal, Salé.
The court commenced on March 15th at 10:15 am, with interrogating Larabi El Bakay.
Mohammed El Bakay started with sending his regard towards the defence, the civil party, the
presiding judge and the international observers present at the trial. He thereafter plead not-
guilty in every charge brought against him. He told about how he had built his tent in the
Gdeim-Izik camp, where he had social demands, where the natural resources are stolen from
Western Sahara, which he has never benefited from. He urged that the camp was a symbol of
peaceful demonstrations.
He claimed that there was no official organization inside the camp, whereas the camp had no
hierarchy, and that he is sure that the Moroccan authorities already had the intel. He stated
that “I am a Saharawi, I and I will not let my Sahrawian identity be questioned; where the
people in the camp of Gdeim
Izik had social demands. “ The prosecution asked if El Bakay
had received financial aid, or orders from someone, whilst staying at the camp; El Bakay
answered that the nature of the Saharawis is to help others in need; and that he never received
orders from anyone.
El Bakay explained how he was part of the dialogue committee which was in negotiations
with the Moroccan government. He explained how they had reached an agreement upon
social demands, but never on evacuation. The agreement was never set into place due to the
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fact that not all parties agreed to the content. El Bakay explained how the camp grew in size,
and that the governmental officials had told them to count the people in the camp. When
asked about the delegation that travelled to Algeria, El Bakay answered that the camp Gdeim
Izik was not a plan from the outside, but was a force from inside where people had social
demands. When asked about whether Eenama Asfari wanted to politicise the camp, El Bakay
told that the governmental officials had told that Asfari wanted to politicise the camp, whilst
“they only had social demands”.
El Bakay explained how the military surrounded the camp ever since the first tent was set into
place, where the military forces made a wall around the camp, and made one gate. He
condemned the intervention from the military forces, where the people in the camp (i.e. there
was 6000 tents; 40 000 people), were given 10 minutes to evacuate. When the defence asked
El Bakay what he meant with “chaos” during the dismantlement;
if this meant that the public
attacked the forces or if the military attacked the people; the court refused to ask the question.
He told that he had been woken up by a helicopter telling people to evacuate the premises. He
walked towards his car, and brought with him several women, and carried an old woman to
his car which had fainted due to the teargas that the Moroccan authorities had thrown at the
camp. He told that the majority of the inhabitants, mostly women and children, fainted from
the teargas.
The prosecution asked El Bakay about the declarations where he stated that on the evening of
November 7
th
, he had conferred with the leaders in the camp (i.e. some of the other accused as
Eenama Asfari, Abdallajhi Laroussi and Check Banga), and decided to attack the military
forces the following day, and were given orders by Asfari to attack until death. El Bakay
claimed that he had not taken orders from anyone.
El Bakay told about, on the day of his arrest in Dakhla on September 9
th
in 2012, that he was
interrogated and solely asked three questions; about his relationship with Eenama Asfari, and
questions about some images. El Bakay stated that he was treated nicely by the military
forces, and during the interrogations. He claimed that he has never seen the declarations, and
that the content remained unknown until this day. He signed them without reading them. The
prosecution general told El Bakay to sign, and then he would be released; “So I signed” he
stated. He stated that it was impossible for him to imagine at that time that the government
would frame him, and sentence him based upon a “made up case”.
The defence protested after the interrogation since El Bakay had been placed on a chair with a
name tag that stated “terrorist” on the
back, whilst the interrogation was broadcasted on
national television.
Mohammed Lamin Haddi was the next to be questioned. He commenced with stating that this
Moroccan court house does not have the legitimacy to judge us. Haddi had prepared a
declaration of his own, and wanted to read it up. He declared that he had been present in the
Gdeim Izik camp, due to his political activism and his human rights activism. The day of the
dismantlement of the camp Haddi was in his house in Laayoune, together with a journalist
and some other human rights activists. He explained how he witnessed the protests in
Laayoune, where civilians were killed by the Moroccan forces, women were raped, houses
were destroyed and hundreds of Saharawi were arrested. People were shot in the street; and
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two of my friends died that day, he said.
Haddi explained how he was arrested while accompanying two doctors from the “Doctors
without borders” in Laayoune on November 20th, 2010. Haddi explained that he was
transported by the police to
the military headquarters where he was tortured; and stated “I still
suffer under torture”. He explained that they interrogated him under torture, and never asked
any questions about the camp Gdeim Izik, only about his trip to Algeria and about
international observers coming to the occupied territories of Western Sahara. He claimed that
he was forced to sign declarations without knowing what was written. He explained how, at
the Military Court, he asked the judge to witness his scars, and document that he was covered
in blood; whereas the judge answered that he was not a doctor. He claimed that the clerk that
wrote the minutes was the same person which had tortured him inside of the court facilities,
recognizing him by his perfume.
He was by the prosecution asked about his trip to Algeria in august 2010, where a delegation
of 72 people had travelled to an international forum to discuss human rights. He denied that
the trip to Algeria and the following Gdeim Izik camp was linked in any way. He was asked
questions about Eenama Aasfari based upon the declarations, which Haddi refused to answer
due to the fact that the declarations are retrieved under torture, and falsified. He claimed that
Asfari was arrested on November 7
th
, and it was therefore impossible that Asfari had
committed the crimes he is accused of on November 8
th
.
Mohammed refused to answer questions both relating to the declarations retrieved under
torture, and questions based on the film portrayed in the courtroom on March 13
th
, due to the
fact that the film is not a part of the evidence in the case, and that the film was not legitimate.
When the Civil Party commenced with the questioning Mohammed Lamin Haddi refused to
answer. He proclaimed that the civil party did not have the legitimacy to ask him questions.
He used taped to form a cross over his mouth, as a symbol of a peaceful protest against the
questions raised by the civil party. The civil party commenced with asking 57 questions,
where Haddi evoked his right to remain silent. When the defence wanted to ask questions, the
presiding judge refused to ask the questions, due to the fact that the question had already been
asked. The civil party had thus covered every aspect that was possible to cover, prohibiting
the defence from questioning the accused.
Sidi Abderahmane Zeyou, released with time served by the Military Court in 2013, was
thereafter questioned by the court. Zeyou approached the witness stand after putting on the
Daraá, the traditional Saharawi costume, whilst chanting that the only solution is self-
determination. Zeyou started his declaration by expressing his condolences to the families of
the victims, and everyone who was arrested. He stated his condolences to all the Saharawi’s
who died during the dismantlement of the camp, and urged that there should not be
discrimination between the victims. He demanded investigation into the killing of a 14 year
old boy, who was killed by the Moroccan forces surrounding the Gdeim Izik camp on the 24
th
of October.
He declared himself innocent on all charges, and asked for the possibility to explain himself.
Zeyou was repeatedly interrupted by both the Civil Party, the prosecution and the presiding
judge. Zeyou stated that the Gdeim Izik camps, and the events following, are linked to the
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political conflict in the occupied territories in Western Sahara. He urged that the idea of the
provisional camp was not a product of the trip to Algeria, but was a result of the repression
that the Saharawi’s live under. He was again
interrupted by the prosecution and the civil
party. Zeyou demanded the right to both defend himself and explain himself towards and in
front of the ones who want to incriminate him. He stated that "our political opinions deprive
us of our social rights". The civil party interrupted again, declaring that Zeyou cannot talk
about the Saharawi’s in general, but must address the charges brought against him.
The Civil Party stated; "he tries to protect murderers. He is a murder and he urinated on the
corpses". Protest raised at once in the courtroom, and the accused tried to leave the
courtroom, due to this statement. The judge calmed the courtroom, and stated that we are not
interested in their opinion on guilt, and that the accused are innocent until proven otherwise.
The civil party claimed that they, as advocating on behalf of the victims, had the right to say
whatever they want. The defence urged the court to protect the defendants, and to remind the
court that the accused are in the care of the court whilst being interrogated; and that the court
must protect the defendants from being called a murderer. The defence furthermore
highlighted that Zeyou was not charged with murder, nor molesting of corpses.
The prosecution answered that the case is still in an investigation period, and that both the
charges and the sentence can be altered by the court. The defence urged that the right to an
appeal is universal, and that no one can be harmed by their appeal, and the court could not
alter the charges against the accused, and that the accused, who has been released, must
remain in freedom.
The examination advanced, and Zeyou stated that the investigations after the dismantlement
of the camp, was not set forward to reach the truth, but to revenge the political activism. He
stated that those who killed the victims are responsible, and that the Moroccan authorities
who portray the victims in their propaganda towards the defendants, are the ones responsible.
He urged that he was not at the camp site, and that he was not involved with the crime, and
that he was, at the time of the event, at home in his house in Laayoune. He stated that all the
declarations were retrieved under torture, and that he had been forced to sign them with his
fingerprint. He claimed that he was never interrogated about the Gdeim Izik, and that he has
evidence that support the fact that the accusations brought against him are not based on a
desire to find the truth, but vengeance. He explained how there had been casualties on both
sides; both from the official authorities and from the civil population; and that they are all
victims; but the people are told lies.
Zeyou told about how the Saharawi people fought a peaceful fight since 1991, and that the
Saharawi’s do not believe in violence. What
happened in the Gdeim Izik is a catastrophe he
claimed; they are trying to help the security forces by putting the blame on other parties.
He explained that the camp was surrounded, and on October 22th the camp was placed under
a siege, like it was Gaza, and the authorities attacked the camp. I tried to stop the intervention
by contacting the prosecution general In Laayoune, because the camp consisted of women,
children and old people, and the result would be disastrous. My activism is the reason for my
arrest; I have never murdered anyone and I have never harmed anyone; that goes against
everything I believe in.
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When the civil party started to ask questions, Zeyou invoked his right to remain silent, and
explained that he respected the attorneys but refused to answer their questions since the
attorneys had already judged him as a criminal. The civil party asked 20 questions which
Zeyou refused to answer. When the defence asked questions related to guaranties upon arrest
the court refused to ask the question.
The court adjourned until Monday, March 20
th
, at 00:40 am.
5. Principles for trial observation
5.1. The Trial Observation Manual
The right to observe trials stems from the general right to promote and secure the protection
and realization of human rights.
According to the principles set out in the International Commission of Jurist’s
Trial
Observation Manual
observations should focus on matters relating to judicial guarantees, as
well as the right to a fair trial.
Generally, the observers have no role in evaluating the evidence and arguments put forward
by the parties, or in weighing up the guilt or innocence of the accused. The observers should,
however, examine two principles related to the submission of evidence that are especially
important. The first is the principle of legal evidence, which aims at ensuring that evidence
has been lawfully obtained in accordance with procedural norms. The second is the principle
of legitimacy of evidence which aims to preclude evidence that has been obtained using
methods prohibited under international law, such as torture or death threats.
The Manual also sets forth that observers may asses the substance and merits in a specific
case, although under certain circumstances. The observer may evaluate the substance and
merits, if a trial is brought against;
“human rights defenders, journalists and political or social opponents for the
legitimate and peaceful exercise of their rights to promote and strive for the protection
and realization of human rights their political rights and/or their freedom of
conscience, expression and association. Such proceedings are generally brought up
for reasons of political persecution (political trials) rather than to impart justice.”
The principle of observing the substance and merits, can furthermore be applied in cases of;
“Proceedings in which there is such a complete and blatant absence of proof against
the defendant that the proceedings as a whole may be unfair. These kinds of
proceedings are usually initiated for reasons other than the proper administration of
justice. In such situations, trial observers will, as part of their assessment, need to
evaluate whether sufficient evidence was presented by the prosecution”
The Gdeim Izik camp was a protest camp claiming the right to self-determination and socio-
economic rights for the Saharawi people. The prisoners are all accused of charges related to
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the dismantlement of the Gdeim Izik camp. The arrest of the “Group Gdeim Izik” should be
regarded as proceedings brought up for reasons of political persecution.
Several of the prisoners served as leaders and spokespersons for the Gdeim Izik protest camp
in 2010. Several of the prisoners are leaders of human rights and/or political organizations
calling for the self-determination for Western Sahara. This political activism is to be regarded
as the reason for the proceedings; rather than to impart justice.
Furthermore; the main evidence is confessions extracted under torture. From the above
mentioned; the proceedings as a whole may be unfair due to the complete and blatant absence
of proof against the defendant.
As listed above; these proceedings are “brought up for reasons of political persecution
(political trials) rather than to impart justice”, and we will therefore evaluate the proceedings
on the grounds of assessing a political trial.
8. The fairness of the trial
The main article concerning the right to a fair trial is enlisted in article 14 of the ICCPR.
Morocco has ratified the International Covenant on Civil and Political rights (ICCPR) of 1966
(ratified 1979).
Article 14 of the ICCPR is regarded as the fundamental provision for the right to a fair trial,
due to the fact that article 14 entails all the main principle or doctrines that together
constitutes a fair trial. Due process of law (or, the right to a fair trial) is grounded on two main
elements: the right of all persons to equality before the law and the courts and the right of all
persons to a public hearing with all due guarantees before a legally-constituted, competent,
independent and impartial tribunal as well as the right to appeal.
8.1 The right to equality before the law and courts
The right to equality before the courts as enshrined in Article 14 of the ICCPR has two
basic aspects: equal access to the courts and equal treatment by the courts. This means that
all persons are equal before courts and tribunals.
As highlighted earlier and in the previous reports, the defence could not speak as freely as the
opposing counsel. The defence were directly prohibited from mentioning the political issues,
the Gdeim Izik camp, or the question upon jurisdiction. In comparison; the civil party were
not prohibited, in any way, from speaking their mind. The judge remained ignorant to this
direct discrimination.
The principle entails that national legislation should prohibit any type of discrimination and
guarantee everyone equal and effective protection against discrimination on any ground such
as race, colour, ethnic origin, language, sex, gender, sexual orientation, gender identity,
political or other opinion, religion, creed, disability, national or social origin, birth, economic
or other status.
As it follows, the opposing counsel openly harassed the defence attorneys. It was clear that
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the discrimination was based on race and national origin. In the mean time, the defence
attorneys are constantly prohibited from laying out a proper defence strategy, where they are
constantly being interrupted.
The atmosphere in the courtroom also alters the principle of equality of arms. The prosecution
is placed above the other parties present, and are constantly interrupting both the judge and
the defence. The prosecution has thus taken a directing role in the proceedings; the
prosecution general stands up, and knocks his microphones. This behaviour has both a
psychological effect, and a direct effect on the proceedings equality.
8.2 Independence and impartiality
By virtue of Article 14, subparagraph 1 of the ICCPR, the requirement of independence and
impartiality serves to safeguard the integrity of the judiciary and to ensure that judges base
their judgments solely on the merits of the case before it according to law.
When assessing the principle of independence and impartiality one factor to take
into account is the separation of powers and the relationship between the judiciary and the
prosecution.
The principle of independence and impartiality is a safeguard when ensuring that a trial and
its ruling is based on evidence and legal provisions. At the case of the “Group Gdeim Izik”
politics dominates the courtroom, and the court facilities are characterized by grand
demonstrations both inside and outside.
As mentioned in earlier reports; Morocco does not in general respect the rule of law. The
Moroccan legal system relies heavily on confessions obtained through torture, and political
prisoners are often released after being pardoned by the King. In whole, it may seem as if
justice is taken out of the courtroom, and into to the hands of the king.
When communicating with the families of the prisoners it becomes clear that the prisoners
have difficulties believing they will be given a fair trial. The prisoner reaffirm their quality as
political prisoners by shouting for self-determination and wearing their traditional costume, as
an affirmation of their national identity, knowing that this statement most likely will give
them harsher penalties than if they refrained. The accused that until now have testified in front
of the court, invoke that the only reason for their arrest are their Saharawi nationality and their
political activism.
8.3 Right to defense and right to be informed promptly of the charge
Under international standards, anyone arrested or detained has the right to be assisted by a
lawyer without delay and to communicate and consult with his lawyer without interception or
censorship and in full confidentiality. This right may be delayed only in exceptional
circumstances and must comply with strict criteria determined by law. In any event, the
person deprived of liberty should have access to a lawyer within 48 hours of their arrest or
detention.
Several factors can be put under the loophole when it comes to the right to defence. Firstly,
the prisoners were detained from communicating with their defence attorneys. The defence
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were prohibited, after numerous requests, from visiting their clients and to plan their defence
strategy. The defence was furthermore prohibited from consulting their clients when new
witnesses was enlisted into the proceedings. Secondly, the accused were deprived of their
pens and papers in the proceedings in January.
8.4 The right to be tried without unfair delay
Pursuant to article 14, subparagraph 3 (c), of the ICCPR, everyone has the right to be tried
without undue delay. Undue delay has to be assessed on the merits of each specific case,
considering the complexity and the special circumstances of each case.
The prisoners have remained in prison for 6 years without being found guilty. As it follows;
the prisoners have been deprived of their freedom for 6 years, without a fair trial and without
being found guilty. This time span is to be regarded as undue delay, whereas neither the
complexity or the special circumstances entails that the process of investigation should take 6
years. As it follows; this time span is at the best a breach of the right to be tried without unfair
delay, but also a breach to the right to freedom.
Furthermore, the accused remained in custody for longer than 48 hours without being
presented in front of a judge. Several of the accused were abducted, tortured, and held in
locations unknown for a long period of time, clearly violating the time limit of 48 hours.
8.5 The right to a public hearing
A decision not to hold a public hearing needs to be taken before the hearing and may only be
granted under specific circumstances. If it is still, when the hearing is ongoing, unclear
whether the hearing is public or not, and if some people are not let into the courtroom, the
hearing does not raise to the standards of international law.
All Saharawis wanting to attend the trial had difficulties entering the courtroom. Many of the
family members were prohibited from entering upon arrival. It was therefore only a small
number of the family members who actually entered the courtroom. It is therefore from this
fact alone clear that the hearing does not raise to the standard of international law.
Laila Fakhouri acted as our translator during our stay in Morocco. Laila had difficulties with
entering the courtroom on March, 13th, and was told that she was on a “non-enter-list”. The
police in control stated that the reason for the exclusion was the fact that Laila is “Sahrawi”.
Mrs. Moe stayed at the control point with Mrs. Fakhouri, whilst Mrs. Lourenço accompanied
by Mrs. Paloma Lopez, MEP and vice-presidente of the Western Sahara Interngroup of
European Parliament discussed this matter with the security officer inside the court house.
After one and a half hour Mrs. Fakhouri entered. Laila entered the courtroom each day, ever
since.
Sidi Mohamed Balla, acted as our other translator. He tried to enter the courthouse with our
group, and although Mrs. Lourenço and Mrs. Lopez argued with the security officer about
both cases he was not allowed to enter, with no justification or explanation.
8.6 Right to interpretation
The right to interpretation as contained in international treaties, concerns the right of the
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accused to have the trial translated into his or her mother-tongue or another language that the
defendant may understand.
The Sahrawi’s speak Hassaniya, a Arabic dialect. The proceedings should therefore be
translated into Hassaniya, which is the defendant's mother-tongue. The presiding judge
claimed on December 26
th
that the official language in Morocco is Arabic, and that every
Moroccan speaks their own language. The proceedings were therefore never translated, but,
the accused have been given a translator upon demand during testimonies in front of the court.
Thus, the right to interpretation is violated.
8.7 The principle of equality of arms
The principle of equality of arms stems from the right to equality before courts as established
in Article 14 § 3 (b) of the ICCPR. This implies that all parties to a trial should have the same
procedural rights in order for a trial to be fair. The principle of equality of arms requires that
the parties can contest the arguments and evidence presented against them.
The proceedings contained three parties. The defence had to defend themselves from two
sides; (1) the prosecution, and (2) the civil party. As it follows from the summary of the
proceedings; the civil party is not a formal party of the proceedings since the presiding judge
has refrained from ruling on the matter. Nevertheless, the civil party were given the right both
to litigate in front of the court, and to receive the case documents, and to question the accused,
and is there
de facto
an active part of the proceedings.
We therefore have a case of “two against one”. In light of the fact that the accused are not yet
proven guilty, the civil and the criminal case should be separated, and the victims should seek
compensation only after the criminal case is closed.
That the proceedings should be separated is supported by the fact that the defence are not
allowed to speak as freely, and are constantly interrupted during their proceedings. As it
follows; the principle of equality of arms is severely breached, where the defence have
difficulties with laying out a proper defence strategy due to the fact that they are constantly
being stopped. The defence are therefore not able to contest the arguments and evidence
presented against them.
Furthermore, it was made clear that the defence of the accused had not been given access to
see the full contents of the case file. To not be able to see the content of the case file is a clear
breach of the principle of equality of arms.
8.8 Right to call and examine witnesses
It is a crucial aspect of the right to defence to be able to question the evidence from the other
side and to cross-examine witnesses presented from the other side.
The defence of the accused were given the right to present several witnesses. The court
refused “the political witnesses”, thus the leaders that were in negotiations with the Gdeim
Izik camp cannot be presented as witnesses.
On the other hand, the defence, were given permission to assemble the police officers that
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conducted the arrest. In that regard, they have been given the chance to question the
documentation upon the arrest and custody.
8.9 The presumption of innocence
The principle of presumption of innocence, as codified in article 14 of the ICCPR, is a
fundamental part of the right to a fair trial. The presumption of innocence is an absolute right
which can never be derogated from.
The prisoners are not yet proven guilty, and they have the right to be presumed innocent. This
right is breached at the outmost expense due to the fact that the prosecution actually litigates
in the media. The media is overflowing of propaganda in the weeks following up to the trial;
portraying the accused as terrorists and violent killers.
The civil part portrays the accused as murderers and terrorists during their arguments, and
addresses some of the accused as killers. This is a severe violation of the right to be regarded
as innocent until proven guilty. The civil part has the right to ask for conviction, but has under
no circumstances the right to breach the presumption of innocence, before the verdict has
landed. Although the presiding judge has corrected the civil party on numerous occasion, the
civil party continues to address the defendants directly; calling them murderers and criminals.
The judge does not comment on these remarks, only after shouting protests have emerged
inside of the glass-cage by the prisoners. This is a severe violation of the prisoners right to be
presumed innocent until proven guilty, whereas the proceedings are broadcasted on national
television.
Numerous consequences flow from the guarantee of innocence, including the accused’s right
to remain silent and not to be compelled to make a confession and the principle that the
burden of proof should lay with the prosecution. It is clear from the testimonies that the
accused has not been given the right to remain silent and to not be compelled to make
confession. All of them declare that they have signed declarations without knowing their
content, and that the documents are falsified. None of them have been told about their rights
before being interrogated, and many claim to have confessed under torture.
As it follows, the accused are portrayed in the media and within the courtroom as violent
murders and criminals, and it is therefore of outmost importance that the principle of burden
of proof is applied by the preceding judge of the Court of Appeal in Salé.
8.10 The right not be compelled to confess guilty or to testify against oneself and
exclusion of evidence elicited by illegal means, including torture or ill-treatment.
Article 293 of the Criminal Code of Procedure prohibits the use of “confessions” obtained
through torture and other ill-treatment, stating that a “confession” obtained through “violence
or coercion shall not be considered as evidence by the court”. In a report from the ICJ the ICJ
states that this "article remains largely disregarded by Moroccan courts, in particular in cases
related to 'terrorism'".
The United Nations Working Group on Arbitrary Detention (WGAD) concluded after visiting
Morocco and Western Sahara in December 2013 that:
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“The Moroccan criminal judicial system relies heavily on confessions as the main
evidence to support conviction. Complaints received by the Working Group indicate
the use of torture by State officials to obtain evidence or confessions during initial
questioning. Courts and prosecutors do not comply with their obligation to initiate an
ex officio investigation whenever there are reasonable grounds to believe that a
confession has been obtained through the use of torture and ill-treatment.”
With regards to the “Group Gdeim Izik”, several reports conclude that all the prisoners have
been subject to comprehensive torture both during detention and during the imprisonment.
The reports also conclude that the confessions used as evidence in Rabat Military Court on
the 17th February 2013 were obtained through torture.
From the Military Court of Rabat in 2013, all of the prisoners claimed to have signed the
confessions and statements under torture. Furthermore, the CAT decision
(CAT/C/59/D/606/2014) clearly states that Eênama Asfari has suffered under violent torture,
and that the government has refrained from investigating. The Court on the other hand refused
to regard the CAT decision as evidence, or in any way as a legal document.
As mentioned above, the main evidence used against the prisoners in the Military Court of
Rabat in 2013 was evidence obtained through torture. This evidence is illegal, and the usage
is a direct violation of Morocco's international commitments, and is alarming news for the
following proceedings.
During the testimonies, all of the parties continue to ask questions based on the declarations
given by the prisoners under force and under torture. These questions constitute a second
breach to art. 15 of the Torture convention, as the declarations as a whole are illegal evidence.
8.11. Circumstances surrounding the trial
During the days prior to the proceedings, and during the proceedings, the media is
overflowing with propaganda portraying the Gdeim Izik camp as a violent military camp, and
the accused as criminals and murderers. On march 13th, the courtroom was shown a video
about the events in Gdeim Izik. The video is clearly edited and manipulated, and has written
comments in French, that condemn the accused. The sources for the video remain unknown.
Parts of the video that has been shown has circulated on YouTube for several years, and on
the 13th of March 2017 the formal video presented in the court as part of the evidence file,
was
posted
on
YouTube.
The
movie
can
be
found
here:
https://www.youtube.com/watch?v=vJjVOVADxmA.
We, the international observers, are constantly being followed by Moroccan civilian agents,
and are constantly filmed and taking pictures of. During the last proceedings, we had troubles
with finding accommodations, since the Moroccan authority’s contacts hotels etc. before our
arrival.
The Court facilities are guarded by a huge number of military forces, closed down with
fences. Upon entrance one have to go through three “checkpoints”, full body search and give
away all technology (i.e. phones, computers, cameras) and water upon arrival.
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Demonstrations are held just outside of the courtroom. The Saharawi’s were given a place
(fenced in) in the middle of the parking lot, whereas the Moroccans were surrounding them on
every side (also fenced in). The Moroccans had four speakers, where they played both music
(the national anthem etc.) and held appeals. The Saharawi’s were placed in the centrum,
without the same means, and were constantly approached by the police, and items were
thrown at them (such as bottles etc).
On March 13
th
, a journalist was arrested during the demonstrations outside the courtroom. His
name is Mohammed Dadi, is 24 years old and is a journalist in RASD TV. We are told that he
was tortured in Rabat, and that he has been transported by plane to Layoounee, where he
remains in custody. As can be seen in the attached report of the case of Mohammed Dadi, he
has been presented in front of an investigate judge on march 17th, clearly breaching the 48
hours time limit frame.
9. Conclusion and last remarks
Western Sahara is to be regarded as a non-self-governing territory under occupation. The
Commentary by the International Committee of the Red Cross highlights that the purpose of
the Fourth Geneva Convention is to make sure that
“protected
persons will be judged by their natural judges, without being subjected to
the misunderstanding or bias of persons representing a foreign mentality, traditions
or doctrines.”
One should be prosecuted and tried by its equals, without the fear of being prosecuted for
political reasons or by a court that is bias. The Group of Gdeim Izik is abducted from their
homes in Western Sahara, and trailed in a courtroom that does not have the jurisdiction to trial
them.
The main evidence against the accused are documents and confessions that are allegedly
obtained through violent torture. The reports from the medical examinations have not been
submitted to the court, and in our opinion the proceedings should not commence until the
reports are presented.
It should be noted, that the preceding judge knew that the reports would take 30 days, where
the examinations started on February 17th. Meanwhile the ones responsible for the reports
asked for 10 additional days. The proceedings were adjourned, and will continue on Monday
until Friday the 24th of March. The reports will therefore not be presented to the court until
the testimonies from the prisoners are concluded. In our regard, the missing reports,
constitutes a severe breach to the rule of law.
Furthermore, the detainees testify that all the documentation are
falsified, and that they have
been forced to sign papers with fingerprints, while they did not know the content of the
declarations. The usage of the declarations and the minutes when questioning the detainees
constitutes a breach to art. 15 of the Torture Convention. All of the accused were asked
questions based on illegal evidence, where some of them invoked their right to reamin silent,
claiming that these testimonies have been falsified.
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When asked questions about the movie that portrays the Gdeim Izik camp, Boutanguiza
declared that he did not recognize anything in the movie, and that the movie is manipulated as
a part of the fabricated story. The movie was showned to the people present in the courtroom
without admitting it into evidence, whereas the movie is clearly edited and fabricated after the
events happened. This video was posted on YouTube by an unofficial source on March the
13
th
. The question remains how this video ended up in the hands of a third-party; which
neither the defence or the civil party had direct access too. In this regard, we consider the
movie as a part of the propaganda told by the Moroccan authorities in the Moroccan media.
Dated March 17
th
2017
Tone Sørfonn Moe
Isabel Lourenco
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