PUSL.- In the eve of the hearing of the Moroccan Court de Cassation on the Gdeim Izik this November 4th 2020 at 09h3=, we have interviewed Maitre Olfa Ouled, defense attorney of the group.
We recall that the last trial of the Gdeim Izik Prisoners ended in July 2017 and the Court de Cassation so far did not have issue a decision on the case validity following the judgment of the Court of appeal.
The decision of the Military court of 2013 was annulled after a decision of the Supreme Court in 2016 which referred the case to a civil court.
Both trial lacked the most basic principles of a fair trial and the request of the prisoners for an independent investigation into to the torture they have continuously denounced was not accepted in either trial.
1) Could you please explain shortly the legal procedures the Gdeim Izik Group already went through?
The summary is unfortunately simple to make: they were sentenced twice without any evidence other than confessions obtained under torture.
The second sentence was issue on July, 2017, after the moroccan supreme Court sent back the case to the Court of appeal of Rabat.
2) When the court de cassation issued its ruling in 2016, what did this entail?
The Court of Cassation had decided on the basis of article 550 of the Moroccan Code of Criminal Procedure to refer the case to the Rabat Court of Appeal.
Such a referral was decided by the supreme court on the grounds that the Military Court “did not demonstrate in its judgment the criminal acts perpetrated ».
In addition, the Military Court was unable to establish the causal link between the acts attributed to my clients and the death of the agents of the public forces.
For the record, the material acts attributed to the accused are as follows:
– Acts of violence committed against agents of the public forces, resulting in death with intent to kill.
– Association of criminals with the aim of committing a crime.
– Desecration of corpses.
The Court of Cassation therefore referred the case to the Rabat Court of Appeal so that it could judge the case in accordance with the applicable procedural rules.
Thus, contrary to the public campaign which was carried out in the media, the judgment of the Military Tribunal was not quashed following the legislative change excluding the competence of the Military Tribunal to judge civilians, but because of an illegality of said judgment namely his lack of motivation given the inexistence of evidence against the accused.
3) Now the Court de Cassation will have a hearing, what is it will aim for ?
The defendants, supported by their counsel, challenged the judgment rendered by the Rabat Court of Appeal in July 2017, recalling once again that the reports on which their guilt is based had been obtained following acts of atrocious torture committed against them.
This element is decisive but it is a safe bet that the referral to the Court of Cassation will not lead to the formal opening of an investigation into these acts of torture and that the innocence of the defendants will not be claimed.
This nullity plea had already been raised in the formal case submitted to the Court of Cassation in 2013 and leading to the 2016 judgment.
However, the Court of Cassation did not even recall this request of the defendants to open an investigation on torture in its written decision although it was required to include it therein, in application of the Code of Criminal Procedure. The independence of the Court is therefore from a legal point of view difficult to conceive.
4) Can the Court of Cassation release the prisoners?
The role of the Court of Cassation is to verify the correct application of the law by the courts. It does not judge the case on the merits, that is to say, it does not re-judge the facts, but checks that the laws have been correctly applied by the judges (those of the Rabat Court of Appeal). It is said that it is a judge of law (and not of facts).
When deciding on a case, the Court can reject (rejection judgment) or consider that there are grounds for cassation.
In this case, the Court may refer again to the Court of Appeal but may also decide to put an end to the dispute when the facts, such as they have been sovereignly noted and assessed by the judges of the lower courts allow it to apply the appropriate rule of law.
Consequently, theoretically, a release is possible but it is difficult to imagine taking into account the irregularity of the procedure already denounced.
A new referral to the Court of Appeal, highly probable, would still be likely to give time to the Kingdom of Morocco but would be an admission that the detainees have been in pre-trial detention for 10 years, without any basis.
5) Some of your clients have presented cases in the United Nations Committee against torture. What can the Committee do?
The Committee ensures the application of the Convention against Torture. It ensures, through so-called silent diplomacy and following the receiving of communication (complaints), that the detainees do not die and that an investigation into the acts of torture denounced is finally opened.
6) All the complaints you have presented in the CAT had interim measures. What are interim measures and what measures were given to your clients?
This is an emergency measure to prevent irreparable harm from being caused. These measures are called interim protective measures. They aim to prevent irreversible acts, such as death or being subjected to torture.
By requesting such measures, the committee does not prejudge its decision, but the complaint must have a strong chance of being upheld on the merits for the committee to conclude that the alleged victim is in danger of suffering irreparable harm.
In our case, the detainees for whom I submitted communications are dying and subjected to inhuman torture.
Moreover, to cite just this example, they have been forced into solitary confinement for a long time – for 3 years. They thus lose the notion of time, space and therefore reality and thus undergo intense psychological torture.
In particular, the Committee ordered the Kingdom of Morocco to cease torture, to release the defendants provisionally or to let them see the doctor of their choice.
In any event, the provisional protective measures are adapted to the personal situation of each of the detainees.
7) Do you think that this hearing of the Court of Cassation could help the Moroccan government to accept and apply the interim measures that have been issued?
Despite the filing of several communications (complaints to the UN), the Kingdom of Morocco seems to deny the reality of the facts. The delivery of the Court’s judgment is therefore certainly not unrelated to the fact that the Committee decided, following the denunciation of the reprisals suffered by several prisoners, to visit them.
The strong position of Mrs. Bachelet, the High Commissioner for Human Rights, with regard to the situation in Western Sahara only reinforces this conviction.
8) So far you have been prevented from meeting your clients after the last trial in 2017, do you think that Morocco will continue to deny this fundamental right to legal defense and to lawyer/client relationship?
Anything else would be a miracle. We are awaiting, with the families, the decision of the Court of Cassation which should be rendered in the weeks following the hearing on November 4, 2020.
Despite interim measures to allow detainees to contact me confidentially via videoconference, I have not yet had the opportunity to communicate with them.
However, it is only thanks to the work of a small team of volunteers and in the absence of any support that we have so far succeeded in denouncing the injustices suffered by detainees and we are determined to continue our defensive action despite the strong pressures felt.
And as final word I would like to pay tribute not only to the detainees but also to their families who continue to fight and to remind us daily of the tragic situation in which the detainees find themselves.
