Still no decision on Kafkaesque court case against Saharawi activists
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Serious flaws were made also in round two of trial against the so-called “Gdeim Izik” Saharawi activists in Morocco. Trial has been postponed until 13 March.

Published 29 January 2017

The trial for the so-called "Gdeim Izik 25" prisoners has been postponed to 13 March 2017, a Moroccan court has decided. 

The case was originally to be dealt with on 26 December 2016, but was yesterday postponed to 23 January 2017. The 25 Saharawis are accused of the killing of 11 policemen during the dismantlement of the protest camp Gdeim Izik in 2010. 

As the case's second round commenced in a court in Salé, near the Moroccan capital of Rabat, on the 23rd of January 2017. Around 40 Norwegians took part as observers during the days from 23 to 26 January.

The defendants claim 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. Many of the accused holds leading roles in the Saharawi community, whereas they served as leaders for different organisations fighting for self-determination and many of them served as leaders in the protest camp Gdeim Izik, and was therefore the ones conducting the negations With the Moroccan government prior to the camp's dismantlement by Moroccan police. 

The prisoners have now, for six years, suffered torture and ill-treatment, and are constantly harassed and discriminated. The 21 prisoners still deprived of their freedom still suffers under inhumane and ill-treatment. “Torture… torture… torture!”, the prisoners screamed, as they arrived the court on the 23th of January 2017, 10:45, from the basement where they had been detained. 

It was later known that prisoners had been woken up at 4 AM that same morning, and had been placed in the ice cold basement until the court was officially opened at 10:45 AM.

First of all, the conducting itself of the trial appears a breach of the Geneva Conventions. In this regard it must be noted that the judge refused to hear any proceedings concerning the Geneva Conventions, which constitutes a violation of the Morocco's international commitments. This point cannot be stressed enough. 

Furthermore, the court is a extraterritorial court, whereas Western Sahara is to be regarded as a non-self-governing territory. The territory is clearly a distinct territory from Morocco (e.g. § 106 of the Court of Justice of the EU judgement of 21 December 2016). 

Morocco's lack of recognized sovereignty over the territory is clearly outlined and summarized in the CJEU judgement. No international body has granted Morocco the role as an administering power over the territory, which is under decolonisation.

The second point regarding these proceedings concerns the right to a fair trial. The right to a fair trial is a basic safeguard when upholding the most basic human rights; one should not be deprived of their freedom without been given a fair trial and the right to appeal.

"This is a theater. They put on a show, and that's all", Sidi Abdallah Abbahah commented during the court case. Abbahah was already sentenced to life imprisonment in 2013. 

The preceding judge that constantly referred to "the right to a fair trial" and urged the right for the defendants. 

Yet, not all seems to have followed the book. The right to follow your own appeal goes hand in hand with the right to meet the accusations put forward; one cannot sufficiently follow the appeal without having the opportunity to take notes. It is not human to follow a proceeding lasting for more than 10 hours without something to write on. 

The prisoners were on the first day of the trial deprived, with force, of their pens and papers, whereas they were not able to take notes from the trial. 

Enaâma Asfari - who was convicted for committing a crime that was committed (by someone) two days after he was himself arrested in November 2010, shouted out; “I need my pen! My pen is my weapon!”.

When it comes to the right of a public hearing, the proceeding judge constantly referred to the division between his courtroom and the security measures that were “none of my business”. The defense claimed that Mr. Asfari´s wife was prohibited from entering the country, and that numerous family members were stopped at the entrance at the Tribunal de Prèmiere Instance. Furthermore, Sahrawis in general were prohibited from entering the courtroom, on the basis of their ethnicity. 

The right to a public hearing is almost absolute, whereas a decision not to hold a public hearing needs to be taken before the hearing and may only be granted under specific circumstances. As it follows from the International Covenant on Civil and Political Rights (ICCPR), art. 14, the national legislation should prohibit any type of discrimination and it remains the court's responsibility to ensure that the law is being upheld. It is therefore somewhat unusual that the judge claimed that this is not his responsibility, when it so clearly is. 

Furthermore; the 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. Numerous consequences flow from this guarantee, 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. 

“The presumption of innocence is for the trial of the Gdeim Izik clearly breached”, Tone Sørfonn Moe, a Norwegian observer, stated. 

The defense of the victims painted the accused as murderers and brutal tyrants, whereas the judge did not interfere in any instance. It must be noted that the media several weeks in advance had sent programs and videos portraying the accused as killers and violent tyrants. 

“Don't stand to close to me! I am afraid of you! I thank god that I wasn't in Gdeim Izik, then I would be dead too”, the defense of the victims, on one point, openly said to the Saharawi lawyers. 

"The prosecution followed the same path in his proceedings, and the judge looked like he swallowed the words of the prosecution whole, and had no remarks to the clear breach of the presumption of innocence", Ms Moe stated.

On the other hand; no evidence has not yet been placed forward. 

"In this regard, it is crucial that the judge upholds the principle of burden of proof, that should lay with the prosecution, whereas the accused has to be found guilty beyond reasonable doubt", Moe said. 

Third of all; Article 293 of the Moroccan 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”. 

The main evidence against the accused are documents and confessions obtained through violent torture. This evidence is illegal, but the court accepted the documents obtained during the arrest, where several claims about torture has been made from all of the accused. This is a clear breach to the Torture Convention. 

In the meantime, it should be noted, that Morocco in general does not honor some of its international agreements and obligations. This seem to apply both from the government, as well as in the courts. 

At one point the judge stated - regarding a report from the UN Human Rights Council's Committee against Torture on one of the accused:

“The international agreements are not a legal binding instrument in my court room, and I do not regard the decision from the Committee against Torture as any legal binding evidence”. 

From this statement alone, it appears that the Moroccan legal system does not respect its international commitments. It is thus up to the international community to make sure that they do. 

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