N’Dour v. Morocco

The author of the communication is Omar N’Dour, a Moroccan national who was born in Western Sahara in 1979. He states that Morocco has violated his rights under article 1 (1), read in conjunction with articles 2 (1) and 11, and articles 12, 13, 14, 15 and 16 (1) of the Convention. He is represented by Track Impunity Always (TRIAL) and by the Sahrawi Association of Victims of Grave Human Rights Violations.

On 20 October 2015, the Committee, acting through its Rapporteur for new complaints and interim measures, decided to examine the admissibility of the complaint separately from the merits.

The complainant was one of the activists in the Gdeim Izik camp and was a member of its security team.³ The camp had been set up in early October 2010 on the outskirts of Laayoune, Western Sahara, to protest the marginalization of Saharans and discrimination against them by the Government of Morocco and to demand the Saharans’ social and economic rights. On 8 November 2010, Moroccan security forces arrested the people living in the camp. This gave rise to a wave of demonstrations and led to the deaths of 11 members of the security forces and of 2 Saharans, according to official sources. This triggered a violent reaction on the part of the Moroccan security forces, who arrested some 200 Saharans, including the complainant, in the days following the dismantlement of the camp.

3. The complainant states that his duties consisted of maintaining peace and order in the camp, which included preventing fights and making sure that no one brought drugs or alcohol into the camp. ↩

On 10 November 2010, around 11 p.m., a number of heavily armed members of the Moroccan security forces (members of the army and of elite police units) surrounded the farm where the complainant was and arrested him without informing him of the reasons for his arrest. They then dragged the complainant to a secluded area nearby, threw him on the ground, struck him on the back and knees with truncheons and threatened to kill him. His aggressors questioned him about his involvement in the Gdeim Izik camp and about his ties to certain militant Saharans. The questioning continued until dawn. The complainant was then taken to the central police station in Laayoune and locked up in the basement, away from the other detainees. The complainant remained handcuffed and blindfolded throughout the following day. He was severely beaten and interrogated again. At around 11 p.m., a group of agents known as the “death squad” forced him into a small truck and took him to a deserted area where they dug a grave. They threatened to kill the complainant and bury him there if he did not answer their questions. They forced him to undress and threw cold water on him, after which they shoved a glass bottle into his anus.

On 12 November 2010, around 2 or 3 a.m., the complainant was taken to the Laayoune police station and placed in a cell with 80 other prisoners. Later that day, he was transferred to another room, where he was again tortured and questioned about his involvement in the Gdeim Izik camp. One guard kept him awake by force while another beat him with a club. He was also subjected to a form of torture known as “the aeroplane”, where his hands and feet were tied to a stick or pole from which he was suspended while he was beaten.

That same day, around 8 p.m., security agents forced the complainant to sign several documents without allowing him to read them. About an hour later, he was brought before the investigating judge of the Laayoune Court of Appeal, who read out 13 charges against him, which included homicide, the destruction of public property and participation in an illegal armed group. The complainant said that he was innocent and described the torture to which he had been subjected. He even opened his shirt to show the marks and bruises left by the beatings he had received. The judge, however, did not order that a medical examination of the complainant be performed but instead ordered that he be kept in custody on the strength of his signed confession.⁴ While he was before the judge, the complainant was able to see his legal representative for the first time; the representative had asked to see his client earlier but that request had been denied.

4. The complainant points out that this is not in accordance with Moroccan law, which requires judges and prosecutors to order that a medical examination be performed and to undertake an inquiry if they observe signs of ill-treatment. ↩

The complainant was then transferred to the detention centre known as “the black jail” in Laayoune, where he remained until 17 May 2011. Upon his arrival at the centre, the complainant, along with other prisoners (some of whom were children), was forced to undress and to file in front of the guards, who beat them, touched their genitals and insulted them for an hour. The complainant was then placed in an overcrowded cell which had no lighting.

On 14 November 2010 at 6 a.m., the complainant was taken to the Laayoune police station, where he was again tortured. He was hung from the ceiling until he lost consciousness and was the victim of sexual violence involving the insertion of a stick in his anus. Security agents demanded that he identify two persons as being responsible for the murder of a police officer. When the complainant refused to do so, he was threatened and severely beaten again.

After having been kept all day at the police station, the complainant was taken back to the centre known as “the black jail”. In the days that followed, his blindfold was taken off, but he was not allowed to have his glasses. His physical condition deteriorated severely. He became feverish and his entire body was in pain, but he was refused medical treatment and medicine.⁵ From 13 to 16 November 2010, the complainant was kept in a small cell measuring about 3 metres by 5 metres with 47 other prisoners; they had to use toilets that were inside the cell, had no running water and had to sleep on the ground.

5. The complainant states that he did not receive any pain medication until February 2011 and that he was first seen by a doctor in April 2011. The doctor visited the prison once every three days for only one hour at a time. ↩

On 16 November 2010, the complainant was handcuffed and blindfolded and was told that he would be transferred to Rabat. However, he was simply placed in another cell in the same prison with 34 other prisoners. In the new cell, the guards left the lights on around the clock. When the prisoners protested, the guards left them in the dark for the entire day. They were held in that cell for 20 days before they were allowed to receive visitors. The complainant remained in that cell until the end of the year.

When the Prosecutor General of the Court of Appeal of Laayoune visited the prison, the inmates, including the complainant, told him about the acts of torture to which they had been subjected, the conditions of detention in the prison and the absence of medical treatment, and they asked that an inquiry be opened. Nevertheless, and contrary to Moroccan law,⁶ no inquiry was opened, and the prisoners did not undergo any medical examinations. On 9 December 2010, the complainant’s father filed a complaint with the Court of Appeal of Laayoune regarding the torture of his son. He never received a response, and no inquiry has been opened.

6. The complainant cites articles 74.8 and 135.5 of the Code of Criminal Procedure of Morocco. ↩

Towards the end of December 2010, 133 of the inmates who had been imprisoned in connection with the dismantlement of the Gdeim Izik camp, including the complainant, were regrouped into three very small cells in a separate part of the detention centre and were kept there for 24 hours.

On 28 January 2011, the complainant’s representative filed a request with the Laayoune Court of Appeal that he be released on bail; the acts of torture to which the complainant had been subjected were mentioned in the bail application. That request was denied, and no inquiry into the allegations of torture was opened.

Between 1 and 4 February 2011, the representatives of the prisoners and their parents lodged complaints of torture on behalf of the prisoners, including the complainant, with the Prosecutor General of the Court of Appeal of Laayoune, the Ministry of Justice, the Ministry of the Interior and the Consultative Council on Human Rights. Nonetheless, no inquiry was opened.

On 17 May 2011, the complainant was released on his own recognizance. Only 4 of the 13 initial charges against him were retained: belonging to a criminal group, commission of an act of violence upon an official, blocking the public right-of-way and disturbing the peace. To date, the complainant remains at liberty on his own recognizance and no legal proceedings have been brought against him. He states that many other people who were involved in the events at Gdeim Izik are in the same position as he is and that the fact that they have been free on their own recognizance for a prolonged period is used to deter them from taking part in efforts to defend human rights in Western Sahara.

The complainant indicates that, following the acts of torture inflicted upon him, he suffers from physical and psychological problems, including insomnia and post-traumatic stress syndrome, and has been unable to complete his studies.

The complainant asserts that he has exhausted domestic remedies inasmuch as he told the investigating judge that he had been tortured when he appeared before that judge on 12 November 2010 and his father lodged a formal complaint of torture with the same judge. In addition, in the bail application which his legal counsel submitted to the investigating judge, his counsel stated that he had undergone torture. In February 2011, the complainant’s father and the Sahrawi Association of Victims of Grave Human Rights Violations again reported the acts of torture undergone by a number of persons arrested in connection with the events at the Gdeim Izik camp, including the complainant, to the Prosecutor General of the Court of Appeal of Laayoune, the Consultative Council on Human Rights and other governmental institutions. Despite all of these efforts, no inquiry has been opened.

The complainant adds that the violations of his rights are explicitly described in a number of public reports that have been prepared by national and international non-governmental organizations⁷ and presented to the Moroccan authorities. The Robert F. Kennedy Center has also published a report that gives the first-hand accounts of a number of the Gdeim Izik prisoners, including the complainant, who say that they tried to lodge complaints regarding the numerous acts of torture to which they had been subjected but that the officials working at the detention centre refused to accept them.⁸ The establishment of a parliamentary committee in Morocco to look into the events at Gdeim Izik has not led to the opening of an investigation.⁹ Furthermore, there is no avenue of recourse in Morocco which people who claim to have been tortured can use to demand that a diligent, impartial investigation be undertaken, and the submission of a request that such an investigation be opened has no suspensive effect on legal proceedings that are based on evidence obtained by means of torture.

7. The complainant cites a November 2010 report of Human Rights Watch that documents acts of torture and sexual violence committed by members of Moroccan security forces against the Gdeim Izik prisoners: Sahara Occidental: Palizas y maltrato por parte de las fuerzas de seguridad marroquíes. Investigar la respuesta violenta a disturbios, 2010. He also cites a report of Amnesty International that documents numerous cases in which prisoners have been tortured: Derechos pisoteados: Protestas, violencia y represión en el Sahara Occidental (2010). The Sahrawi Association of Victims of Grave Human Rights Violations also published a report in January 2011 which lists the names, including that of the complainant, of the persons held in “the black jail” following the dismantlement of the Gdeim Izik camps and details the torture to which they were subjected. ↩
8. Robert F. Kennedy Center for Justice and Human Rights, Sahara Occidental: Persisten los relatos de abusos a los derechos humanos en el despertar de los disturbios de noviembre (2013). ↩
9. The complainant states that this parliamentary committee issued a report on 12 January 2011 which contradicts the conclusions reached by other organizations that have investigated the events of Gdeim Izik. ↩

The complainant states that the events in question occurred within the context of absolute impunity in cases of torture and other serious human rights violations perpetrated by members of Moroccan security forces in Western Sahara, despite the numerous complaints presented to judicial authorities (see CAT/C/MAR/CO/4, para. 12). He points out that the Committee has also noted the absence of an impartial, effective investigation into the serious human rights violations linked to the dismantlement of the Gdeim Izik camp (para. 13). The complainant concludes by stating that he has attempted to make use of the remedies existing at the national level but to no avail.

The complainant claims to be the victim of a violation of article 1 (1), read in conjunction with articles 2 (1) and 11, and of articles 12, 13, 14 and 15 of the Convention by reason of the acts of torture to which he was subjected, the extraction of confessions under duress, the absence of a prompt, effective, independent, impartial and thorough investigation into his allegations of torture and the failure to prosecute and punish those responsible. The complainant further contends that the State party has not offered him any assurance of adequate reparation, compensation or rehabilitation for the harm that he has suffered.

The complainant considers that he is also the victim of a violation of article 16 (1), read in conjunction with article 11, of the Convention due to the inhumane conditions of detention in which he was held.

The complainant requests that the Committee call upon Morocco to: (a) Carry out an impartial, thorough investigation, which should include the performance of medical examinations in accordance with the Istanbul Protocol, into his claims with a view to bringing to justice those responsible for the acts of torture to which he was subjected. The findings of that investigation should be made public; (b) Adopt all necessary measures to ensure that the complainant and his family are duly protected from any kind of threat, harassment or intimidation; (c) Ensure that the complainant obtains prompt, adequate and equitable compensation; (d) Offer the medical and psychological treatment needed by the complainant; (e) Offer the complainant a scholarship so that he can attend specialized courses of study in order to complete his university education, which he had to discontinue as a consequence of the harm that he has suffered; (f) Withdraw all charges brought against the complainant in connection with events at the Gdeim Izik camp; (g) Hold a public ceremony at which it will acknowledge international responsibility for the violations in question; (h) Design and conduct training programmes on international standards regarding the treatment of prisoners and the use of force by law enforcement officers, security forces and prison personnel; (i) Adopt the necessary measures to ensure that conditions of detention are in line with international standards; (j) Amend existing laws, including those dealing with the definition of torture and the use of pretrial detention, in order to ensure that they are in conformity with the Convention; (k) Translate the Committee’s decision into Arabic and Hassaniya and publish it in a newspaper with a nationwide circulation.

On 13 March 2015, the State party contested the admissibility of the complaint on grounds of non-exhaustion of domestic remedies. The State party maintains that the complainant has never filed a specific, formal complaint with Moroccan judicial authorities regarding the acts of torture to which he was allegedly subjected while he was in custody. The complainant simply states that the authorities never agreed to open an inquiry, but he provides no evidence of having taken any steps to request that an inquiry be conducted. The State party adds that the bail application submitted by the complainant’s counsel in May 2011 did not constitute a request for the opening of an inquiry because such a request must be presented in accordance with an established procedure and must provide specific, detailed information about the circumstances in which the alleged acts of torture occurred. Finally, the complainant has made no effort to avail himself of other national human rights mechanisms at either the local or national level. Nor has he demonstrated that the corresponding procedures would be excessively prolonged or that the remedies would be ineffective.

The State party challenges the complainant’s claim that, when he was at his hearing, he told the investigating judge that he had been tortured, and it notes that he failed to do so even though he was assisted by six lawyers. The State party recalls that it is incumbent upon complainants to document their contentions by, in particular, furnishing copies of the judicial decisions handed down in their cases. In that regard, the letters containing allegations of torture which were presumably sent to judicial or other authorities bear no indication of an acknowledgement of receipt by those authorities but instead appear to have been drawn up especially for the occasion.

As for the facts of the case, the State party affirms that the complainant belonged to the armed militias recruited by the organizers of Gdeim Izik to keep order in the camp. He was intercepted by police officers because he had taken part in the attacks made on security forces when they came to dismantle the camp on 8 November and had committed acts of vandalism in Laayoune. He was then taken into police custody on the instructions of the Court of Appeal of that city. The charges were read out on 12 November 2010 before the Crown Prosecutor General of Laayoune, who referred the case to an investigating judge. That judge had, in turn, issued a detention order.

The State party requests that the Committee suspend its consideration of the present communication until such time as the Moroccan courts have issued a decision in the complainant’s case, since he has not yet stood trial.

In his comments of 22 May 2015 on the State party’s observations, the complainant insists that domestic remedies have been exhausted because he informed the investigating judge that he had been tortured and showed him the marks left by the acts of torture to which he had been subjected. Furthermore, his father submitted a formal complaint of torture to the same investigating judge, and the complainant’s counsel referred to the acts of torture in his bail application. He states that the judicial authorities did not acknowledge receipt of any of those complaints and that this is an established practice in Morocco, especially in cases involving complaints about human rights violations committed by security forces in Western Sahara.

The complainant maintains that there is no avenue of recourse in Morocco whereby the authorities can be obliged to undertake a diligent, impartial investigation into allegations of torture.

As for the facts of the case, the complainant asserts that, contrary to what the State party has said, he did not belong to an armed militia. When Gdeim Izik was being dismantled, he was not at the camp; it was only later that he went there to help some of the injured, whom he then took to his home. The complainant had said that he had witnesses who could prove that, but the judge did not call them to testify.

The complainant observes that the State party has not provided an explanation for his arrest and interrogation by security forces or for the way he was treated even though, in accordance with international jurisprudence, the State party bears the burden of proof when persons deprived of their liberty claim to be the victims of human rights violations. Thus, the State party should have furnished detailed explanations concerning the physical and psychological injuries exhibited by the complainant when he was in police custody; the existence of those injuries has been confirmed in medical reports.

On 16 July 2015, the State party requested that the Committee’s consideration of the communication be suspended because the complainant remains on conditional release and has not stood trial, which demonstrates that domestic remedies have not been exhausted.

On 4 August 2015, the complainant reiterated his previous arguments regarding the exhaustion of domestic remedies and cited the case of Asfari v. Morocco,¹⁰ in which the Committee found the complaint to be admissible.

10. Communication No. 606/2014, decision concerning admissibility of 20 April 2015. ↩

The complainant points out that, four years after having been released on his own recognizance, he has still not been brought to trial. No action has been taken in the case regarding the remaining charges against him. In any event, that case has nothing to do with the failure to undertake an investigation into the acts of torture to which he was subjected and therefore does not constitute an effective remedy for that purpose. The suspension requested by the State party is, according to the complainant, nothing more than a means of deferring the consideration of the present communication.

Before considering any complaint submitted in a communication, the Committee must decide if the communication is admissible under article 22 of the Convention. As required under paragraph 22 (5) (a) of the Convention, the Committee has ascertained that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

The Committee notes that the State party has contested the admissibility of the present complaint on the grounds of non-exhaustion of domestic remedies. The State party contends, firstly, that the complainant has not brought his allegations of torture before the judicial authorities and, secondly, that there is still a case pending against him. The Committee also takes note of the State party’s assertion that the complainant has not filed a specific, formal complaint regarding acts of torture with the judicial authorities and that the copies of complaints that have been presented to the Committee are meaningless because they do not show any acknowledgement of receipt by those authorities. The Committee takes note, however, of the complainant’s claims that, even though he appeared before the investigating judge of the Court of Appeal of Laayoune bearing visible signs of torture, told the judge that he had been tortured and made the same claim to the Prosecutor General during his visit to the prison and even though those allegations were also brought before the same judge by his father and by the persons representing him, no investigation was opened despite the fact that it was the duty of those institutions to do so. The Committee also notes that the authorities were again apprised of the acts of torture to which the complainant had been subjected in the application for bail dated 28 January 2011 which the complainant’s counsel submitted to the investigating judge.¹¹ The Committee recalls that, pursuant to article 12 of the Convention, States parties are under an obligation to ensure that the competent authorities proceed to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed. The Committee considers that, once a State party has become cognizant of allegations of torture, regardless of which authority has been informed thereof, it is under an obligation to carry out an investigation and, if appropriate, to initiate legal proceedings, which has not been done in the present case. The Committee further considers that the burden of proof should not be borne solely by the complainant, given that the complainant and the State party do not always have the same degree of access to evidence and that frequently the State party alone is in possession of the relevant information. In cases where the allegations are corroborated by credible evidence submitted by the complainant and where further clarification depends on information exclusively in the hands of the State party, the Committee may consider the allegations to have been sufficiently substantiated in the absence of satisfactory evidence or explanations from the State party to the contrary. Under these circumstances, since the State party has produced no evidence to indicate that an effective remedy is available, the Committee is of the view that the exhaustion of domestic remedies by the complainant was not possible.

11. A copy of the application has been submitted to the Committee. ↩

As for the State party’s argument that the consideration of the communication should be suspended because the complainant has not stood trial, the Committee recalls that the subject of the complaint before it differs from that of the criminal proceedings brought against the complainant in the Moroccan courts and that the object of those proceedings is not to determine whether or not the authorities bear any responsibility for the acts of torture alleged by the complainant. Consequently, the Committee finds that the State party’s argument in support of its claim that the complaint is inadmissible is not relevant in this case.

The Committee therefore decides: (a) That the communication is admissible insofar as it raises issues under articles 1 (1), 2 (1), 11, 12, 13, 14, 15 and 16 (1) of the Convention; (b) That the State party shall be requested to submit its observations on the merits of the communication within four months from the date of transmittal of this decision; (c) That the State party’s observations shall be transmitted to the complainant for his comments;