Message: Ennaama Asfari v. Morocco. Decision No. 606/2014. The decision was taken by the Committee against Torture (hereinafter referred to as the Committee) November 15, 2016
In 2014, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Tunisia.
Subject matter: Torture in custody.
A matter of substance: cruel, inhuman or degrading treatment or punishment; the obligation of the State party to conduct an impartial investigation; prohibition of using evidence obtained under torture as evidence; protection from all forms of intimidation for reporting acts of torture.
The Committee's legal position is that any person deprived of liberty should be able to receive prompt and independent legal and medical assistance and should be able to contact his family in order to prevent torture (paragraph 13.2 of the Decision).
Article 13 [of the Convention] also provides that each State party must take measures to ensure the protection of the complainant and witnesses from any form of ill-treatment or intimidation in connection with his complaint or any testimony (paragraph 13.6 of the Decision).
Reparation must necessarily cover all the damage caused and include restitution, compensation, as well as measures designed to ensure that violations cannot be repeated, taking into account the circumstances of each case (paragraph 13.5 of the Decision) (See Bendib v. Algeria, paragraph 6.7.).
The Convention is conditioned by the absolute prohibition of torture and therefore implies the obligation of each State party to verify whether the statements used in the proceedings under its jurisdiction were obtained using torture (paragraph 13.8 of the Decision) (See Communications No. 419/2010, Ktiti v. Morocco, Decision adopted on May 26, 2011, paragraph 8.8; and No. 193/2001, P.E. v. France, Decision adopted on November 21, 2002, paragraph 6.3.).
The Committee's assessment of the factual circumstances of the case: The Committee notes the complainant's claim that the physical violence to which he was subjected during his arrest, interrogation at the police station and then at the gendarmerie in Al-Ayoun, as well as the treatment of him during his transportation by plane in order to obtain confessions from him, constitute acts of torture due to their gravity. The Committee notes that during the hearings of his case on 12 November 2010, 12 January 2011 and 12 August 2011. The applicant complained about the treatment he had been subjected to, but the investigating judge did not take into account his allegations and injuries and did not request a medical examination. The Committee also takes note of the complainant's allegations that such violence, which caused him to suffer excruciatingly for several months, constitutes a violation of article 1 of the Convention. The Committee notes ... that, according to the State party's observations, neither the complainant nor his lawyer complained of torture during the above-mentioned hearings. Taking into account the fact that, according to the complainant, he did not have access to any of these guarantees, and in the absence of convincing information from the State party questioning these allegations, the Committee considers that, according to the data provided, the physical violence and injuries to which the complainant was subjected during his Arrest, interrogation and detention constitute torture within the meaning of article 1 of the Convention (paragraph 13.2 of the Decision).
The Committee will also have to determine whether the fact that the judicial authorities have not initiated investigations into the allegations of torture submitted to them by the complainant constitutes a violation by the State party of its obligations under article 12 of the Convention. The Committee takes note of the applicant's allegations that on 12 November 2010, with visible signs of torture, traces of beatings and blood on his face, he appeared before a military investigating judge, who did not record these facts in the protocol; subsequently, the applicant unequivocally reported the torture to which he was subjected to the investigating judge on 12 January and 12 August 2011; The same allegations were made in a military tribunal in the presence of the Prosecutor; and at no time did the Prosecutor initiate an immediate investigation. The Committee notes the applicant's argument that filing a complaint with the Court of Cassation cannot be considered a useful and effective remedy, since the Court decides on the legal side and on the basis of the materials of the case submitted to it, namely, the acts of which the applicant is accused. The Committee also notes the State party's arguments that the complainant did not make allegations or raise the issue of torture with the competent authorities. He notes that on July 27, 2016, the Court of Cassation decided on the petition filed by the applicant and other convicts in this case in February 2013 to transfer the case to the Rabat Court of Appeal for Civil Cases. The Committee also takes note of the information provided by the State party on 4 November 2016, according to which the hearing of the applicant's case before the Court of Appeal was scheduled for 26 December 2016. In addition, the Committee notes that, according to information received by it, the subject of the cassation complaint, which has been considered for more than three years, was to assess the correctness of the application of Moroccan legal norms in such a case and does not relate to allegations of torture, which are the subject of this complaint and for which for almost six years No investigation has been launched. Moreover, the available information does not allow him to conclude that the Rabat Court of Appeal will have the right to rule on the allegations of torture made by the applicant, in particular because the Court of Appeal has not been given any instructions to investigate the allegations of torture. The information available to the Committee indicates that the Court of Cassation returned the case to the Court of Appeal to decide on it again, due to the fact that the military tribunal did not provide clear evidence that the applicant ordered or incited any particular party or persons to commit criminal acts, as well as his criminal intent, which, in the absence of these elements, invalidates the decision. In these circumstances, the Committee considers that the likelihood that the Court of Appeal will consider allegations of torture is very low (paragraph 13.3 of the Decision).
The Committee also notes that the military investigating judge did not make a request for a medical examination, although the applicant showed clear signs of physical violence and no investigation was conducted in this regard. In addition, the Military Tribunal did not take into account the complainant's allegations of torture when deciding on his conviction, and the State party denies that such allegations were presented during the proceedings. The Committee also emphasizes that the State party has very significantly exceeded the reasonable time frame for the administration of justice in this case: almost six years have passed since those events and the first allegations of torture were submitted, and no investigation has been initiated. The appeal has in no way changed this situation, and the applicant remains in custody solely on the basis of his confession signed under duress. In the light of the above, the Committee considers that the absence of any investigation into allegations of torture in the complainant's case is incompatible with the State party's obligation under article 12 of the Convention to ensure that its competent authorities conduct a prompt and impartial investigation when there are sufficient grounds to believe that an act of torture has been committed (paragraph 13.4 of the Decision).
In these circumstances, the State party also failed to comply with its obligation under article 13 of the Convention, according to which it is obliged to guarantee the applicant the right to file a complaint, assuming that the authorities will respond appropriately to this complaint by conducting a prompt and impartial investigation (See communication No. 376/2009, Bendib v. Algeria, Decision adopted on 8 November 2013, paragraph 6.6. See also Paro v. Spain, Blanco Abad v. Spain and Bouabdallah Ltaif v. Tunisia.)... The Committee notes that the complainant was the target of threats as a result of a lawsuit by the Moroccan Ministry of the Interior and that his lawyer was arrested and expelled from Morocco in March 2016, when he was supposed to represent his client during the proceedings of a report on acts of torture to which he was subjected. The State party has not provided any information that could refute this part of the communication. The Committee concludes that the facts in this case also constitute a violation of article 13 of the Convention (paragraph 13.5 of the Decision).
With regard to the complainant's allegations under article 14 of the Convention, the Committee recalls that this provision recognizes the right of a victim of torture to fair and adequate compensation and imposes an obligation on States parties to ensure that the victim receives appropriate compensation for all damage caused... In the present case, the Committee notes the complainant's allegations of physical and psychological suffering from the effects of the violence he experienced. The Committee notes ... that the fact that the military investigating judge did not order a medical examination did not allow the applicant to take advantage of rehabilitation, compensation, medical care and guarantees of non-repetition of the crime. The Committee considers that the absence of an immediate, prompt and impartial investigation deprived the applicant of the opportunity to exercise his right to compensation in violation of article 14 of the Convention (paragraph 13.6 of the Decision) (See para. Communication No. 514/2012, Niyonzima v. Burundi, Decision adopted on November 21, 2014, paragraph 8.6.).
The applicant claims ... that he is a victim of a violation of article 15 of the Convention because of his conviction on the basis of confessions obtained under torture. The Committee notes the applicant's claim that he did not confess to anything, but was forced to sign a document of unknown content (paragraph 13.7 of the Decision).
The Committee notes that, in the complainant's opinion, the confessions he signed under torture were used as the basis for his accusation and justification of his detention for more than six years; and that, through his lawyer, he unsuccessfully tried at various stages of the proceedings in his case to challenge the evidentiary value of the confessions he signed under torture. The Committee also notes that the court did not take into account the complainant's allegations of torture during his conviction on the basis of his confessions and denies that these allegations were presented during the proceedings. These communications were made in the presence of witnesses and recorded in the protocols that the complainant attached to his communication to the Committee. Nevertheless, the applicant's lawyer's request to the military investigating judge during the court hearing on February 8, 2013, to interrogate the drafters of the interrogation protocols, if possible, in order to clarify the circumstances of obtaining confessions, was rejected. The Committee considers that the State party had an obligation to verify the content of the complainant's allegations. By failing to undertake any checks and using such testimony in the course of the proceedings against the applicant, the State party has clearly violated its obligations under article 15 of the Convention. In this regard, the Committee recalls that in its concluding observations on the fourth periodic report on Morocco (see CAT/C/MAR/CO/4, para. 17), it expressed concern that, according to the established investigative practice in the State party, confessions often serve as evidence on the basis of which to institute prosecution against a person and impose a conviction, which creates prerequisites for the use of torture and ill-treatment of suspects (paragraph 13.8 of the Decision) (See Communication No. 503/2012, Ntikaraera v. Burundi, Decision adopted on May 12, 2014, paragraph 6.6. See also Niyonzima v. Burundi, paragraph 8.8.).
With regard to the complaint of non-compliance with article 16 of the Convention, the Committee takes note of the complainant's claim that the treatment he was subjected to during the trial, including the unsanitary conditions of his detention during the first months of his stay in the Sale prison in Rabat, amounted to inhuman and degrading treatment. The Committee... Takes note of the allegations that the applicant spent the night handcuffed to a large door framed by steel bars, guards kicked and insulted him whenever he wanted to change his position, and his access to a doctor, lawyer and wife was restricted for several weeks. The applicant... He claims that starting on November 18, 2010, he was placed in solitary confinement for four months and remained in the cell for three months without permission to walk, being able to communicate with other prisoners only through the window. Having no relevant information from the State party on this issue, the Committee concludes that the facts presented indicate a violation by the State party of its obligations under article 16 of the Convention (paragraph 13.9 of the Decision) (See Niyonzima v. Burundi, paragraph 8.8.).
The Committee's conclusions: the facts indicate Violation by the State party of articles 1 and 12-16 of the Convention (paragraph 14 of the Decision).