MOROCCO AND SPAIN: ARBITRARY DETENTION OF ACTIVIST SAHRAOURI AL-HUSSEIN AL-BASHIR IBRAHIM

The International League Against Arbitrary Detention urges the Government of Morocco to take all necessary measures to implement Opinion No. 63/2024 of the United Nations Working Group on Arbitrary Detention concerning Al-Hussein al-Bashir Ibrahim, calling on the Government of Morocco to release him immediately and unconditionally, without conditions, and to grant him an enforceable right to compensation and other reparations in accordance with international law.

Read the full opinion of the WGAD concerning Al-Hussein al-Bashir Ibrahim (Morocco and Spain): Opinion No. 63/2024.

SAHRAWI POLITICAL ACTIVIST DETAINED IN SPAIN AND MOROCCO

Al-Hussein al-Bashir Ibrahim is a political activist defending the Sahrawi people's right to self-determination. Also known as Lahoucine Amaadour, he was born in 1911 and usually resides in Laâyoune, Western Sahara.

While studying at the University of Agadir, Mr. Al-Bashir Ibrahim created a movement of Sahrawi students defending their rights and the right to self-determination of the people of Western Sahara. In 2018, clashes between students reportedly took place, leading to the death of a Sahrawi student who was violently attacked by Moroccan students. The source explained that Mr. Al-Bashir Ibrahim was reportedly frightened by the violence against Sahrawi activists and fled to Spain.

On 11 January 2019, Mr. Al-Bashir Ibrahim arrived in Spain by sea, where he was immediately arrested and detained. On 14 January, he was brought before the investigating court for illegally crossing the Spanish border, in the presence of a lawyer and an interpreter. He was then taken back to the Moroccan border on 17 January 2019.

That same day, in Morocco, he was arrested and detained by the Moroccan authorities. Four days later, on 21 January, he was brought before an investigating judge, who accused him of organizing the “student group” and inciting it to use violence that led to the death of a student in 2016, for which the student group was convicted on the basis of articles 303, 393, 401, 403, and 405 of the Criminal Code.

Despite an initial hearing on 19 April 2019, the trial was postponed several times. Faced with these delays, the civil party finally requested that the trial begin on 26 November 2019, despite the absence of witnesses. Mr. Al-Bashir Ibrahim was then sentenced to twelve years in prison for organizing violence and inciting violence leading to death, without intent to cause it, under articles 403 and 405 of the Penal Code.

His appeal, initially scheduled for 25 March 2020, has also been postponed numerous times. However, following a short hearing on 21 October 2020, Mr. Al-Bashir Ibrahim's 12-year prison sentence was upheld.

According to the source, Mr. Al-Bashir Ibrahim has repeatedly denounced the conditions of his detention, including overcrowding and violence against him, and has reportedly been moved between several prisons, often far from his family, for this reason. Complaints to the authorities about ill-treatment have reportedly gone unanswered.

Following their transmission by the Working Group, the governments of Morocco and Spain responded to the source's allegations.

DEPRIVED OF HIS RIGHT TO A PROMPT APPEARANCE BEFORE A JUDGE IN MOROCCO

With regard to Spain, the source alleged that Mr. Al-Bashir Ibrahim's detention had no legal basis because no arrest warrant had been presented to him, and he had been forced to sign documents in Spanish. Furthermore, Mr. Al-Bashir Ibrahim reportedly requested political asylum during his hearing before the investigating court and was returned to Morocco without his request being examined. In response to these allegations, the Spanish government stated that Mr. Al-Bashir Ibrahim had been detained immediately after his illegal entry into Spain, and therefore on a legal basis. Furthermore, as Mr. Al-Bashir Ibrahim had access to a lawyer and an interpreter, the legal proceedings complied with the guarantees provided for under international law. In addition, the government stated that it had not found any documents indicating that Mr. Al-Bashir Ibrahim had applied for asylum in Spain. The Working Group found the Spanish government's response convincing and therefore did not find that Mr. Al-Bashir Ibrahim had been subjected to arbitrary detention in Spain.

In Morocco, the source initially claimed that Mr. Al-Bashir Ibrahim had been detained after his transfer from Spain without a warrant and without being informed of the reasons for his arrest. However, the Moroccan government responded that an arrest warrant had been issued for all those involved in the events of 2018 in Agadir and that Mr. Al-Bashir Ibrahim had fled to Spain to avoid the charges against him. Thus, he was aware of the reasons for his arrest. In this regard, the Working Group considered that it had not been proven that Mr. Al-Bashir Ibrahim was unaware of the reasons for his arrest.

According to the source, Mr. Al-Bashir Ibrahim was then interrogated for 48 hours without access to a lawyer or his family. He was only able to speak to a lawyer a few hours before appearing before a judge on 21 January 2019, five days after his arrest. On this point, the Moroccan government stated that Mr. Al-Bashir Ibrahim had been informed of his right to communicate with a lawyer and his family on 19 January but that he had refused to exercise his right at that time. Without reaching a conclusion on this point, the Working Group nevertheless considered that Mr. Al-Bashir Ibrahim's right to be brought before a judge within a short time after his detention had been violated. Indeed, a maximum period of 48 hours is generally considered adequate to meet the requirement of article 9 (3) of the Covenant.

Consequently, the Working Group concluded that Mr. Al-Bashir Ibrahim's detention in Morocco was arbitrary under category I.

SEVERAL VIOLATIONS OF HIS RIGHT TO A FAIR TRIAL

The source alleged that Mr. Al-Bashir Ibrahim's right to a fair trial had been violated in several respects. First, Mr. Al-Bashir Ibrahim was allegedly beaten and ill-treated during interrogations after his arrest. In addition, the reports from his interrogations were allegedly used as evidence against Mr. Al-Bashir Ibrahim. The source recalled that the Working Group had established in its jurisprudence a pattern of torture being used to extract confessions in Morocco. Morocco stated that there was no record of torture in the interrogation reports and that it had not received any complaints from Mr. Al-Bashir Ibrahim. The Working Group considered that Morocco had not sufficiently demonstrated that it had taken the necessary measures to investigate the allegations of ill-treatment and the use of evidence obtained in this way in the judicial proceedings. The Working Group therefore concluded that Morocco had violated article 14 of the Covenant and article 11 of the Universal Declaration of Human Rights.

Furthermore, according to the source, the authorities violated Mr. Al-Bashir Ibrahim's rights to have adequate time and facilities for the preparation of his defense, to communicate with a lawyer, to examine or have examined witnesses against him, and to obtain the attendance and examination of witnesses on his behalf. The Working Group, taking into account the lack of detail in Morocco's response, concluded that the proceedings against Mr. Al-Bashir Ibrahim had violated article 14 (1) and (3) (b) and (e) of the Covenant.

Thus, Morocco's violations of Mr. Al-Bashir Ibrahim's rights to a fair trial and due process were so serious that they rendered the deprivation of liberty arbitrary and therefore fell within category III.

According to the source, Mr. Al-Bashir Ibrahim was targeted and detained because of his Sahrawi identity and his views on the Sahrawi people's right to self-determination. However, the Working Group considered that the charges against Mr. Al-Bashir Ibrahim related to serious crimes, of which any person could be accused. It was therefore unable to establish that Mr. Al-Bashir Ibrahim had been detained in a discriminatory manner under category V.

CONCLUSIONS OF THE WORKING GROUP ON ARBITRARY DETENTION

In light of the above, the United Nations Working Group on Arbitrary Detention considered that the detention of Al-Hussein al-Bashir Ibrahim was arbitrary and fell under categories I and III, as his deprivation of liberty was contrary to Articles 9 and 11 of the Universal Declaration of Human Rights and Articles 9 and 14 of the International Covenant on Civil and Political Rights.

The Working Group called on the Moroccan government to conduct a thorough investigation into the circumstances of these violations. In addition, the Working Group requested that the Moroccan government take all necessary measures to remedy Mr. Al-Bashir Ibrahim's situation without delay and bring it into conformity with relevant international standards. The Working Group considered that, given all the circumstances of the case, the appropriate solution would be to release him immediately and grant him an enforceable right to compensation and other reparations, in accordance with international law.