Trial for the Gdeim Izik facts – Saharawi

Report of the Court hearing of June, 5th, 2017, Court of Salé, Morocco

Introduction. Italian lawyers from the Italian Democratic Lawyers Association, Elena Esposito e
Nicola Giudice, participated as international observers at the Court hearing held on the 5th of June
before the Court of Salé (Morocco) for the trial on the events known as Gdeim Izik facts. The mission
belongs to the wider international observation activity carried ahead by the Democratic Lawyers in
trials where violation of fair trial principles and fundamental human rights on behalf of National
Institutions is feared. The Italian delegation was also representing the Association of European Lawyers
for Democracy and Human rights and participated to the observation jointly with a high number of
international observers from, among others, France, Spain, Portugal and Norway.

Background information. The events object of the trial date back to November 2010, with the
repression of a mass protest of more than 20.000 people in Gdeim Izik camp, followed by the forced
cleaning of the camp on behalf of the Moroccan police. The government argued that during the clashes
11 police members were killed by demonstrators and ordered the arrest of 25 Saharawi activists and
political leaders, who were then formally accused of the murders. In February 2013 the accused were
condemned to severe penalties (between 20 and 30 years of jail and for some even life sentence) from
the Military Court of Rabat. In 2016, the Moroccan Court of Cassation over-ruled the decision on the
basis of a new law adopted in 2015 according to which the jurisdiction to hear such type of cases was to
be recognized to the ordinary judge and noting, a latere, the evident violations occurred in the first trial,
among which: no indication of victim names in the conviction sentences, lack of autopsies, no proof of
the etiological nexus between the accused actions and the alleged death of the 11 police officers.

The ongoing trial. Following the over-ruling of the Supreme Court, the trial was re-started in
December 2016 before the ordinary Court of Salé. The past Court hearings saw the cross-examination
of witnesses of both Public Accuse and Defense, the assunzione of evidences against the accused
(including the video that allegedly reproduces the criminal facts) and cross-examination of the accused.
Up to date, judges have not clarified whether the trial is in a first instance or second instance
phase, with the consequent impossibility to define which procedural rules are to be followed by the
Court and which rights are to be granted to the accused (among which, the right to ask admission of
new evidences, the admission of new civil parties, the identification of the legal grounds for the still!
ongoing detention status under which the accused have been for more than 6 years).
Beside, key evidence brought by the Public Accuse consists in the confessions extorted to the
accused with torture and other inhuman treatments, as recognized also by the United Nations
Committee against torture (CAT/C/59/D/606/2014): on the issue, the Court declared that neither the
mentioned opinion nor the Convention against Torture are admissible elements in the pending trial.
In the Court hearing of May, 16th the trustee solicitors of the accused dismissed their mandates,
as a sign of disconoscimento of legitimacy of the ongoing trial, with the appointing of office advocates
by the Court President. It is underlined with concern what reported from two of the resigning solicitors
(French lawyers1) regarding a violent attack towards them from the police forces in the court room.
The hearing kept going after this, with no interruptions, nor defense term to examine evidences and
immediate subentro of the newly appointed lawyers2.

Court hearing of 5th June 2017. Today’s hearing was set to discuss the results of medical
expertise ordered by the Court to assess the allegations of torture and inhuman treatment advanced by
the accused and their defense. Following Court refusal to the defense request to have independent

1
On the basis of a specific agreement between France and Morocco French solicitors can practice law in Moroccan court
rooms.
2 For a detailed analysis of the trial before the Court of Salé, refer to the extensive report drafted by the International

Observers of the Foundation for Western Sahara, available at: https://es.scribd.com/document/350492718/Gdeim-Izik-
Trial-Observation-Report-May2017.
international experts, the expertise was done by three Moroccan doctors appointed by the Court from
the national health system.
The hearing, called at 10 a.m., started with three hours of delay. After the Court entered the room
and before judges could proceed with acknowledging presences in the courtroom, one of the solicitors
of the civil parties intervened, even though it is still not clear which are the regularly admissed civil
parties in the trial, nor who their lawyers are. Judges announced to the courtroom that the accused
refused to be present during the hearing and, therefore, they would proceed in absentia. The defense
took the word to criticize the expertise as contradictory and lacking to apply the standards established
by the Istanbul Protocol on evaluation of torture, requesting a hearing for the oral examination of the
experts and the appointment of new experts to give a opinion on the expertise results.
The Court did not grant the appointment of new experts, although granting the first defense
request by scheduling a Court hearing for the cross examination of the three experts for the following
day, June 6th 2017. The short notice given for the examination opens to concerns on the possibility for
the defense to have adequate time to exercise effectively its mandate.

Conclusions. The appaerent compliance with procedures and the transparency observed to the
hearing of the 5th of June 2017 stand in open contrast with both what previously observed during the
trial and with the outside Court local context. It needs to be underlined what reported from the
Committee of families of the accused regarding ill treatment and beatings against them happened today
in order to impose their presence in the Courtroom.
More importantly, it is stressed that, although the Court (first or second instance as it will or will
not define itself) of Salé expressed the will to proceed in respect of fair trial rules and fundamental
guarantees, there are well-funded concerns about:
i. violation of the right to defense with consequent violation of the principle of orality and fair
trial: dismissal of defense mandates by the trustee attorneys was accompanied by despicable episodes of
violence and aggression towards the professionals, the current defense attorneys took the mandates
immediately after being appointed by the President of the Court during the same hearing of the
dismissal, without previously talking with their clients nor examining the documents of the Public
Accuse;
ii. violation of the fundamental freedom of movement of the accused and violation of the
prohibition of arbitrary and/or preventive detention: the accused are currently detained since
November 2010 based on a Court decision nullified by the Supreme Court. It is not clear whether the
ongoing detention is a preventive detention, based on the same circumstantial evidences which lead to
the arrests in 2010 or if it is already part of the atonement of the penalty imposed by the Military Court.
In both cases it consists in unlawful and not legitimate detention kept ongoing in breach of the
maximum limits of preventive incarceration established by international law, in the first case, and based
on a null decision, in the second case;
iii. violation of the fundamental right of inviolability of human beings through the repeated and
acknowledge tortures and ill treatments carried ahead on the accused in order to obtain self-accusing
confessions.

Violation of such guarantees, political nature of the trial and importance of the rights at stake
require the immediate and consistent activation of the International community to grant the provision
and respect of fair trial principles towards the Saharawi accused for the facts of Gdeim Izik and for the
peaceful resolution of the issue related to the right to self-determination of the people of Western
Sahara.

Elena Esposito, Nicola Giudice