New York — Violations, Flimsy Evidence, Speculative Reasoning Led to 6-Year Sentence
Omar Radi, an investigative journalist in Morocco, was denied a fair trial and sentenced to six years in prison on espionage and rape charges, Human Rights Watch said today, after an extensive review of the case. An appeals session in his case is scheduled for November 25, 2021.
Radi, a target of ongoing State harassment, has denied all the charges against him. The lower-court trial by the Casablanca Court of First Instance was marred with violations of fair trial standards, including the court's unjustified refusal to examine evidence and hear witnesses in favor of Radi, and allow his lawyers to examine a witness in favor of the prosecution. The court's written judgment, which Human Rights Watch has read, relies heavily on speculative arguments.
"After years of police harassment capped by a mockery of a trial, Omar Radi is now in his second year behind bars instead of reporting on government corruption," said Eric Goldstein, acting Middle East and North Africa director at Human Rights Watch. "Moroccan authorities are trying to make this a case about 'espionage' rather than about silencing one of the country's last critical journalists, but the authorities aren't fooling anyone."
Radi, an award-winning investigative reporter and human rights activist, has published articles about land grabs by speculators and broke the so-called "servants of the State" corruption scandal, which exposed about 100 people, including high-level officials, who allegedly acquired state land at a fraction of market value. In a talk show in 2018, Radi lambasted a top security official by name and said that the Interior Ministry had harbored Morocco's "biggest corruption scheme ever" and "should be dissolved."
Before he was arrested and prosecuted for espionage and rape, Radi was detained, tried, and convicted for a tweet; had spyware intrusion on his smartphone; and experienced a pervasive defamation campaign against him on websites linked to security services, and a suspicious physical assault.
Human Rights Watch interviewed Radi before he was arrested in July 2020, as well as his parents, eight of his lawyers, four of his colleagues, and five witnesses to two of the events for which he was prosecuted. Human Rights Watch also attended five sessions of his trial and read the more than 500 pages of his case file, including the 239-page written judgment detailing the court's reasoning behind his conviction, and dozens of news reports about his case.
Radi spent one year in pretrial detention, the maximum under Moroccan law. The investigative judge examining his case and, later, the trial judge, refused at least 12 requests to provisionally release Radi, without ever providing individualized and substantive reasons, as international human rights standards require.
Radi was convicted of harming the State's internal and external security through acts of "espionage" on behalf of foreign firms, organizations, and states, including the Netherlands and the United Kingdom. The guilty verdict was based primarily on text exchanges Radi had with a Dutch diplomat, and contracts he signed with British corporate consulting firms to conduct research on Morocco's private economic sector.
Developing journalistic contacts or collecting and sharing non-classified information are protected activities under international law. In its review of the case file, Human Rights Watch found no evidence that Radi did anything except carry out ordinary journalistic or corporate due diligence work and maintain contact with diplomats, as many journalists and researchers do routinely. The file contains no evidence that he provided classified information to anyone, or that he ever obtained such information in the first place.
During the trial, one of the men the prosecutor claimed was a "foreign spy" tasked with "extracting classified information" from Radi, denied the accusation in a letter to the court and asked to testify in Radi's defense. The judge ignored the denial and request without justification.
The tribunal's written judgment featured several dubious arguments to justify a guilty verdict of espionage.
These included that communicating exclusively via text messages with a contact at the Netherlands embassy was a "security precaution" that "proves [Radi] was well aware of the suspicious nature of the activities" he engaged in with foreign diplomats. The judgment also argued that Radi's failure to publish articles after contacts with Dutch diplomats was "evidence" that the contacts "had no relation with journalistic work ... but consisted in fact of espionage activities."
Radi was also convicted for the alleged rape of a female colleague in Le Desk, the news site that employed him. Radi denies the charge and says the relationship was consensual. Although the alleged offenses of rape and espionage are unrelated, the court tried them together.
Authorities' prosecution of sexual violence in Morocco is low. All sexual assault allegations should be properly investigated, and those responsible brought to justice, with a trial that is fair for both the complainant and the accused.
However, the court denied Radi the "equality of arms" in which both parties have the same opportunities to present their case, a prerequisite for a fair trial under international standards. The authorities denied Radi access to his own case file for 10 months.
They excluded the testimony of the key defense witness for "participation in rape," even though the complainant did not accuse the witness of taking part, and no evidence against him was presented to the court. The court also refused to allow examination of the prosecution's witness and rejected a key defense witness in the espionage case.
Radi's case is part of a pattern of Moroccan authorities arresting, trying, or imprisoning independent journalists, activists, or politicians because of their critical writings and work, on questionable charges including sexual misconduct, money laundering, or "serving a foreign agenda," Human Rights Watch said.
"Rape and sexual assault are serious crimes that deserve serious investigations and fair proceedings," Goldstein said. "If the authorities wish to show that Morocco's courts are holding Omar Radi accountable like any other citizen rather than being instrumentalized to lock away a dissident on dubious charges, they need to give him the fair and impartial justice that has been denied him so far."
On July 19, 2021, the Casablanca Court of First Instance convicted Omar Radi both of rape and espionage charges, and sentenced him to six years in prison. Radi was also fined 200,000 dirhams (US$20,000) in damages for the rape complainant. Imad Stitou, a fellow journalist tried with him as a "participant" in the rape case, was sentenced to one year, including six months suspended. Both men appealed the verdict.
Stitou remains free pending an appeals verdict. Radi, who has been in Casablanca's Oukacha Prison since his arrest on July 29, 2020, appeared before the Casablanca Court of Appeals on November 4, the session was postponed until November 25.
Evidence of unfair trial
Defendant Denied Access to the Case File
Prison authorities repeatedly prohibited Radi's lawyers from passing on a copy of his case file to their client, thus depriving him of his right to prepare his defense from his prison cell. Prison authorities gave him full access only after the judge, responding to two complaints from his lawyers, ordered that prison authorities give him full access to his own file on June 3, 2021, ten months after Radi's arrest and two months after the trial started. This prevented him having adequate time to prepare his defense.
While Radi had to fight for months to get his case file, Barlamane.com, a website closely tied with security services, published a lengthy analysis of the case against Radi four days after his arrest, on July 29, 2020. The Barlamane article was clearly informed by extensive access to the case file, and strongly suggested that Radi was guilty as charged.
Key Defense Witness Disqualified
The authorities charged Radi with rape and indecent assault after a female colleague, Hafsa Boutahar, from the Moroccan news website Le Desk filed charges on July 23, 2020, against him.
The accusation was based on events in the early hours of July 13, 2020, at a house owned by the Le Desk director where staff sometimes worked. Radi denied the charge and said he and the complainant had engaged in consensual sex.
Imad Stitou, another Le Desk journalist and a friend of Radi's, testified before the gendarmerie and investigative judge that he was also staying that night in the same large living room on a different couch. His testimony was consistent with Radi's account.
However, on March 18, 2021, Stitou was charged with "participation in the rape," even though the complainant had not accused him of taking part in the alleged assault, neither physically nor verbally.
In their statements to the gendarmerie, the prosecutor, the investigative judge in charge of the case, and in court, both Radi and the complainant supported Stitou's assertion that he never rose that night from his couch. Both Radi and the complainant said that they thought Stitou was asleep before he told the authorities that he had been awake.
After the court charged Stitou for "participation in rape," it discarded his testimony. In its written judgment, the court wrote, "The statements of [Stitou] according to which [he heard the two people have consensual sex] cannot be taken into consideration because he is accused of participation, and denying the charge is in his interest."
In a joint statement released on April 5, 2021, 11 international rights groups said that "by charging Mr. Stitou, authorities have in effect nullified the evidentiary value of his testimony as a defense witness," and remarked that the court should "enable those charged with crimes all adequate means to defend themselves."
Under international human rights law those charged with crimes should be allowed to have witnesses testify on their behalf before the court on the same basis as witnesses against them, Human Rights Watch said.
Evidence Ignored, Defense Witness Rejected
With regard to the espionage charges, the case file makes clear that the prosecutor relied heavily on a statement Radi made to the police, in which he said he had been in contact in 2013 with Arnaud Simons, whom he identified as a former employee at the Dutch Embassy in Morocco.
According to the police report on the case, the fact that the (incorrectly spelled) name "Arnauld Simon" was not featured in the Foreign Affairs Ministry's list of registered diplomats in Morocco, "strongly confirmed the hypothesis" that this name did not point to a real person.
They alleged that it was an undercover Dutch intelligence agent's pseudonym and that the person was extracting classified information from Radi about the 2017 Rif protests. The written judgment indicates that during the trial, the prosecutor endorsed that conclusion and "concluded" that Simons was the "nom de guerre" (in Arabic: "ismoun haraki") of a Dutch undercover agent.
Simons contacted Human Rights Watch in early 2021, and provided images of identity documents and other documents that Arnaud Simons is his name and that he is a Belgian citizen who worked as a contractor for the Dutch Embassy in Morocco between 2013 and 2015.
In communications with Human Rights Watch, and in an open letter he published later online, Simons stated that his contacts with Radi were limited to discussing cultural matters, consistent with Simons' job as cultural attaché at the embassy. By the time of the Rif protests, in 2017, Simons added, he had been gone from Morocco for two years and had not been in touch with Radi since leaving.
In a letter one of Radi's lawyers gave to the judge during a court session held on June 29, which Human Rights Watch attended, Simons provided the documentation and asked to be a defense witness. The judge added the letter to the case file, but rejected Simons' request to be a witness because hearing him in court would "prolong the trial."
The judgment's explanation of the court's reasoning for convicting Radi of espionage does not mention Simons' letter. It instead repeats that the court's "deduction" is that "Arnauld Simon" is a "nom de guerre used by a person who used to work in the Dutch Embassy in Rabat."
Examination of Prosecution Witness Denied
In a letter dated August 10, 2020, and sent to the investigative judge, one of the complainant's lawyers requested that Hassan Ait Braim, a Moroccan-American dual national living in the United States but "currently visiting Morocco," be heard as a witness in the Radi case.
The request was accompanied by a short letter from Ait Braim in which he said he was having a video call with the complainant on July 13, 2020, when he saw "a man dressed in boxer shorts pass behind the sofa, at which point the conversation ended abruptly." Ait Braim said in the letter that he "does not know the truth of what happened [next]."
On August 12, 2020, the day that he received the complainant's lawyer's request for Ait Braim to testify, the investigating judge wrote a letter to the prosecutor to consult with him about it. After the prosecutor approved the request in writing, the investigating judge sent a written summons to Ait Braim. These letters were sent, received, and processed on August 12; the same day Ait Braim came to testify in the investigative judge's office.
Several Moroccan lawyers told Human Rights Watch they were "perplexed" by such swiftness, which they said is extremely uncommon if not unprecedented in Moroccan courts, especially in August, when the Moroccan justice administration is on summer recess. Because of that recess, Radi's defense lawyers told the court that they had been unable to find anyone in the justice system, in August 2020, to file a request to provisionally release their client. That was the same month Ait Braim's hearing process was being expedited.
Radi's defense lawyers told Human Rights Watch that they were not notified about Ait Braim's testimony until several months later, at which point the witness had returned to the United States, where he reportedly lives.
During the trial, Radi's defense team asked the judge to summon Ait Braim for examination, but the request was denied on spurious grounds. The written judgment, which relied partly on Ait Braim's statement, says: "The judge [does not have to summon a witness] as long as he believes in the sincerity of [his] testimony." To ensure a fair trial according to international standards, the defense has the right to question a witness whose testimony is being used by the prosecution.
Speculative Court Reasoning
Several aspects of the court's reasoning behind its guilty verdict against Radi appear to rely on speculative "conclusions" or "deductions" rather than facts.
On the accusation of espionage, the judgment does not identify any classified material that Radi would have knowingly conveyed to a foreign agent, thus constituting the crime of espionage. Instead, it weaves together a series of speculations to reach a guilty verdict.
For example, it says on page 230: "The security precautions [Radi] took [in his contacts] with the Dutch embassy diplomat prove that he was well aware of the suspicious nature of the activities [the diplomat] was tasked with, as demonstrated by the fact that his communications with [the diplomat] were conducted exclusively via text messages [... ]"
The fact that a person relies on text messages as a primary channel of communication does not appear to be evidence of any secret activity or evidence of guilt.
The judgment adds in page 232: "[It can be concluded] that the accused's contacts with secret agents from the Dutch Embassy in Morocco had no relation with his journalistic work, as evidenced by the fact that he never published any article or other journalistic work [in reference to those contacts], but consisted by deduction of espionage activities."
Discussing various topics with various people, including diplomats, without necessarily publishing articles based on those conversations, is routine work for journalists. The court's "conclusion" is speculative and does not appear to be evidence of guilt.
On the accusation of rape, the judgment says in page 224: "Omar Radi's allegation that he had consensual sex with [the complainant] does not stand to reason because if the victim had really wanted to have sex with the accuser, she would have planned it carefully and in an appropriate setting; whereas [doing it] in her employer's house and in the presence of a colleague who would witness the assault is absurd and cannot be the doing of a sane mind."
The court's reasoning about how a "sane mind" would plan a sexual encounter is speculative, and of dubious value in proving the charge. It is also based on gender stereotypes.
The judgment also flatly misrepresents Stitou's statements in a way prejudicial to both himself and Radi. On page 237, the judgment states that Stitou "does not deny" hearing Radi make a particular comment to the complainant, a comment that suggested Radi's guilt and Stitou's complicity. In fact, as shown in the official minutes of his statements to the gendarmerie and the investigative judge, Stitou strongly denied that he heard Radi making such a comment. He also denied it in a court session Human Rights Watch attended, and again in an interview with Human Rights Watch in October 2021.
Earlier Harassment of Radi
Before his arrest in this case, Morocco's police and judicial authorities harassed Radi for years and in multiple ways. He was briefly jailed for a tweet critical of a judge, his smartphone was reportedly infected by a potent spyware that is only sold to governments, and he was relentlessly defamed by websites closely aligned with Moroccan security services.
A Human Rights Watch report published in September 2020 presented several details on those previous incidents.
After a spat with other persons outside a bar in Casablanca in July 2020, Radi and Stitou were prosecuted for insults and public drunkenness. On August 5, 2021, the first instance tribunal of Ain Sebaa, in Casablanca, sentenced the pair to three suspended months in prison. This case was tried without any of the defendants ever appearing in court. Stitou's lawyer told Human Rights Watch that his client never received notification of the trial sessions during which he was marked absent. Radi, who by that time had spent more than a year in prison, was never notified either and the police did not take him from his cell to the courtroom.
On July 7, 2019, around midnight, a motorcyclist blocked Radi's car in Ain Sebaa, a suburb of Casablanca. As Radi tried to drive around him, a dozen more men emerged from the shadows and started smashing his car with sticks, stones, and bricks, Radi told Human Rights Watch. The attackers broke the front passenger window before Radi was able to drive away and flee the scene. Radi's mother later provided photos of the damage to the vehicle to Human Rights Watch.
The next morning, Radi went to a police station in Ain Sebaa and pressed charges. A police officer promised an investigation, provided Radi with a receipt with a police stamp and a file number, and told him to use that number to track his complaint's status at the Ain Sebaa tribunal. Months later, after Radi was arrested over a tweet, his lawyer went to the tribunal to check the status of the complaint. He told Human Rights Watch that the serial number indicated on the receipt was false and did not correspond to any existing judicial file.