5 2012 ///       
The White Book
2009-12-12
In the name of Allah, Most gracious, Most merciful, and may the greetings and prayers of Allah be upon His Prophet Muhammad

The White Book
The Savant Hassan El Kettani and the Yardstick of the Moroccan Justice
A report regarding
The circumstances of the legal proceeding against Professor Mohammad El Hassan Echcherif El Kettani, his trial, and the legal breaches that it knew.
In this report, we touch on three axes in which we tackle the circumstances of the legal proceeding against Prof. Mohammad El Hassan Echcherif El Kettani and his trial.
1- Axis one: The multiplicity of the legal proceedings and the diversity of the accusations.
2- Axis two: Implicating Professor El Kettani in the events of May 16th.
3- Axis three: The breaches in the preliminary inquiry, in the judicial investigation, and in the trial.

I: The multiplicity of the legal proceedings and the diversity of the accusations:
*The first phase: An alleged complaint by the particular individuals.
It was alleged that Mr. Al Tayeb Bouriya and El Hassan Al Chebbari had filed, on behalf of the group of inhabitants in Al Wad neighborhood in the city of Sale, a complaint to the judicial police service and the administrative authority. The complaint stated these peoples attachment to the harm that they were subject to since Professor Mohammad El Hassan Echcherif El Kettani was appointed as Imam of Makkah mosque. They stated that the harm is manifested in a change at the level of performing the act of worshipping, which led them to leave this mosque and move to another farther mosque.
During this phase, the investigation was focused on claiming that when Professor El Kettani was appointed as Imam and started giving lessons in this mosque, he was inciting to violence, that he was inciting to make prayers and collect donations to Bosnia, Chechnya, and Afghanistan, and that he was also inciting to Al Jihad in these countries in order to support the Muslims there.
The kings prosecuting attorney in the court of first instance of Sale instructed that this case be resolved. I listened to him and prepared a report written according to that, and in which he denied and refuted all these accusations. He declared that he had never incited to violence and he denied all the other deeds that were attributed to him.
Upon referring this report to the kings prosecuting attorney in the Court of First Instance of Sale at the beginning of February, he considered that the complaint and accusations do not contain any elements that constitute any crime according to the law against Professor El Kettani. Thus, Professor El Kettani was immediately released after theoretical surveillance for a period of two days at the judicial police headquarters.

*The second phase: The proceeding by the office of the attorney general:
Professor El Kettani was surprised with the decision of arresting him by the investigating judge in the court of appeal in Rabat under the pretense that he formed a criminal gang. He was accused of directing the gang, of deliberately causing a trouble which will disturb the tranquility and veneration of worship, and of using and claiming a character which the general authority identified the conditions of attaining, i.e. he used to preach without having the authorization to deliver the Friday preach, and he held public meetings outside the mosque and in Al Maamoura forest with no previous license. In addition, he practiced an activity in a non-authorized association and was accompanied by Hicham El Saber, Nour Eddin El Zridi, Mohammad El Yabur, Ahmed Bennacer, Tawfik El Fatimi, Abdelkader Tima, Jawad El Bakkali, Mohammad Adri, Hmidou El Maliki, and Bouazza Idiha.
After a small period, Mr. Abdelwahab Rafiki got arrested and associated with this file. He was accused of forming a criminal gang and of participating in it, given that he was present with Professor El Kettani and the people mentioned in Al Maamoura forest. The judicial police accused them of agreeing on violently calling for acts of virtue and forbidding the evil against delinquents and the violators of religious teachings in the city of Sale, and particularly inside the area of Wadi Al Dhahab.
The judicial police while ending the report concluded by saying that Professor El Kettani is an active element in the Al Salafiya Al Jihadiya organization, that he spread his mission that reflects his extremist orientation and aims at affecting the safety of the citizens, that his attendance to the excursion that was held in Al Maamoura forest with Seikh Abdelwahab Rafiki was an attendance to a military training camp, and that he exploited a group of youth to implement the plans of this terrorist gang. What proves this according to the claims of the attorney general office- is that he incited those young people in Al Maamoura forest to perform purifying campaigns even if with force, which the attorney general office considers as a first step to a big future plan that aims at creating a chaos in society and at disturbing its stability!.
A procedure of investigation was opened in this sphere. All those youth were (abducted) except Professor El Kettani who surrendered himself in February 18th, 2003 to the investigation judge. The latter listened to him in a primary interrogation report. Some of the accusations that the investigation judge directed to him are: accusations of forming a criminal gang, illegal gathering, founding a non-licensed association, and impersonation. Professor El Kettani denied all these accusations.
Then, the investigation judge decided to arrest Professor El Kettani and put him in the local jail of Sale. After that, Professor El Kettani was listened to in a detailed record with the presence of his lawyer who confirmed that he does not belong to any group or any criminal gang, and that he has never incited anyone to do the work of the call for acts of Virtue and forbidding the evil by force or violence or by terrorizing, that he did not have any scheme that affects the physical and financial safety of people and of their properties, and that he was giving preaches and lessons of guidance legally at Mecca mosque and in public. The mosque is open to the public and the local authority representatives are present there. The lessons were focused on the study and the teaching of the book "Minhaj Al Muslim [The path of the Muslim], written by Sheikh Abu Bakr Al Jazairiy. The book is in the context of the Maliki rite, and never called at all for any acts of terrorism, hatred or abuse to anybody.
After that, the investigation judge listened to Mr. Omar Hassan Al chaabari and Tayeb Bouriya and inquired of them on the complaint that they have made concerning Mohammad El Hassan Echcherif El Kettani. They both confirmed that he had never filed any complaint against Professor Mohammad El Hassan Echcherif El Kettani, and that they had never known him until they came to the judicial police. More than that: Al Chabari Hassan declared that he does not even pray. As for Tayeb Bouriya, he declared that he prays in another mosque and that he has no relationship with the mosque of Mecca. The same thing was declared by each of the following people: Mostafa Adri, Tawfik Al Fatimi, Ahmed Bennaser, Mohammad Al Yabor, Abdelkader Kader Tima, Jawad El Bakkali, Noureddin Zraydi, Bouazza Idiha, and Ahmed Al Madkis. They all stated that they were not associated with any organization or any gang, and they do not have any relationship with Professor Mohammad El Hassan Echcherif El Kettani, and that they were praying in the aforementioned mosque sometimes only and that they have nothing to do with each other.
Thus, they also deny that Professor El Kettani incited them to do acts of violence in his sermons or his lessons or through publications, or that he was inciting to collect donations or to make Jihad in Afghanistan and Chechnya. Therefore, they are surprised with their presence in this file.
In front of this frequent denial of all suspects as well as the denial of the witnesses, the record of Tayeb Bouriya and the record of El Hassan El Chabbari who were the basis for the proceeding against Professor El Kettani are fake and did not contain valid complaints. This file is conspired against Professor El Kettani for certain unknown objectives and reasons. Any simple presumption confirming the accusations and facts associated with Professor El Kettani is absent. Thus, the investigating judge issued an order on April, 2nd 2003 to grant provisional liberty to each of Mustafa Adri, Tawfik Al Fatimi, Mustapha Bennasser, Mohammad Alyabor, Abdelkader Tima, Jawad Al Bakkali, and Noureddin Zraydi, Bouazza Idiha, and Hamidou Al Maliki. However, the investigation judge refused to grant the provisional release for each of Hicham El Saber, Mohammad Abdelwahab Rafiki and Mohammad El Hassan Echcherif El Kettani without any legitimate justification. The reason behind this decision was that the accused did not have adequate safeguards to attend. These safeguards were not explained despite the fact that the accused had stable work and housing.
Nevertheless, after that the investigating judge ended his investigation of this file since the month of March 2003, the decision not to issue a proceeding against Professor El Kettani was anticipated, given the absence of any evidence against him and his denial of all the charges against him. But the file remained in abeyance, without any justification throughout the month of April and beginning of May.


* The third phase: transferring the file from the investigating judge of Rabat to the investigating judge of Casablanca:
In the wake of the bloody events on May 16th, 2003, the investigating judge in the Court of Appeal of Rabat, Mohamed Al Hafaya, issued a decision to refer Professor El Kettani to Casablanca, under the pretense that the facts associated with him are linked to facts and accusations against the group of Youssouf Fikri which consists of 31 accused, and who were proceeded against for intentional murder, participation in the intentional murder and the intentional abuse, theft, forgery, and unlawful assembly. This was in the pretext that Professor El Kettani had a close relationship with the accused people in this last file. So the file was referred on the basis that the investigation judge in the Second Chamber in the city of Casablanca, Mr. Najim Ben Sami, investigates on the basis of including his file in the dossier of Youssef Fikri.

II: Implicating Prof. El Kettani in the events of May 16th.

A new legal proceeding:
The office of the attorney general referred the file to the investigation judge in the court of appeal in Casablanca via an additional solicitation that seeks to have a legal proceeding against Professor Hassan for having: formed a criminal gang, for deliberate mass killing, having contributed to mass killing, contributed to deliberate harm that causes an eternal handicap, contributed to an assault that causes wounding, threatened the internal security of the government under the pretext that he is one of the leaders of Al Salafiya Al Jihadiya, and for having incited the group that caused the crimes of May 16th events. The office of the attorney general relied on some reports which are among 25 reports in which the accused mention that professor Kettani incited them to conduct criminal acts.

-A new investigation:
A new procedure of investigation was opened based on this legal proceeding. In the primary hearing, professor Kettani denied all the facts and accusations that were directed to him, emphasizing the fact that he is a Sunni Maliki. After a short period, a detailed questioning was held and it lasted for half an hour, in which the accused strictly asserted his refutation to all the accusations and facts directed towards him, that he is a Sunni Maliki like his parents and grand-parents, and that he has nothing to do with what is called as Al Salafiya Al Jihadiya or with the events of May 16th, 2003. He also denied that he incites to violence or that he is against the Moroccan Jews, and that he never called for acts of virtue and forbidding the evil using violence. He added that he met with Al Fizazi and Al Hadouchi in normal occasions, that he does not have with them any special relationship, and that he did previously have some writings and many general religious and cultural articles which are not related to what he is accused of now. He added that his relation with Mohamed Abdelwahab Rafiki who is known as Abu Hafs is a scholarly one and that it is a family friendship relationship and that they did never plan any criminal act. He also maintained that he is against takfir [calling people as unbelievers] the society or takfir any person or any official. He asserted his readiness to confront all the accused people mentioned in these 25 referential reports.
He also added that he denounced the events of May 16 and that he issued 5 statements in this regard which were published during the first week of the events in various national newspapers: Al Asr, Al Nahar, Al Sahifa, etc. He added that he was in prison since February 19, 2003, i.e. three months before the events, and that his goals are: religious awareness and peaceful missionary work in order to decrease: corruption in society, immoderation, and going astray in religion.
The investigation was reduced to one session and to interrogating the accused. The investigation judge did not conduct any other investigation and did not interrogate the accused people who implicated professor El Kettani in May 16th events in police reports.
And based on this single session, the investigation judge issued a decree sentencing the prosecution of Professor El Kettani on July 16, 2003 and turning him over to the Criminal Chamber in Casablanca. That was for having formed a criminal gang, having threatened the internal security of the government, and having committed some aggressions aiming at destruction and mass killing in many areas, having contributed to deliberate murder, having contributed to deliberate aggression that leads to eternal handicaps, and having contributed to deliberate aggression that leads to wounding. This reveals that the investigation judge implicated Professor El Kettani in the crimes that occurred in May 16th and in the acts that are associated to the people who were caught up and whose confessions were recorded at the judicial police and the office of the attorney general. These people confessed that they were planning to perform acts of destruction through assaulting individuals.
The investigation judge considered in the referral decision that professor El Kettani is one of the masterminds of Al Salafiya Al Jihadiya and that he issued fatawa [religious advisory opinions] that call for making aggressions on people, that he is a liar, that he is using religion as a pretext, that he just stood in the shade, that he had authority over the people who caused May 16th event and over those who were going to cause other similar events, and that he formed with them gangs that aim at committing felonies.
These elements that led the investigation judge to issue the decision of the referral to the Criminal Chamber were used during the plead of the Kings vice prosecuting attorney who sought the extreme punishment to be issued against professor El Kettani, i.e. capital punishment.

-The trial of September 2003:
-Invalidating the board: Before raising the issue, the defense of the accused had invalidated the courts board. What is worth stating is that this board, which constitutes the Criminal Chamber and which is headed by Mr. Lahssen Al Telfi, had already decided over the file of Youssouf Fikri, the file which is closely related to the proceeding against Professor Hassan El Kettani and which is so important to the accused people whose confessions were relied upon in the aforementioned proceeding. It also issued a resolution that considers Professor El Kettani one of the leaders of this organism which incites to commit the criminal acts upon which they were proceeded against. Thus, the mentioned board which was convinced about the file is not legally eligible to decide over a case related to another file which it previously decided over. The board of the defense called for exchanging this board, except that the first president of the court of appeal in Casablanca issued his decision to refuse this request and endorsed the board to be legal and to be able to decide over this case.
-The request to summon witnesses: Given that the proceeding is based on the statements attributed to 25 accused people, some of which maintain that Professor Mohammad El Hassan Echcherif El Kettani incited them to commit the acts attributed to them and upon which they were sentenced, the defense judge of the accused asked under Article 319 of the Code of Criminal Procedure to summon those people in order to interrogate them as witnesses. This was with the presence of the accused person, of his defense, and the office of the attorney general in order to ensure the accuracy of the statements attributed to them by the law to the judicial police.
-And although these statements formed the only element which was adopted by the Attorney General in the proceeding, the Court decided to defer a decision regarding it until hearing the accused. After the hearing to the latter - who denied all the accusations against him and stressed that he did not have any relationship with these accused witnesses, that he does not have any agreement with them, that he has never incited them to do any of the acts attributed to him- the defense stressed his request to call witnesses. But it was taken aback by the decision of the court requiring it to postpone the decision of calling witnesses once again until the Office of the Attorney General and the Defense pleads for the essence. This is considered an implicit rejection of the request.
In this way, after that the preliminary investigation was summarized in one meeting that lasted for a single half an hour only, Professor El Kettani did not have the chance during the trial to take advantage of the legal guarantees conferred upon him to defend himself, and the simplest of these guarantees is to summon the people who made pronouncements against him.
Faced with this illegal situation adopted by the court, and in view of the successive breaches of which the most important are referred to below, in addition to depriving the defendant of his right to listen to witnesses, the defense played a mere formal role, given that the accused was denied the simplest means of defense. Therefore, the lawyers decided to withdraw from the case.
It should be noted that a lawyer was appointed for the sake of legal assistance and was given a few hours to support the accused. Given the size of the file, the appointed lawyer stressed that he is unable to engage in his task in a satisfactory manner under these circumstances. Also, the accused clung to his defense board.
After deliberation, the Court issued its verdict on September 25th, 2003 to condemn Professor El Kettani and sentencing him to 20 years of firm prison.
The resolution was accounted for with the following reasons:
"And given that under the terms of Chapter 288 of the Moroccan Criminal Law, the legislator gave the court the complete freedom in forming its convictions for all the pronouncements discussed in front of it, and it should base the pronouncement of an accused person before the judicial court in referential procedures on another accused person in guilt or innocence, even if the accused person did not attend it, and who was already forwarded to justice, because the case is within the scope of the discretionary power conferred on it under the said chapter,
"And as the statements of the two accused people who are referred to the court under the referential procedures included in the file came on as supportive and reasonably plausible in the face of the two accused people, Mohamed Abdelwahab Al Rafiqi and Hassan El Kettani, and are considered as a presumption that gained the conviction of the Court, the latter sees that there no need to call those accused people.

III: The breaches in the preliminary research and investigation and the trial
The breaches are particularly represented in the following:

The first breach: concerns breaching the requirements of Chapter 765 of the Code of Criminal Procedure, which stipulates that every action ordered by this Act and which did not prove to be performed in a legal way is to be considered as if it were not performed. So on the basis of the request of the Office of the Public Prosecutor, the investigation judge in Rabat issued a decision to refer the file to the investigation judge in Casablancas Court of Appeal under the pretense that the accusations against the accused person are linked to the case of Youssouf Fikri and the detainees who are with him.
Knowing that orders of the investigation judge are exhaustively specified in the Code of Criminal Procedure, there is nothing at all in this law that qualifies the investigation judge to refer the file to another investigating judge. Hence, this assignment is considered invalid, and all the procedures arising from such a referral are invalid as well.
The second breach: The board that forms the Criminal Chamber which ruled the file is an illegal board. Its formation contradicts Chapter 11 of the transitional procedures, given that it is non-elected, and that the record of the General Assembly of the judges of the Court of Appeal held on 26th December, 2002 has elected the Criminal Chamber, while the person who chaired the board, Mr. Telfi Lahssen, was not elected, and even more than that was not a member of the General Assembly. He had been brought in from the Court of First Instance Al Fida- in the city of Casablanca, which he chaired, and he was appointed by the first President of the Court of Appeal the city of Casablanca. And the Code of Criminal Procedure considers the issued provision of a board which was not formed in a legal way as being void.
Third breach: the courts board who issued the verdict lacked impartiality; because it had already ruled in a case linked to the file of the accused.
The fourth breach: Not having summoned witnesses. And this breach concerns the refusal to summon witnesses, in violation of the balance of rights between the authority of the indictment and the defense of the accused. Reaching the truth required taking all legal actions, including the summon of witnesses, which is a right dictated in Chapter 319 of the Code of Criminal Procedure and the international standard relating to a fair trial.
The fifth breach: Reliance on some elements which were not discussed neither in presence nor orally during the meeting. In association with the fourth violation, and because of not accepting the request to summon witnesses, i.e. those people to whom the police attributed some proclamations that interest the accused, it was not possible to orally discuss these statements orally in the presence of the previously mentioned people, which constitutes a violation of the requirements of Chapter 289 of the Code of Criminal Procedure.
The sixth breach: the breach of the International Convention on Civil and Political Rights, published in the Bulletin Officiel No. 3525 on May 21st, 1980, which states that no matter what the accused persons crime is, he has the right to himself question the witnesses of the adversary. This is because all that is published in the Bulletin Officiel is considered a national legislation bound by application by the national jurisdictions.

IV: The Supreme Judicial Councils Legal Criticism to the Court of Appeal:
After a long waiting period that lasted for nearly four years, the Supreme Council of Cassation decided to revoke the sentence pronounced on Mr. Hassan El Kettani on January 24th, 2007. It was stated in the sentence that: the failure to answer to the pleas and requests of the parties in a legal way and which is registered in the body of the decision is a lack of reasoning and is similar to its nonexistence. The court remanded the file to the Court of Appeal in Casablanca for a retrial.

V: The retrial at the Court of Appeal in Casablanca:
The file moved to the Court of Appeal in Casablanca which postponed the trial in an unjustified procrastination for ten times in a row: 15/6/2007, 20/7/2007, 28/9/2007, 9/11/2007, 7/12/2007, 1/2/2008, 14/3/2008, 30/5/2008, 10/10/2008. And the following meeting was on 26/12/2008. All of this is under the pretext that the witnesses were absent. The court also refused to grant provisional release to Professor Hassan El Kettani despite the availability of all legal requirements and the defenses proposition to give financial guarantees to the court for that.
After that, the court brought the witnesses in Marathon sessions that lasted up to May 2nd, 2009 when all the designated witnesses after testifying under legal oath at the request of the judge- any testimony against Professor El Kettani. More than that, most of them with the exception of Mohammad El Fizazi denied any prior knowledge of Professor El Kettani before that they were caught, and that they only started knowing him in the prison.
At this stage, the file has become empty and Professor El Kettani must have been granted the immediate release because the verdict was pronounced on the basis of the presence of witnesses. The Supreme Judicial Council revoked the sentence that was primarily pronounced. But the defense board was surprised with the judges confirmation of the sentence to Professor El Kettani on May 2, 2009. The judge said: I did not proceed against you based on this file, but taking into consideration the file a whole. This means that he was proceeded against based on the guilt of others and not on his guilt, which is a blatant violation to the principle of original innocence and impartiality of the judge.
A similar sentence is totally illegal and despite this fact the defense raised to the Supreme Judicial Council a note requesting another revocation. Professor El Kettani continued to suffer for a period that now lasted for seven years in a complete absence of any legal justification to arrest him or sentence him to twenty years of firm prison.
What increased all the more the suffering of Professor El Kettani is the refusal of the prison delegation to transfer him to the central prison in the city of Sale that is adjacent to Rabat where his family lives and decided to keep him in the central prison Oukacha in the city of Casablanca. It also banned him from receiving books as well as from his natural rights including his right in marital privacy and the complication of the circumstances of visiting him, which highly exhausted his family and relatives who are only able to visit him in the worse circumstances. This prompted him to write a statement on 25/11/2009 in which he declares an open hunger strike aiming at the disclosure of his right, the declaration of his innocence and getting him out of the forced prison from which he lives.


Conclusions
Within a few months, there were many procedures directed to Professor Mohammad El Hassan Echcherif El Kettani and different reasons for the proceeding. This element in itself indicates the lack of established facts and strong evidence to justify his proceeding. This has led the judicial police in the first proceeding to try to invent arguments against the accused, through the falsification of statements attributed to people who were alleged to have had a complaint against him.
And there was a strange referral of the file of investigation from Rabat to Casablanca in an illegal way.
After the referral in question, a new proceeding was conducted and it aimed at involving Professor El Kettani in the events of May 16th without any legal evidence, knowing that he was detained before those events for more than three months.
Within the scope of this proceeding, the accused person was subject to a formal detailed investigation that did not exceed half an hour.
The trial of Professor El Kettani was conducted by an illegal judicial body which lacked the legal capacity, given that it issued sentences in a case firmly linked to the accusations against Professor El Kettani.
Before this body, Professor El Kettani was deprived of his right of defense through practicing his right to request to summon witnesses.
Hence, the formation of the judiciary board and its lack of eligibility constituted strong evidence of its non-independence and lack of impartiality. And the refusal to summon witnesses in all phases of the trial and the reliance of mere statements attributed to the accused by the police all confirm the breach of the principle of the "presumption of innocence." These elements show that there was in the trial of Professor El Kettani a clear lack of the requirements of fair trial as stipulated in Article 14 of the International Covenant on Civil and Political Rights ratified by the Kingdom.
Despite the revocation of the Supreme Council to the sentence of the Court of Appeal, the retrial, and the denial of all the designated witnesses, after taking the oath, to any testimony against Professor El Kettani, and the files practical emptiness of any evidence of accusation, the Court of Appeal confirmed the sentence of twenty years of firm prison under the pretext of: I did not proceed against you based on this file, but taking into consideration the file a whole. This means that he was proceeded against based on the guilt of others and not on his guilt, which is a blatant violation to the principle of original innocence and impartiality of the judge.
The fact that Professor El Kettani did not benefit from a fair trial on the one hand and the absence of elements that prove the charges against him that would justify forcing him into May 16th events through the participation or incitement to violence on the other hand, only demonstrates that Professor El Kettani was proceeded against for mere practice to the freedom of opinion, which constitutes a violation of articles 18 and 19 of the Universal Declaration of Human Rights and the International Covenant mentioned above.



The defense board of Professor Mohammad El Hassan Echcherif El Kettani