The International Law Framework

International human rights law enshrines the right of a defendant to a fair trial and defines many components of that right. It also defines rights during arrest and detention that are intended, in part, to protect a defendant’s right to a fair trial by, among things, creating safeguards against the use of torture and other improper methods of coercion to extract a statement incriminating oneself or third parties. Such statements should be inadmissible in a fair trial.

The International Covenant on Civil and Political Rights (ICCPR), ratified by Morocco in 1979, contains in article 14 the most basic affirmation of fair-trial rights. It states in part:

1.       All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….

2.      Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3.      In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

Article 14(c)’s guarantee of a trial “without undue delay” is reinforced by article 9(3), which states, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”

Of particular relevance to this report is the guarantee not to be compelled to testify against oneself or to confess guilt in article 14(g) and the guarantee of equality of arms in article 14(e). On the former, the U.N. Human Rights Committee’s General Comment states:

This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt….[T]he burden is on the State to prove that statements made by the accused have been given of their own free will.

On equality of arms, the Human Rights Committee states:

This guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution. It does not, however, provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings.[132]

The U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by Morocco in 1993, seeks not only to abolish torture for its own sake, but also to prevent torture or other forms of ill-treatment from undermining the right to a fair trial. It gives an individual the right to complain of torture to authorities and to receive a prompt and impartial investigation of his complaint (article 13). It also requires states to ensure that any statement “made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made” (article 15).

Morocco amended its penal code to define and criminalize torture and to exclude as evidence confessions obtained through “violence” or “coercion.” But in practice, as the cases in this report suggest, the courts make little effort to investigate allegations that interrogators used torture or improper force to obtain confessions before admitting such confessions into evidence, where they became the main basis for a conviction.

The ICCPR gives all defendants the right to be tried “without undue delay” and, if in pretrial detention, the right to be brought to trial within “a reasonable time” or released. Neither international nor Moroccan law specifies a maximum time period for pretrial detention or what makes it excessive. Various factors, such as the complexity of the case, merit consideration.[133] However, a suspect held in custody pending trial has a right to periodic review of his pretrial detention by a judge, who must, in prolonging the detention, provide the reasons it is still warranted, bearing in mind that detention before trial must be the exception rather than the rule and that proceedings toward the trial must be speedy.[134] Prolonged pretrial detention without such a review conducted periodically by a judge can constitute a form of arbitrary detention, which the ICCPR prohibits in article 9.

International norms emphasize that defendants have the right to consult directly and promptly with a lawyer. The U.N. Basic Principles on the Role of Lawyers states in article 5 that persons taken into custody or charged with a criminal offense are “immediately” informed “of their right to be assisted by a lawyer of their own choice.”  Article 7 states that the access should be “prompt…and in any case not later than forty-eight hours from the time of arrest or detention.”  Article 8 makes clear that the right to access includes a visit: “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay…”[135]