Recommendations

To the Moroccan Government

• Take steps to prevent torture and ill-treatment and to verify and ensure that incriminatory statements obtained through the use of torture or ill-treatment are not admitted into evidence, as required by article 293 of the Code of Penal Procedure.
• Ensure that all persons placed in garde à vue (pre-arraignment) detention are informed immediately of their right to a lawyer, and that they have, if they so request, prompt access to a lawyer, access that should include the possibility of being visited while still in garde à vue by the lawyer for a confidential consultation; in accordance with the U.N. Basic Principles on the Role of Lawyers.
• Amend the Code of Penal Procedure to indicate that where there is an allegation of torture or ill treatment, the burden of proof lies on the prosecution to prove that any confession made has not been obtained by unlawful means, pursuant to the recommendation made by the U.N. special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment in his February 28, 2013, report on Morocco.
• Ensure that prosecutors, investigating judges, and trial judges give defendants a thorough opportunity to: raise at any point in the investigation and trial any ill-treatment they may have experienced while in police custody; read carefully their police statement and challenge any alleged inaccuracies in it; and consult with a lawyer prior to their first appearance before a prosecutor or judge.
• Ensure that prosecutors, investigating judges and trial judges reflect in the minutes of the hearing and in the court’s written judgment any statements made by defendants before them about ill-treatment or inaccuracies in their police statements.
• Take steps to eliminate torture and coercion during the preparation of reports prepared by the judicial police. Possible steps to ensure the voluntariness of such statements include videotaping police interrogations; requiring the interrogating official to appear in court for cross-examination; and repealing article 290, as described below.
• Implement the recommendation that the U.N. Special Rapporteur on Torture made based on his visit to Morocco in September 2012 “to further develop the forensic capacity of the prosecution and judiciary and implement the right to complain and to ensure that defendants who first appear before them have a fair opportunity to raise allegations of torture or ill-treatment they may have experienced by the police or intelligence services.”
• Require that judges and prosecutors receive instruction regarding their obligation to investigate rigorously torture allegations regardless of when during a trial the defense raises them and to document their investigation efforts in writing. Such training should include awareness-raising about the reasons, other than a desire to escape punishment, why a defendant may raise torture or ill-treatment at a later phase of the trial, even if earlier in the judicial process the defendant had confirmed the veracity of his or her written statement as it was prepared by the police.
• Educate judges on their obligation to assess the credibility of allegations of ill-treatment even in the absence of physical evidence of torture, and the means of making such an assessment, based on international norms, as set out in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (“the Istanbul Protocol”).
• Educate judges on their obligation, in upholding the “equality of arms” to afford to the prosecution and defense, the opportunity to summon witnesses for questioning if they are brought to the court’s attention and if they appear relevant to determining the truth of the charges against the defendants and, in particular, the truth of incriminatory police statements when these are challenged by the defense.
• To prevent prejudice to defendants caused by inordinate and unreasonable delays in the completion of trials, implement laws that require trials to be completed without undue delay, in keeping with article 120 of the 2011 constitution, which states, “Everyone has the right to a fair trial and to a judgment delivered within a reasonable amount of time.”
• Amend the Code of Penal Procedure to require regular and substantive judicial review of all cases of pre-trial detention, with an increasing burden being placed on the state authorities to justify pre-trial detention the longer the trial is delayed and the person is detained, by showing all possible steps are being taken to ensure a trial as speedily as possible. If the burden is not met, the court should order the detainee’s release.
• Reform domestic law to restrict the jurisdiction of military courts to purely military offenses. Under Moroccan law, the jurisdiction of military courts is extended to also cover crimes committed by civilians against members of the security forces. This broad jurisdiction contravenes a basic norm of international law, which requires trying civilians in civil courts. In addition, military court verdicts are not subject to appeal except to the Court of Cassation, thereby violating the internationally recognized right of defendants to an appeal not only on formal but also on substantive grounds.
• Enact a law that gives force to article 133 of the 2011 constitution, which gives defendants the right to petition the new constitutional court to review the constitutionality of a law being applied in their case.
• Strengthen the fair-trial rights of defendants to ensure an “equality of arms” between the prosecution and the defense by revising Code of Penal Procedure article 290, which gives statements prepared by police inherent credibility in cases involving offenses that incur sentences of less than five years in prison. This law places the burden of proof on the defendant to show that the statement prepared by the police is false. The law should be revised to eliminate this unfair burden, so that a police statement would be treated the same as all other evidence presented in court with no inference made about its credibility.

With respect to the Gdeim Izik case, in which 21 of the 25 defendants are in prison, and the Belliraj case, in which 17 of the 35 defendants are in prison, the Moroccan authorities should:

• Free the defendants still in prison or grant them a new and fair trial. For the Gdeim Izik defendants, any retrials should take place before a civilian court.

• If the cases are retried, the presumption should be that all defendants will be at liberty until their trial. Any individual defendant the prosecuting authorities wish to detain should be entitled to a prompt hearing before a judge to rule on the legality of their detention, with the presumption being for liberty. A judicial decision to detain the defendant pending trial should be based on valid grounds, such as that the defendant is dangerous or is likely to repeat his offenses, tamper with evidence, or take flight;
• When retrying the defendants, the court should examine their allegations of torture and ensure, in compliance with international and Moroccan law, that no statement obtained through violence or coercion is admitted into evidence. The court should conduct investigations even if the physical traces of possible torture may have faded. The investigations should adhere to international standards for investigation of individual complaints of torture, notably those found in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (“the Istanbul Protocol”);

If the court decides to admit into evidence a police statement that the defendant claims was extracted under torture, it should explain in its written judgment why it decided the claims of torture or improper coercion were not credible.

To Governments and Institutions that Provide Assistance to Morocco

Under the rubric of judicial reform and rule of law assistance programs, encourage Morocco to implement the recommendations enumerated above, notably those designed to prompt judges to:

• scrutinize more critically the evidentiary value of statements prepared by the police when defendants challenge their contents;
• devise and follow methods of probing more thoroughly claims of torture or other ill-treatment regardless of when they are raised during the course of the proceedings;
• impose legal limits on the duration of pretrial detention not only during the phase of the judicial investigation but also when a trial fails to get under way or proceed to completion within a reasonable period of time, and to ensure regular and substantive judicial review of pretrial detention orders.