Moroccan Responses

Moroccan authorities provided responses to questions that we raised regarding the cases discussed in this report and fair-trial protections generally. Those responses are reprinted in full in Appendix I. This chapter looks at key elements of these responses, especially the authorities’ defense of the way courts ruled against defendants who sought to have their police statements ruled inadmissible on the grounds that police obtained them through torture or ill-treatment.

Judges are entitled to wide discretion in making these determinations. Defendants, hoping to escape punishment, will attempt to discredit any incriminating statements attributed to them. However, some portion of them may have been coerced into giving false statements. The court, in order to ensure the rights of the defendant, must probe his allegations diligently, often in the absence of evidence that clearly corroborates or refutes those allegations.

Both international law and Moroccan law contain clear prohibitions on torture; Moroccan law prohibits furthermore the admission of evidence obtained through “violence” or “coercion.” The Code of Penal Procedure obliges, with narrow exceptions, the prosecutor to order a medical examination if he or she observes signs of violence on the suspect. If the suspect complains of police violence or requests a medical examination, the prosecutor must order an exam before he or she commences questioning the suspect.[117] The code imposes a similar requirement on investigating judges, but not on trial judges.[118]

In its 2009 report to the United Nations Committee against Torture, Morocco stated:

[A] confession obtained through the use of violence, coercion or torture has no value. Any confession where a causal link between obtaining it and the use of such methods has been established must be excluded. A court must look for such a link to reach a decision on the inadmissibility of the confession.

[T]his is intended to protect the public interest and not the interest of the individual only. Legislation goes even further by incriminating those who resort to coercion to obtain confessions as a deterrent to committing acts violating human rights.[119]

Moroccan authorities emphasized that many defendants do not raise allegations of torture or coercion at the earliest opportunity, that is, upon being presented to the prosecutor or investigating judge after emerging from police custody. They only raise it at a later stage when, authorities say, it is less credible and harder to verify. Regarding the Belliraj, Gdeim Izik, and Moumni cases, authorities told us that the defendants’ claims were not credible because they had filed them late in their trials (see Appendix I below), an affirmation that is neither a legitimate basis, by itself, to dismiss such claims, nor factually accurate in these cases, according to the defendants.

The official minutes of the hearings show that, in fact, several defendants in the Belliraj and Gdeim Izik cases promptly signaled mistreatment to the prosecutor or investigating judge.[120] Defendant Zakaria Moumni, meanwhile, claimed that he had raised torture when he appeared before the investigating judge, but that the latter did not enter his claim into the minutes of the session. There is no third party who can corroborate that Moumni had raised torture, because no defense lawyers or acquaintances attended that hearing.

While the timing of a torture claim may be relevant to assessing its motives and credibility, the fact that a defendant raises it late in the process should not be a basis for summary dismissal. Nothing in Moroccan or in international law prevents a defendant from introducing new arguments at any stage of a trial, including at the appeals level. Nor is there a deadline under Moroccan law for him to exercise his right to request a medical examination to look for signs of torture, under article 88.4 of the Code of Penal Procedure. A judge may decline the request upon providing his reasons, but no law states that he should or must refuse the request merely because it was filed “late.”

There are reasons why a defendant may raise torture claims “late” other than grasping at ploys to escape conviction. Defendants told Human Rights Watch they did not mention torture at their first appearance because the session was over before they knew it, lasting a minute or two before a prosecutor or judge who barely looked up from the police file on his desk. Other detainees told Human Rights Watch that, having just emerged from police custody, they feared reprisal by the police if they raised torture (see Belliraj case, above). Or defendants may be too traumatized by what they have just endured to raise it before the first judicial official they see.

Furthermore, in Morocco as elsewhere, defendants, emerging from police custody may reason on their own, or be advised by their interrogators or even by their own lawyers -- who may be court-assigned or hired in haste -- that “cooperating” provides their best chance for leniency. The police might tell the defendant—as Moumni states happened to him—that he had only to sign a few papers and perhaps answer a few questions, and he would go free. Later, realizing that they face serious charges and a long prison term, defendants may have second thoughts about “cooperating” and opt to repudiate their “confessions.”

The absence of visible traces of physical abuse on the defendants should also not be a basis for summarily dismissing their claims of abuse, as occurred in the trial of Seddik Kebbouri and his co-defendants. While some forms of torture and coercion leave physical signs that last weeks or longer, others, such as slaps, extended sleep deprivation or prolonged imposition of stress positions, leave no clear visible signs.[121] If the court lacks the expertise to evaluate a complaint of torture, it should order an evaluation by a qualified and independent body.[122]

The court should also examine circumstantial evidence relevant to evaluating defendants’ claims of abuse: did, for example, authorities respect the procedural safeguards governing arrest and detention, many of which are in part designed to safeguard against torture? Was the defendant abducted on the street by plainclothes police? Held in a secret place of detention? Prevented from contacting a lawyer or his family? Held incommunicado longer than the legal limit? Some of the Belliraj defendants claimed all of these things to the court, but the judge apparently did not attempt to evaluate such claims before admitting the defendants’ police statements into evidence.

U.N. Special Rapporteur on Torture Juan Méndez conducted a mission to Morocco in September 2012. While hailing the “emergence of a human rights culture,” Méndez noted shortcomings that include:

• Credible testimonies of “undue physical and mental pressure on detainees in the course of interrogations” including beatings (with fists and sticks), application of electric shocks, cigarette burns, sexual assault, threats of rape of the victim or family members and other forms of ill-treatment amounting to torture.
• Insufficient safeguards of the guarantee of access to legal counsel for detainees.
• Poor quality of medical and forensic reports, which undermines their usefulness as evidence.
• Inadequacy of the complaint system regarding allegations of torture and ill-treatment, and of the system for the investigation, prosecution and punishment of perpetrators.[123]

In his final mission report, published on February 28, 2013, Méndez, stated:

The special rapporteur learned that courts and prosecutors do not comply with their obligation to initiate an ex officio investigation whenever there are reasonable grounds to believe that a confession has been obtained through the use of torture and ill-treatment, or to order an immediate and independent medical examination (see articles 74 (8) and 135 (5) of the Code of Penal Procedure) if they suspect that the detainee has been subjected to ill-treatment. It appears that judges are willing to admit confessions without attempting to corroborate the confession with other evidence, even if the person recants before the judge and claims to have been tortured. In addition, testimonies received indicate that many cases that are submitted to the courts are based solely on confessions by the accused, in the absence of any material evidence. This creates conditions that encourage torture and ill treatment of suspects. The special rapporteur was informed that, often, when defendants try to prove their injuries in court, the judge reacts by questioning the credibility of defendants who did not raise the matter at the earliest opportunity – emerging from police custody and appearing for the first time before the prosecutor or the investigating judge.[124]

When the offense on trial involves a crime that carries a penalty of five or more years in prison, the Code of Penal Procedure provides no special instructions on how the court is to treat police statements: it is presumed to be a piece of evidence like any other to be considered on its merits. However, the rules of evidence governing infractions that occasion a sentence of less than five years are different: in that case, under article 290 of the Code of Penal Procedure, when a police officer signs to affirm that the attached declaration consists of the words spoken before him by the suspect, the court is to deem the police’s affirmation as trustworthy unless the defendant can demonstrate that it is not. [125] This presumption places an unfair burden on the defendant who seeks to repudiate what the police says he told them in the absence of a lawyer or any other third party. In the Kebbouri, Moumni, and Sidi el-Bernoussi cases, the courts cited the language from this article in their written verdicts to admit a defendant’s police statement as evidence despite the defendants’ denying them on the grounds of torture or ill treatment. (See also the case of Naf’i as-Sah and Abdallah al-Boussati, as recounted in an earlier Human Rights Watch report). [126]

Morocco should revise its Code of Penal Procedure to extend the evidentiary standard already in effect governing serious crimes to lesser offenses, so that in all penal trials, statements prepared by the police shall be treated like any other type of evidence, with no presumption as to their truthfulness. 

Morocco’s Response to Human Rights Watch on Fair Trial Guarantees

In a statement provided to Human Rights Watch, Moroccan authorities rejected allegations that courts seldom provide fair trials in cases with political overtones, and stated there are no “political trials” in Morocco. According to the government’s statement, the Code of Penal Procedure:

• Provides “all internationally recognized guarantees to uphold the principle of a fair trial, including the presumption of innocence, the right to remain silent, and the provision of an attorney who may visit the detainee from the moment he is placed under garde à vue [pre-arraignment police custody].”
• Guarantees “the right to appeal and litigation over two levels of courts, to legal aid and a translator, to be informed of charges, to publicly and directly confront them, and to bring witnesses.”
• Affirms “the freedom to prove and refute crimes” and excludes “any confession extracted through violence or coercion and punishes the perpetrator, while recognizing that assessing the weight of a confession made before the judiciary [sic][127] is left to the discretion of the court authorities.”
• Tasks the Public Prosecution with “monitoring the judicial police, facilitating its operation, and visiting detention facilities for suspects held under garde à vue, to ensure their lawfulness and the application of guarantees given to suspects.”[128]

This report has examined these assertions by studying specific cases of unfair trials resulting in convictions. The main taint to these trials consists of the court’s admission into evidence of police statements without investigating the allegations made that these confessions had been obtained by torture and other abuse, as well as the court’s admission of other disputed evidence that the court should have scrutinized more carefully, such as written statements by persons whom the court did not compel to testify in person. In only one of the cases featured here did the court order a medical examination when the defendants alleged that the police had beaten their confessions out of them. That medical examination appears to have been completely inadequate and was used by the court to support its finding that the defendants had made their confessions voluntarily.

The government’s statement to Human Rights Watch quoted above warrants two reservations. First, it inaccurately states that a lawyer may visit a detainee “from the moment” he is placed in detention. While this could of course happen if a prosecutor permitted it, the Code of Penal Procedure, as amended in 2011, gives a defendant the right to contact a lawyer after 24 hours in police custody, or a maximum of 36 hours if the prosecutor approves this extension. In cases involving terrorism offenses, the defendant has a right to contact a lawyer after four days in custody, or, if the prosecutor has approved an extension, after a maximum of six days.[129] However, in the cases we have studied, the overwhelming majority of the detainees did not see a lawyer until they were brought to court and had already signed, or not signed, their police statement.  To our knowledge, the only exceptions were the political figures among the Belliraj defendants. Their lawyers were able to see them while they were still being held at Maârif Police Station in Casablanca. However, the lawyers were not present when police interrogated them or presented them their statements for signature.  

Second, authorities’ statement that defendants have the right to two levels of appeal and litigation is accurate insofar as it refers to defendants convicted by civilian courts of first degree. They have a right to a trial before an appeals court and after that to petition for cassation. However, it does not apply to defendants before military courts, be they military personnel or civilians. The code of military justice provides no appeal except cassation, which examines issues of procedure, jurisdiction, abuse of power, and application of the law, but not of fact. In contrast, appeals courts in the civilian court system are permitted to review the facts.