Appendix 4: Response of the Government of Morocco to Human Rights Watch Letter sent September 13, 2010

(Received by Human Rights Watch October 18, 2010)

This is the complete text of the Moroccan government's response to HRW's letter of September, 13 2010, except for two phrases in the first two paragraphs where HRW deleted the names of suspects who have not yet been put on trial:

On January 20, 2010, a uniformed policeman was assaulted; he sustained a knife injury and his firearm and ammunition were seized. An investigation by the judicial police revealed that the assailants belonged to a terrorist network, linked to al Qaeda, that was involved in recruiting and sending fighters to Iraq, Afghanistan, Somalia, and Algeria. After dismantling the 38-member cell, it was discovered that cell members were preparing terrorist actions targeting security forces. They began implementing their plans with the assault on the aforementioned policeman, stripping him of his firearm. The firearm was seized … as is documented in the search and seizure reports prepared in accordance with the law.

Based on this, members of the terrorist cell … were arrested. Due to the exigencies of the investigation, they were placed under garde à vue [pre-arraignment detention] by the National Brigade of the Judicial Police on April 26, 2010, under the supervision and oversight of the general prosecutor. They were presented to the general prosecutor on May 6, 2010, after their detention had been extended twice for 96 hours with authorization from the general prosecutor, in accordance with article 66 of the Code of Criminal Procedure.

The general prosecutor filed a request to question them regarding the acts attributed to them, and they were referred to the investigating judge. After taking their preliminary statement, the judge ordered them detained in Salé Civil Prison.

It is thus clear that the arrest of the aforementioned parties was legal and that they were detained in accordance with the provisions stipulated by law. They were then referred to the competent judicial body within the specified time limit and in accordance with the conditions mandated by law. Similarly, their status as detainees affords them all the legal guarantees given to all arrested persons generally.

On the allegation that the security apparatus arrested them without warrants and in violation of articles 146 and 608 of the Code of Criminal Procedure.

As noted above, the aforementioned parties were arrested by the National Brigade of the Judicial Police and placed under garde à vue in accordance with the conditions specified by the law, which does not require a written warrant for the arrest of suspects. The law empowers the judicial police to ascertain that a crime has taken place, gather evidence of it, and search for the perpetrators, pursuant to article 18 of the Code of Criminal Procedure. In addition, the law has specified the pertinent procedures in cases of crimes that are discovered while they are being perpetrated (flagrant délit), among them the possibility of placing persons under garde à vue if required by the exigencies of the investigation. In such a case, the general prosecutor is informed and may extend the period of garde à vue by written order. These procedures were respected in this case. It cannot be argued that articles 146 and 608 of the Code of Criminal Procedure were violated, as these are related to provisional pretrial detention and not garde à vue, whose provisions are elaborated in Articles 66 and 80 of the Code of Criminal Procedure.

On the allegation that the concerned parties were detained in a secret detention facility and their families were not informed of their whereabouts, in violation of article 67 of the Code of Criminal Procedure.

These allegations are groundless since detention facilities are subject to the oversight and supervision of the general prosecutor’s office. Moroccan law requires suspects under garde à vue to be placed in stations of the judicial police or facilities belonging to the Royal Gendarmerie, which are subject to the oversight of the general prosecutor. The general prosecutor’s office is also informed of every case of garde à vue (articles 66, 67, and 79 of the Code of Criminal Procedure). The office oversees the term and date of such detentions, and it follows the investigations carried out by the judicial police, monitors its actions, and visits the facilities in which suspects are held while under garde à vue.

In every case, the General Prosecutor’s office investigates the legality of the detention, including the reasons for it, the existence of legal provisions allowing it, and the correct application of the procedures accompanying and pursuant to it.

When a request is submitted to extend garde à vue, the law states that the concerned party must be brought before the General Prosecutor or Royal Crown Prosecutor, who examines the condition of the detainee and gives him a hearing in order to assess the validity of the stated reasons for extending the custody period before making a decision. The judicial police are also required to document in their records the hour and date at which garde à vue is imposed, as well as the date the suspect is brought before the General Prosecutor’s office. The General Prosecutor’s office also inspects these records.

In this case, the families of the concerned parties were informed as soon as they were placed under garde à vue in accordance with Article 67 of the Code of Criminal Procedure, as is noted in the hearing report.

On the allegation that the concerned parties were not permitted to avail themselves of their right to contact an attorney during the investigation.

In articles 66 and 80 of the Code of Criminal Procedure, the Moroccan legislator grants suspects the right to contact an attorney starting from the first hour in which garde à vue is extended. An attorney is also permitted to contact his client with permission from the Public Prosecutor’s Office. The issue is one of a right that an arrested person or his defense may avail himself of if he wishes. The law does not compel an officer of the judicial police to bring about on his own initiative the contact between the suspect and the lawyer. In contrast to what your letter states, the General Prosecutor’s office permitted the attorney of suspects Younes Zarli and Said Ziouani (accused in the same case) to contact them after their custody was extended on May 4, 2010. The judicial police filed a report that documents the visit of Mr. Fouad Zaamouti, on behalf of Mr. Tawfiq Moussa’if, to his client Younus Zarli on May 5, 2010. The allegation that the arrested persons were denied contact with their defense is thus  groundless and refuted by documents attesting to a visit from their lawyers.

On the allegation that the concerned parties signed their statements under duress and without reading them.

The law requires an officer of the judicial police to prepare a report containing his observations, statements received, or actions taken under his authority. The person who makes a statement is required to read the statement or have it read to him by the judicial police officer. This must be indicated in the report. The person then signs the report, as does the judicial police officer, at the end of the person’s statement and any additions, if any. If he is illiterate or unable to sign, he places his fingerprint and this is indicated in the report (article 24 of the Code of Criminal Procedure). He may also refuse to sign the statement while citing cause or due to his inability to sign, in accordance with article 67 of the Code of Criminal Procedure.

In contrast to what your letter states, the allegation that the concerned parties signed the statements under duress and without reading them is groundless. Several reports have been filed by the National Brigade of the Judicial Police on persons involved in membership in terrorist cells or in other cases, where the statements remained unsigned by the person who made them because he refused to do so. This suggests that the statements would have been signed had some form of coercion been used.

At the same time, it must be noted that judicial police reports carry no evidentiary weight in criminal proceedings and are made available to the court solely as a reference. The court must base its rulings on evidence presented in the general court session. Indeed, the confession itself is subject to the discretionary authority of the judges. Any confession or evidence that is obtained by force or coercion has no value, and an officer who obtains it is liable to criminal and disciplinary action.

On the allegation that the physical integrity of the concerned parties was infringed upon.

Articles 73 and 134 of the Code of Criminal Procedure state that every public prosecutor and investigating judge must grant requests for medical exams from suspects who were placed under garde à vue or from their lawyers. The general prosecutor and the investigating judge should also automatically order a medical exam if they observe marks on the suspect that warrant the measure.

Based on the documents in the case of the aforementioned parties, both those from the preliminary and preparatory investigations, no suspect claimed he had been tortured or suffered any sort of violence or harm, neither before the General prosecutor nor before the investigating judge. Indeed, Younes Zarli’s lawyer visited him at the judicial police station and made no observations, written or oral, to the police or the General Prosecutor’s office, that would indicate that his client had been tortured or mistreated, although the final paragraph of Article 80 of the Code of Criminal Procedure allows the lawyer to do so.

On the complaints filed by some suspects’ families to rights organizations regarding abduction and detention.

It should be noted that since the counterterrorism law went into effect, this debate has again arisen. Some parties exploit the circumstances in which persons are arrested in a legal fashion to claim that they were forcibly disappeared or abducted. It must be reiterated that persons are arrested in accordance with the law and with all legal guarantees. Moreover, the authorities are required to investigate every allegation of a disappearance and to pursue the responsible party regardless of his position.

In this case, this ministry has received correspondence from some associations claiming that persons were abducted and disappeared. Upon investigation, it was found that they had been arrested and placed under garde à vue for investigation regarding their membership in extremist terrorist groups. Their families were informed of this measure, and the suspects were referred to the competent judicial authority within the prescribed time period and in accordance with the conditions mandated in the Code of Criminal Procedure. They have been detained in a known place regulated by the law and subject to the oversight of the General Prosecutor’s office. The conditions of their detention also allow them to avail themselves of all legal guarantees given to arrested persons in general. Some were visited by their attorneys while in custody at the judicial police station, as Younes Zarli, who was visited by his lawyer while in custody at a time when some associations were alleging that he had disappeared.

Note

Regarding the letter’s statement that if the foregoing allegations are true, they represent a series of violations of Moroccan laws – laws that aim to protect persons from torture and ill-treatment -- it must be noted here that the state has a clear will to stop any extralegal act that harms the freedom and security of individuals. This is illustrated by the number of judicial proceedings initiated against law enforcement officials and the sentences imposed on them. In addition, all complaints and grievances of possible abuses are investigated by the General Prosecutor’s office, and medical exams of victims are conducted when warranted. The General Prosecutor’s office bases its decision for further actions on what these investigations reveal.

It is clear from the organization’s letter that it relies on unofficial channels to collect information without examining facts that would clarify certain falsehoods. It is also clear that the organization has little confidence in the official responses that it receives and is skeptical about information provided by the Moroccan government regarding its counterterrorism measures, which are carried out in accordance with the law and while respecting human rights, including the right to a fair trial.