The testimonies received from those arrested about the use of torture and other ill-treatment during their arrest and detention in the premises of the Al Hoceima police station are as a whole credible by virtue of their consistency and coherence, and the existence of physical and psychological symptoms and sometimes physical traces highly compatible with the alleged abuse.… The accounts provide a pattern of reported events which, if confirmed, involve a range of acts constituting acts of torture and other ill-treatment and violations of the constitutional and legislative guarantees that should be enjoyed by any person arrested or detained.
Both doctors called on judicial authorities to investigate these allegations, and recommended medical and psychological care for many of the detainees they examined.
The Convention Against Torture requires states to “ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction, … that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities, … [and] that any statement which is established to have been 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.”
Morocco’s penal code, as amended in 2006, penalizes the act of torture, defined as, “any act, committed intentionally by a public official or someone acting at his behest or with his express or tacit consent, by which acute physical or mental pain is inflicted on a person in order to intimidate him or her, or to pressure that person, or someone else, to obtain information or indications, or confessions; to punish that person for an act that he or she, or a third person has committed or is suspected to have committed, or when such pain or suffering is inflicted for any other reason based on any type of discrimination.” (article 231.1)
The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, drawn up by the African Commission on Human and Peoples Rights, state that, “Any confession or other evidence obtained by any form of coercion or force may not be admitted as evidence or considered as probative of any fact at trial or in sentencing. Any confession or admission obtained during incommunicado detention shall be considered to have been obtained by coercion.” The principles also state that, “When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the judicial body accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.” Morocco joined the African Union in January 2017.
Morocco’s Code of Criminal Procedure obliges the prosecutor, with narrow exceptions, 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. The code imposes a similar requirement on investigating judges, but not on trial judges. However, the code’s requirement to exclude from evidence any statement obtained through the use of “violence or coercion” imposes an obligation on trial judges to ensure that any statement was obtained voluntarily before using it as incriminating evidence.
Article 290 of the code, however, undermines the obligation to exclude coerced evidence, providing that for offenses occasioning punishments of five years or less of prison time, statements prepared by the police are to be deemed trustworthy unless the opposite is proven, thereby imposing the burden on the defendant to prove that his “confession” to the police was false. The written judgment of the first instance trial of 32 Hirak detainees cites article 290 as a reason to dismiss the defendants’ allegations, arguing that statements to the police can be invalidated only by producing “highly probative evidence such as the testimony of a witness or an expert’s analysis, or something comparable in the form of legally valid documents – but mere allegations without proofs cannot be considered a counterproof.”
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