Appendix II: Response of the Ministry of Justice of the Kingdom of Morocco as provided by the Embassy of Morocco in Washington , DC
The Constitution of Morocco has espoused the principles of Human Rights as they are universally recognized. Such an engagement requires Morocco to abide by these principles, not only in its legislation but also within government institutions insofar as they are charged with the protection of individual liberties and the defense of society from criminal activity, ensuring a safe environment for its citizens.
For this reason, the Ministry of Justice has striven to elaborate the rules of the Criminal Code in such a way that they embody and reflect these noble principles. It has worked to develop a relationship of communication and cooperation with national and international human rights organizations, responding to their periodic investigations, exchanging information and providing answers when there arises any violation of the law or abuse of authority infringing upon the rights of individuals or groups.
Your report is seen to focus on a group of individuals claiming to have been victims of acts of torture, sexual abuse, and illegal detention in a facility of the National Territory Surveillance Department. They also claim to have suffered the following abuses: denial of legal counseling; interrogation while blindfolded; confessions obtained through coercion; detention beyond the legal period of time; and finally, the refusal of the court to hear witnesses or to call in a medical expert to examine certain among them in spite of clear evidence of torture. In addition, they protest that the majority of them were not informed by the examining magistrate of their right to appoint an attorney. The individuals in questions are as follows: Abdelghani Ben Taous, Mostafa Denbat, Ahmed Chikou, Abderrazak Zitouni, Aziz Chafii, Abdelhamid El Yagzhi, Mohamed Chadli, and Noureddine Gharbaoui.
1. Physical and mental torture of prisoners and the inhuman treatment to which they were subjected:
As we treat of this question, it is important to point out that the Criminal Code has given the Attorney General the authority to oversee the work of the judiciary police as well as to monitor the procedures followed for arrest and detention. The law also clearly stipulates that a detailed report be provided concerning the conditions of the arrest of suspects as well as the subsequent investigation and perquisites.
In the event that the Attorney General or the District Attorney notices any sign of violence or torture on the suspect when he is presented before the court, or if the suspect makes a request concerning such acts of torture, the Attorney General or District Attorney will immediately call in a medical expert and open an investigation of the affair.
In order to enforce these provisions of the law, the Ministry of Justice has issued several circular letters to judiciary officials and conducted several meetings with them in order to sensitize them to the importance of respecting the principles of human rights, of opposing all forms of violence and torture regardless of the parties concerned, and of taking appropriate legal action in the event of such abuse.
It is to be noted that in the majority of the statements issued by the judiciary police and the examining magistrate, no mention is made of any request on the part of the aforementioned individuals for a medical expert while in police custody. Neither was there any evidence to move the judicial authorities to call for a medical examination. Furthermore, the prisoners themselves did not mention any abuse or call for a medical expert during their first appearance before the judiciary police or the prosecutor, although in nearly every instance they were accompanied by their attorneys.
2. Violation of the right to be assisted by an attorney when questioned by the public prosecutor or the examining magistrate:
The report speaks of a disregard for the right of the accused to appoint his own attorney. In the event that the accused is caught in the act of committing an offense, the Criminal Code requires the prosecutor to inform the accused of his right immediately to appoint an attorney, to question the accused about his identity, and to notify him of the offenses with which he is charged. The examining magistrate must also verify the identity of the accused when he is presented before him for the first time and inform him of the charges as well as of his right to an attorney. If the accused does not exercise his right to choose his own defense, the examining magistrate, on the request of the accused, will appoint an attorney and make note of his appointment in the official statement.
In examining the files of the individuals who claim to have suffered abuse, it is clear that neither they nor their attorneys made any mention of such abuse before the public prosecutor or the examining magistrate.
3. The use of violence to obtain confessions and the signing of statements under coercion:
The allegations that violent methods were used to obtain confessions or that the signing of statements was obtained under threat are groundless and unsupported by any evidence, since no complain was lodged by the individuals in question or by their lawyers during the course of legal proceedings. Moreover, the Criminal Code expressly provides that confessions obtained through violence or under threat are not to be accepted in court and places the confession, along with all other evidence, under the discretionary authority of the judge.
4. Illegal police custody:
The Criminal Code provides that, after an individual has been taken into custody, the judiciary police must immediately inform the public prosecutor as well as the individuals family so that the procedure followed for police custody might be properly monitored. When the judiciary police requests the extension of police custody, the law requires that the accused appear before the Attorney General or the District Attorney, who will inspect his condition and hear the prisoner in order to judge the relevance of prolonging the period of detention, before making a decision. The judiciary police are also required to note in its official records the date and time when the accused was taken into police custody as well as the date of the appearance before the public prosecutor. These records are subject to the oversight of the public prosecutor.
After a review of the statements issued by the judiciary police, it is clear that the procedures set out for arrest and detention were fully respected in these cases. However, it is common for the accused and their lawyers to protest against abuse before the public prosecutor or before the [examining committee] only after the trial is underway and not at the beginning, in order to verify allegations which, in most cases, are unfounded and used by the accused or their attorneys as a ploy for the defense.
The allegations claiming that the accused were presented blindfolded before the public prosecutor are false and have no legal basis. Such a claim was never made, either before the public prosecutor on the occasion of the first appearance of the accused before the examining magistrate, or during the course of the trial. Furthermore, no such complaint has been lodged on their behalf with any organ of the judiciary system.
In what regards the existence of a special facility used as a detention center by the National Territory Surveillance Department, according to the provisions of the Criminal Code, all suspects are to be placed in custody at a station of the judiciary police or of the Royal Police, which are subject to inspection by the public prosecutor. After they have appeared before the public prosecutor and been formally charged, they are transferred to a facility under the authority of the [Penitentiary and Rehabilitation Administration, in accordance with the organic law of this Administration.]
The case of Mr. Mohammed Hassan El Kattani:
The report addressed a number of issues that had given rise to numerous questions, in particular concerning the position adopted by the court when presented with a request of the attorney of the above-named accused, calling for the subpoena of witnesses who testified against the accused in order to hear them again and challenge their testimony. The court, at the request of the public prosecutor, ordered the postponement of the subpoena of witnesses in order first to interrogate the accused.
After the interrogation of the accused in presence of his attorney and of the other persons charged in the same case, the court deliberated concerning the request for the subpoena of witnesses and decided for its denial. The attorney for the defense protested against the decision of the court and withdrew from the session. The court immediately assigned a new attorney for the defense. The accused rejected the assignment of a new attorney, insisting on the return of his original attorney. The court therefore decided to proceed with the session without the presence of an attorney for the defense, considering that it had exhausted all means provided by the law and could not remain inactive, at the mercy of the defendant and his attorney. The court invoked as justification the Supreme Court decision No. 759 L 7 of May 19, 1964, which states as follows: The proper functioning of the court cannot be subject to the will of the defendant or his attorney; if such were the case, the latter would be capable of obstructing justice, which cannot be the intention of the legislator.
In conclusion, it is within the competence of the court to deny such a request for the subpoena of witnesses, according to its assessment of the circumstances of each case.
In what regards the emigrants and exiled citizens mentioned in the report, the information provided is insufficient to the formulation of a reply.
In reply to two questions raised by the report:
The report asks for specific information on two questions:
The first question regards the number of individuals brought to justice on charges of terrorism since the events of May 16.
The second question concerns the measures taken to prevent and punish abuse against detainees by members of the police force.
In answer to the first question: the number of persons brought to justice on charges of terrorism reached 1,748 as of June 3, 2004, including 315 cases still under investigation, 199 cases still ongoing before the district court or the court of appeals, and 1,234 cases in which sentence has already been passed.
As for the second question, the Criminal Law has given the public prosecutor the authority to oversee the work of the judiciary police as well as the procedures for arrest and detention. It also provides that in the event of a violation of these procedures, the police statement is declared null and void and the members of the police accused of the offence are to undergo disciplinary measures that may include termination of employment; in addition, the public prosecutor must request an investigation when a member of the judiciary police is suspected of abuse. If guilt is established, a legal action is brought against the officer, in accordance with the law.