“The prohibition of torture in Morocco between the implementation of international commitments and the priority of applying the role of the independent justice”
Abstract PhD thesis in public law and political science,
Hassan II University – Ain Shoq Casablanca, Morocco.
By D. Hafid RGUIBI
Moroccan Center for Human Rights and Media Studies and Researches
We have endeavored, through this research about “the prohibition of torture in Morocco between the implementation of international commitments and the priority of implementing the role of the independent justice” to monitor and analyze the proportionality of Morocco vowed commitment to the prohibition of torture in the territory under its jurisdiction with international standards and best practices related to the level of both the normative framework associated with the legislative infrastructure or at the procedural level institutional, judicial or quasi-judicial or preventive, trying to bring in the analysis of various international assessments and national governmental and non-governmental organizations to the question of torture in Morocco, where we have noticed on the one hand considerable gradual development in these various areas hoping to accelerate its pace and strengthen it in the future, on the other hand, we realized some serious deficiencies and gaps hoping to overcome them to suit the dynamic emerging from the constitutional foundation that criminalizes torture and seeks the independence of he judicial authority and the ratification of the optional protocol to the Convention against Torture.
Since the practice of torture is not limited to Morocco, we can mention two important conclusions in dealing with this problem, the first one almost includes various countries, whereas the second one concerns Morocco in particular:
1: – if the changes that occurred on the way most societies have been dealing with torture, including Morocco, through history have moved from the legality of its practice and its use as a punishment and as a part of the judicial system to extract confessions, towards banning it and combatting it, it is not possible to separate those philosophical, religious, political, and legal discussions concerning torture identification and its feasibility which ended in criminalizing it and strictly forbidding it and even banning the possibility to justify recourse to it in any way even in dealing with the danger of terrorism. But that does not mean that the elimination of torture is irrevocable and decisive as it is still practiced in many countries, and is even increasing as reported by Amnesty International in a report in 2014, when it confirmed that “despite the fact that the governments banned the practice of torture that degrades rights in law and recognized the world resentment of its existence ; however, many of them are still practicing torture or practically facilitating it “.
It is true that torture does no longer carry the same holiness as was the case during the ritual celebrations in punishing the wrath ;however while some seek to ban all its kinds in different countries of the world, others legitimize some of its forms, to the extent that others try to devise new methods to prevent revealing its execution or conceal its effects as, nowadays, some of the democratic countries which criminalize torture in all its forms resort to what some call the ” clean torture “, which “Darius Rijali” talked about in his book “torture and democracy”, as one of the most serious forms of torture in the present era, since it leaves no physical effects on the victim ; moreover, it is difficult to be detected and proved.
In other words: Reality still reveals that there is an evolution in addition to differences concerning the use of torture to avenge opponents physically and psychologically in a complete secrecy and in a less libelous statement than before, and in connection with the policy goals and strategies and hegemony in the present and the future; it is what can be described as the transfer of many States in the planning of the political conflict, torture “acclamation” [including the ceremonial] as violence which was lawful at the time of the [can enter within what is described as the Max Weber language. The uniqueness of the State in the monopoly of “Violence Project”], to seek the help of the “hidden” torture at the cellars of prisons and secret detentions, and then to devise new techniques of «clean” torture [which leaves no physical impact], whenever “necessary”, since it has become socially and internationally illegal.
For the reasons above, torture executioners practice it with the utmost secrecy to avoid the possibility of revealing this “violence”, so as not to be held accountable, or attempt to circumvent its absolute prohibition through making up demagogic, or even “legal” excuses, such as the maintenance of public security or public order as a pretext to justify some violations, especially when this justification is irrelevant, which results in a deceiving awareness [or what “Francis Bacon” called counterfeit awareness” when he talked about “Illusions besetting the human mind”( [1] )], or in front of a fake image, as in [The language of Karl Marx, when he talked about the “ideology”) [2] )], as a kind of re-arrangement of securities and sites and the distribution of roles.
What is dangerous about democracy is when there is feeling that the constitutional and legal provisions and the various measures and procedures despite their quality remain unfulfilled, especially that the reality and practice show that those controls frequently tampered in the absence of the independence and the integrity of the judiciary. There is no doubt that the low criteria for the selection of the State staff , and the preference of confidence on the efficiency and the weakness of the configuration programs in addition to the training and the officials’ carelessness ,that encourages law executioners to act in a corrupt and repressive manner, as the findings of the Sub-Commission on the prevention of torture revealed” a strong correlation between the levels of corruption in the state and the levels of torture and ill-treatment; as since the corrupt staff of the State is independent of control , torture and ill-treatment extremely increases which encourages international community to focus more on the implementation of the obstructive national and international independent mechanisms to survey places where individuals are deprived of liberty and make a proactive intervention to prevent torture .
Although the democratic system is supposed to protect the liberty of the press and freedom of information, and to teach people to put an end to corruption and human rights’ violation, and control mechanisms of independent redress, the independence and impartiality of the judiciary and the judicial procedures, and to provide more information on the State staff actions, and promoting transparency and accountability; some of the trends of influence that have control over the democratic system and has a permanent membership in the Security Council, including the United States of America) [3] ), is ready to sacrifice the values for the security needs, make corrupt countries allied with it away from International Accountability in spite of the fact that they are violate human rights and do not respect the democracy principles and the rule of law; and contribute ; therefore to maintain the practice of torture and other forms of ill-treatment as an integral part of the execution of the rule, especially in dealing with the opponents of the government in these countries even when the issues are not associated with terrorism .
And since it is no longer acceptable , nowadays, that the institution supervising the protection of the law and its application is the first to violate it , especially concerning the records of the judicial officer that is expected to deal with either the accused or the defendant in a neutral way and with objectivity and respect for the rules of the inquiry procedures; and since it is no longer acceptable to take the content of such records as they are, ignoring the accused or his lawyer’s request for medical expertise; and as the freedom of the human and his physical and psychological safety is subject to disruption or to the attainment of the balance between the rights of the community that seeks to provide proofs and the rights of the accused to benefit from the presumption of innocence ; the fair independent judge is the ultimate guarantor of the maintenance of the rights and freedoms of persons from exposure to any infringement or violation that can affect the right to the physical and psychological safety of individuals despite the multiplicity of interferers nationally and internationally in the field of protection from torture and ill-treatment.
2: – the legislative shortcomings concerning the prohibition of torture, which have been in question in Morocco until the beginning of the third millennium, during the campaign against terrorism, have been remedied with the adoption of the Moroccan legislature Law No.04-43 considering torture as a crime and completing chapter 231 of the Code of Criminal Law since February 2006 as a result of the combination of several factors and continuous efforts, which led to the conviction that the criminalization of torture itself, regardless of being related to another act that can be considered as a crime, has been achieved gradually
The inquest on the circumstances surrounding the Moroccan approach concerning the implementation of its obligations under the relevant human rights instruments to combat torture, has revealed that the measures taken by Morocco are most often generated from the political condition affected by the national, regional or international variables, especially that the current reality confirms that the multiplicity of the international monitoring mechanisms through nations, on the one hand, and the presence of independent national bodies seeking the protection of human rights in addition to the people’s awareness on the other hand, who benefited from the development of information and communication technology, remain one of the most important pillars that will put an end to human rights violations.
The huge development in the means of communication technologies and the media, which has contributed to penetrate the sovereignty of States made them exposed to external influence and thus, unable to monopolize the media and information or to maintain the elements of their identity or hide their of human rights violation due to the voluminous news and information and ideas flowing images without conditions or restrictions from outside its borders through satellites and satellite channels in addition to the Internet.
The Moroccan decision that criminalizes torture led to more advanced decisions, as is the case when the country removed reservation on article 20 and declared its recognition of the competence of the Committee against Torture to receive complaints under articles 21 and 22 of the Convention against Torture, when strengthened the legal system according to constitutional requirements that definitely prohibit torture in all its forms in 2011, as well as the international endorsement of the Optional Protocol on the Convention against Torture in November 2014, which is considered as a formal declaration that Morocco has entered a new stage to exceed the consolidation of mechanisms from combating torture towards taking precautions against it.
The persistent efforts made by the Moroccan authorities to deal with the legacy of the abuses committed during the “bullets years”, in addition to the various measures and the institutional and legislative protection from torture resulted from the interaction of the State with the recommendations of the “The Equity and Reconciliation Commission” and the national Human rights Institution as well as “the Committee against Torture” of the United Nations besides the pressure exercised by the human rights organizations and national and international organizations , have given the special status of Morocco among other countries in the Field of Human Rights) [4] ). On the other hand, however, national and international reports register cases of torture and ill-treatment, even though they are not practised systematically, as in the past, especially concerning issues that are considered to represent a threat to its security, including those associated with the Western Desert issue, terrorism and mass demonstrations.
No doubt that the practice of torture in such cases puts the feasibility of the various measures and reforms, initiated by Morocco, into question and makes some doubt in the political determination of Morocco to fight against torture and combat all its forms, and its agreement with the various international human rights instruments. But, if Morocco knows significant changes in the human rights’ field as violations no longer exist as in the past, or are less practiced. Judges have to bear the responsibility, especially that the official statistics available on the investigation against the law perpetrators in cases of torture indicate the weakness of the outcome.
Morocco, nowadays, is exposed to international condemnation not only because of doubts about the employment of torture as part of its public policies, or what is called the systematic or organized torture, but also when it tolerates torture operations by some of those entrusted with the implementation of the law, or what it calls violations of the “isolated” or “individual”, because in spite of being individual and isolated, it should be placed under the authority of the judiciary in order to avoid the impunity of the perpetrators, as punishment is the most important action to fight against torture; for the reasons above , the negligence on the part of the Moroccan justice of the perpetrators of this serious offense opens the way for the victims of torture and their families to exceed the national judiciary and seek the international justice and redress.
As part of the third millennium era, Morocco is required to conform to the international commitments as to the anti-torturing organization, more than any time in the past, in order to eliminate any reason that contributes to the possibility that citizens may endure torture or to challenge its credibility in front of citizens as well as the international community, with the adoption of clear rules concerning the use of force to deal with demonstrations, and the activation of the mechanisms to control authority staff and public forces and security during the course of their duties in the protection of public order, and preventing any exercise that does not reflect the orientations of the state pledges, and the provision of redress and compensation to victims , including rehabilitation services.
If the establishment of national and international intervention mechanisms before the occurrence of torture is today the top priority of the international community in the United Nations, we affirm again that torture in Morocco cannot be eradicated without establishing an integrated, independent, efficient and fair judicial system, and with a vigorous level of performance that can gain the confidence of the litigants, as “the first priority”. There is no doubt that all this depend on resolving the problems in the justice sector, in which the human factor and the material one interweave, at the management level. Perhaps the unusual dynamic created by the young Moroccan judges’ generation seeking change, has established a new stage so as to establish the actual independence of judges, especially if the eloquent remarks, which have been agreed on by the professional associations of judges, is taken into account.
On the horizon of rehabilitating the prison system and improving the conditions of detention and keeping the suspects under constant surveillance through the establishment of effective guarantees and including the protection of persons deprived of their liberty in accordance with international standards, and to maintain these guarantees, preventive mechanisms must ensure that the presence of these guarantees and implementing it, and to make recommendations to improve the guarantees system, within the framework of the law and in practice, concerning both the International Committee and the Subcommittee of the Prevention of Torture, or national machineries for the prevention of torture, which was expected to be created in Morocco before the end of 2015.
If the chapter-54/paragraph-1 of the Moroccan new Constitution was about creating a Higher Council for National Security, as a body for consultation on strategies of the internal and external security of the country and the management of crisis situations, and also on the institutionalization of the rules of a good security governance; perhaps the latter concept (the adequate governance) lead to a stage of the laws concerning the control of decision-making related to security in Morocco so as to balance between the security requirements and the respect for human rights, as because of the multiplicity of national and international control mechanisms, Morocco’s responsibility to take various measures that would end the dilemma of torture that always tarnished its image in front of the international community and doubted in all human rights gains made since the end of the twentieth century has been increase.
On this basis, to recapitulate : the eradication of torture from Morocco primarily needs to reinforce the two pillars inextricably linked to each other :
–“the pillar of address” notably the activation of the judicial authority of its powers to ensure respect for the constitution and the laws and fighting against impunity, because if the terms of reference of the National Council for Human Rights have been expanded and its structure has been improved and its independence has been strengthened. And if the independence of the Public Prosecutor Office from the Ministry custodians and the implemention of the terms of reference conferred upon it by the law are still required, especially the control of detention places and the control of the judicial police work, the application of the rules of law to put the law that criminalizes torture into practice and to put an end to any attempt to impunity is also necessary. Moreover, the Authority or the concerned judiciary should take the national and international human rights standards in consideration while pronouncing judgement on the cases being investigated. The civil society organizations are today more than ever, required to strengthen its capacity to monitor the implementation of the State constitutional and international obligations and both from within the National Council of Human Rights or from outside, and investigate the accuracy in the description of the violations and especially in making a distinction between torture on other forms of ill-treatment;
– and “the pillar of prevention” not to overcome the “combatting-stage” but reinforcing both of them, and by emphasising that the effective Prevention System should not be limited to the implementation of the Optional Protocol requirements that has been added to the Convention against Torture and its consequences like permitting national and international supervisors to make regular, independent, sudden and unlimited visits to detention places to prevent torture and other cruel, inhuman or degrading treatment or punishment, but also requires, on the one hand: permitting individuals who have been detained for questioning or awaiting trial to have access to legal advice, medical examination and health care and to challenge the lawfulness of their detention before the judicial authorities, and access to effective mechanisms for complaints against torture and ill-treatment; on the other hand: raising the coming generations on the culture of combatting torture and the prosecution of the State, and reinforcing these two principles within the community through the public media, the school curricula and worship forums, in addition to the training programs of the law executors, especially the security staff and the staff of the detention as well as the members of the medical practitioners
And if the prime minister has confirmed recently that “torture in Morocco has become an act that belongs to the past which means that it is no longer a part of the State policy, the eradication of torture definitively from Morocco will be hard to achieve, unless the State applies the two pillars referred to above appropriately. Although the fact that the king declared that there will be no leniency towards torture executioners in Morocco in 2014 ; will international community ever declare, without hesitation, that torture does no longer exist in the kingdom ?
[1] . Considers Francis Bacon said the mind not submit to us always a true picture of reality and ourselves, it often be surrounded by many illusions.
[2] . ideology when Karl Marx is a group of ideas false therewith, motivated social and material. It is synonymous with false awareness or tumbled position or subsidies.
[3] . The US Senate voted overwhelmingly on Tuesday (16 June 2015) on the Prohibition of the use of torture in a historic vote was aimed at preventing any other use of “interrogation methods cruel” with the detainees and prevents the executive order signed by President Barak Obama in 2009 to the law. In order to make this amendment is in effect, the National Defense Act2016 as a whole must approve in the House of Representatives and the Senate and then referred to the US president for enactment.
*Note: The Senate voted with the consent of the 78 votes against the opposition of 21 on the amendment to the draft law of the credentials of National Defense by Republican Senator john mccain final disposition of democracy Diane Feinstein. He joined about 32 republican decree to all democratic members in support of the legislation. All members who voted “no” of Republicans.
[4] . Morocco has demonstrated the presence of an active during his tenure in the Council of the human rights year ending 18 June 2007 was selected as the representative of Morocco, vice president of this Council and facilitator of the Working Group on the definition of modalities for the periodic review of the destruction and the preparation of the guiding principles of the mechanism; He indulged in particular during his mandate and in the preparation of the modalities of the periodic review of the destruction and embraced a training course for such a mechanism.
