Committee against Torture

Forty-seventh session

31 October–25 November 2011

Consideration of reports submitted by States parties under article 19 of the Convention

Concluding observations of the Committee against Torture

Morocco

1.The Committee against Torture considered the fourth periodic report of Morocco (CAT/C/MAR/4) at its 1022nd and 1025th meetings (CAT/C/SR.1022 and 1025), held on 1 and 2 November 2011, and adopted the following concluding observations at its 1042nd, 1043rd and 1045th meetings (CAT/C/SR.1042, 1043 and 1045).

A.Introduction

2.The Committee welcomes the submission of the fourth periodic report of Morocco, the written replies provided by the State party (CAT/C/MAR/Q/4/Add.1) to the list of issues (CAT/C/MAR/Q/4) and the supplementary information provided orally by the Moroccan delegation during the consideration of the report, although it regrets the delay of over two years in its submission. The Committee welcomes the constructive dialogue held with the delegation of experts sent by the State party and thanks it for its detailed responses to the questions raised, as well as the additional written replies which have been supplied.

B.Positive aspects

3.The Committee takes note with satisfaction of the action taken by the State party during the period under consideration regarding the following international human rights instruments:

(a)The ratification of the International Convention for the Protection of All Persons from Enforced Disappearance, in April 2009;

(b)The ratification of the Convention on the Rights of Persons with Disabilities and its Optional Protocol, in April 2009;

(c)The ratification of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, in April 2011;

(d)Recognition of the competence of the Committee to receive and consider individual communications under article 22 of the Convention; and

(e)The withdrawal of various reservations to a number of international conventions, including the State party’s reservations to article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination and to article 14 of the Convention on the Rights of the Child and all of its former reservations to the Convention on the Elimination of All Forms of Discrimination against Women.

4.The Committee also takes note with satisfaction of the following measures:

(a)The adoption by referendum, on 1 July 2011, of a new Constitution which contains new provisions concerning the prohibition of torture and basic safeguards for persons who are arrested, detained, prosecuted or convicted;

(b)The reform of the legal system undertaken by the State party to adjust and amend laws and practices so as to bring them into line with the country’s international obligations;

(c)The establishment on 1 March 2011 of the National Human Rights Council, which takes the place of the Consultative Council for Human Rights and which has broader powers than the Consultative Council did, and the establishment of regional offices for the protection of human rights;

(d)The establishment of a de facto moratorium on the enforcement of death sentences;

(e)The creation of the Equity and Reconciliation Commission as a transitional justice mechanism for determining the truth with regard to the human rights violations that occurred between 1956 and 1999 and paving the way for national reconciliation;

(f)The organization of a variety of human rights training and awareness-raising activities for justice officials and prison staff, among others.

C.Principal subjects of concern and recommendations

Definition and criminalization of torture

5.While aware that bills that would amend the Criminal Code are currently being processed, the Committee remains concerned by the fact that the definition of torture contained in article 231.1 of the current Criminal Code is not fully in conformity with article 1 of the Convention due to its restricted scope. The definition contained in article 231.1 of the Criminal Code encompasses the main elements of article 1 of the Convention, but does not cover complicity or explicit or tacit consent on the part of law enforcement or security personnel or any other person acting in an official capacity. The Committee also regrets to note that the Criminal Code does not establish the imprescriptibility of the crime of torture, its previous recommendations in that regard notwithstanding (arts. 1 and 4).

The State party should ensure that the bills currently before Parliament extend the scope of the definition of torture to conform to article 1 of the Convention against Torture. The State party should also make certain that, in keeping with its international obligations, anyone who commits acts of torture, attempts to commit torture, or is complicit or otherwise participates in such acts is investigated, prosecuted and punished without the possibility of availing themselves of any statute of limitations.

6.The Committee is concerned by some of the existing legal provisions on torture, particularly those providing for the possibility of granting an amnesty or pardon to perpetrators of acts of torture. It is also concerned by the absence of a specific provision which clearly establishes that the order of a superior officer or of a public authority may not be invoked as a justification for torture and by the absence of a specific protection mechanism for subordinates who refuse to obey an order to torture a person who is in their custody (arts. 2 and 7).

The State party should ensure that its laws preclude any possibility of granting amnesty to any person convicted of the crime of torture or any kind of pardon that violates the Convention. The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should establish a mechanism for the protection of subordinates who refuse to obey such an order. The State party should ensure that all law enforcement officers are informed of the prohibition of obeying such an order and are made aware of the protective mechanisms that are in place .

Basic legal safeguards

7.The Committee notes that Moroccan law provides a number of basic safeguards for persons taken into custody which are designed to prevent torture. It also takes note of the existence of, among other important proposals, draft legislative amendments aimed at ensuring that a person taken into custody will have access to a lawyer more quickly. The Committee is nonetheless concerned by the restrictions placed on the application of some of those basic legal safeguards, both under existing statutory law and in practice. The Committee is particularly concerned about the fact that, at present, a lawyer may not see his or her client until the first hour after the person’s period of detention has been extended, provided that authorization has been obtained from the Crown Prosecutor-General. It is also concerned by the fact that access to the legal aid office is limited to minors and cases in which the possible sentence for a crime exceeds five years. The Committee regrets the lack of information on the practical application of other basic safeguards such as examination by an independent physician and notification of the family (arts. 2 and 11).

The State party should make certain that the bills currently under consideration ensure that all suspects will have the right to enjoy, in practice, the basic safeguards provided for by law, which include their right to have access to counsel at the time of their arrest, to be examined by an independent physician, to contact a relative or friend and to be informed of their rights and the charges against them , and to be brought before a judge without delay. The State party should take the necessary steps to ensure that people have access to their lawyers as soon as they are taken into custody, without any need to obtain prior authorization, and to put in place a system for the provision of effective legal assistance free of charge, particularly in the case of persons at risk or who belong to vulnerable groups.

Anti-terrorism law

8.The Committee notes with concern that Anti-Terrorism Act No. 03-03 of 2003 does not set out a precise definition of terrorism, as required in order to uphold the principle that there can be no penalty for an offence except as prescribed by law. It is also concerned by the fact that the law in question defines advocacy of terrorism and incitement of terrorism as offences, which can be defined as such even if they do not necessarily involve an actual risk of violent action. In addition, under this law, the period during which a person may be held in police custody is extended to 12 days, and access to a lawyer is not permitted until after the sixth day, which places suspects who are being held in custody at greater risk of torture. It is precisely while they cannot communicate with their families and lawyers that suspects are most vulnerable to torture (arts. 2 and 11).

The State party should revise Anti-Terrorism Act No. 03-03 in order to improve the definition of terrorism set forth therein, reduce the maximum amount of time during which a person can be held in police custody to the absolute minimum and permit access to counsel at the start of the period of detention. The Committee recalls that under the Convention no exceptional circumstance whatsoever may be invoked as a justification of torture and that, in accordance with various resolutions of the Security Council, notably Security Council resolutions 1456 (2003) and 1566 (2004), and other resolutions on the subject, any measure taken to combat terrorism must fully comply with i nternational human rights law.

Non-refoulement and the risk of torture

9.The Committee is concerned by the fact that the State party’s existing extradition and refoulement procedures and practices may put persons at risk of torture. The Committee recalls that it has received individual complaints against the State party under article 22 of the Convention regarding extradition requests and it is concerned by the decisions and action taken by the State party in these cases. The Committee is disturbed by the State party’s current de