The Right to a Fair Trial in the Moroccan Criminal Procedure

by Abdelaziz Nouaydi*

Introduction

This study was written as a contribution to an international symposium which had the following objectives:

--To take stock of national regulations and practices implementing or influencing the application of the right to a fair trial in criminal procedure;

--To compare such regulations and practices and to assess them on the background of the pertinent human rights regulations, universal as well as regional.

The attainment of these objectives will contribute to a more important aim: the implementation of the right to a fair trial at the international level. One of the means to reach such an end is the adoption of a third optional protocol to the International Covenant on Civil and Political Rights, aiming at granting under all circumstances the right to a fair trial and a remedy.⁽¹⁾

This study will analyse the following points:

I. The structure of the criminal courts in Morocco;

II. The rights related to the pre-trial period;

III. The rights during the trial;

IV. The rights after the trial;

V. Some suggestions to make more effective the right to a fair trial at the national and international levels.

I. The Structure of the Criminal Courts in Morocco

The following figure gives a picture of the judicial organisation in Morocco.

(INSERT FIGURE)

At the first level we find the primary courts, "The courts of first instance"⁽²⁾ which cover all Moroccan cities and towns. A number of the primary courts are related to an appeal court on geographic criteria.

At the top of the pyramid is the Supreme Court which is not a third degree of the judicial system. It is mainly a court of "Cassation" which is restricted to issues of law. Beside these ordinary courts there are special courts: the military court, the Special Court of Justice and the High Court. We discuss here the penal competence of these courts.

A. The Penal Competence of the Ordinary Courts

Since the judiciary reform of 1974, the penal cases are handled mainly by the primary courts (the courts of First Instance), the appeal courts and the Supreme Court.

1. The Penal Competence of the Primary Courts

According to Article 2 of the "Dahir"⁽³⁾ of 28 September 1974, called the "Transitory procedures" affecting the penal procedure, the courts of First Instance are competent to deal with infractions and offences⁽⁴⁾ except when they are dealt with by another court by special regulations, for example offences dealt with by the military court or by the Special Court of Justice.

The courts of First Instance are not competent to deal with crimes; these are dealt with by the appeal courts and the special courts. The presence of the public prosecutor is obligatory in penal cases before the courts of First Instance.

2. The Penal Competence of the Appeal Courts

Appeal courts are a second degree for the primary courts. But they deal primarily and definitively with crimes. This is a regrettable choice, because defendants are deprived of an appeal. They can only attack the sentence before the Supreme Court for "cassation." When we know that investigations (by the investigating judge) are not obligatory in criminal cases other than those punished by the death penalty or life imprisonment, we better understand the seriousness of this absence of appeal.

The appeal courts are divided into rooms (civil, personal status, social, "correctionnelle" and criminal). They contain also a public prosecution apparatus led by the "procureur general du Roi".

The "correctionnelle" room is composed of three judges (a president and two members) -- plus the public prosecutor and a clerk. The criminal room is composed of five judges (a president and four members) plus the public prosecutor and a clerk.

The "correctionnelle" room acts as a second degree of judiciary in the offences tried by the primary courts. It deals also primarily and definitively with some offences committed by some judges and some public officers (police and officials), according to articles 269 and 270 of the criminal procedure law. It also examines appeals to the investigating judge's orders.

The criminal rooms deal with crimes primarily and definitively, except the crimes dealt with by special courts.

3. The Penal Competence of the Supreme Court

The Supreme Court can review final judgements only by "cassation" or by "revision." But it cannot review the judgement passed by the High Court which tries ministers for crimes committed while they are exercising their responsibilities.

As an exception, the Supreme Court deals with criminal cases related to some high officials. According to article 267 of the criminal procedure, where the offence is committed by a judge of the Supreme Court, a governor, the first of an appeal court, or the chief public prosecutor of this court, the criminal room of the Supreme Court, on the demand of the public prosecutor, orders an investigation. Afterwards, the judge investigating the case produces an order dismissing the case or sends it before the Supreme Court, which decides in the case with all rooms gathered for this task.

B. The Competence of the Special Courts

These courts have limited competence according to the quality of defendants or to the type of offence. After the suppression of juvenile courts in 1974⁽⁵⁾ the special courts in Morocco are: the Permanent Court of the Armed Forces, the Special Court of Justice and the High Court. These courts deal exclusively with penal cases.

1. The Permanent Court of the Armed Forces

This court is organised according to several laws issued between 1965 and 1976. A researcher in criminal law considers that the special nature of military offences, the submission of the armed forces to a severe and hierarchical system, and the necessity for preserving the reputation of the military institution, explain the existence of the military courts.⁽⁶⁾

This court is established in Rabat but can be held in any place in the country by decision of the authority responsible for national defence. When deciding in infractions and "correctionnelle" offences the court is composed of a civil judge as president and two military judges as councellors. In criminal offences the court is presided over by a civil judge with four military judges as councellors. The civil judge comes from the appeal court where the military court held the trial. The public prosecutor belongs to the military judiciary. The clerk is a military officer qualified for this job. A law governing the military judiciary was issued on 12 July 1977.

This military court is competent to deal with:

1. Crimes, offences and related infractions when committed by soldiers of any rank or by persons in a statutory military situation;

2. The same crimes and offences when committed by the gendarmerie members (they are considered part of the Armed Forces);

3. Crimes in which members of the Armed Forces have participated. Here, the civilians participating will also be tried by the military tribunal;

4. Crimes against the external security of the state committed by civilians or by the military (crimes against internal security of the state will be tried by the military courts if there is participation of a military element);

5. Crimes committed against a member of the armed forces;

6. Crimes of holding weapons without authorisation;

7. Offences by prisoners in military prisons or by prisoners of war.

The judgements of the military court cannot be reviewed by appeal; they only can be reviewed by "cassation." Here, too, we find a deprivation of the defendants from a right to appeal against these generally severe sentences. One can also criticize the great number of offences under the competence of this court, especially when civilians are subject to its rule.

2. The Special Court of Justice

According to the Dahir of 6 October 1972 as amended by the Dahir of 25 December 1980 this court is competent to try public servants accused of stealing public or private money, corruption, abusing their authority (real or pretend). Public servants cannot be tried by this court without a prior written order from the Minister of Justice.

Another condition is that the stolen money or the interests produced by the criminal behaviour amount to more than 25,000 dirhams (about $2,770 US). This amount can be the result of one or more criminal acts. The public servant will be tried before the primary courts if the amount is less than 2,000 dirhams, and before the appeal court (the criminal room) if the amount is between 2,000 and 25,000 dirhams.

The special Court of Justice is characterised by the rapidity and severity of its procedure. The accused person shall nominate his lawyer within 24 hours of being presented to the investigating judge. If not, this judge will designate a lawyer for him. Article 11 of the law governing this court stipulates that investigation must be carried out quickly and completed in a period of not more than 6 weeks. The investigating judge's orders can be reviewed (art. 13). The case shall be submitted to the court even if the investigating judge decides to dismiss it or declares that the court is not competent. It is the court which makes the final decision on these matters. Sentences can not be suspended and they can not be reviewed by appeal. They can only be reviewed by "cassation."

This court is located in Rabat. It is composed of a president, a public prosecutor, a number of investigating judges, a number of vice presidents, a number of counsellors, a number of deputy public prosecutors and some clerks. When considering a case, it is composed of five judges (a president and four members) a public prosecutor and the clerk.

3. The High Court

This court is mentioned in the Constitution of the Kingdom. An organic law was issued 8 October 1977 organising it. It is competent to try government members accused of crimes and offences during their term of office. The parliament is competent to charge those who will be tried before this court by a secret vote and a majority of 2/3 of its members (excepting those members who will participate in the investigation and in the trial as judges). The president of the court is appointed by the King. The members of the court are elected by the parliament (six judges and 3 others (in reserve)). The public prosecution is performed by the public prosecutor of the Supreme Court with the help of the general advocate (deputy public prosecutor) of the same court and two members elected by the parliament for this purpose. The remaining staff of the court is appointed by the Minister of Justice. The judgements of this court cannot be reviewed.

In practice, this court has never been established. It is doubtful that the political character of this court will give enough guarantees of independence, impartiality and competence.

II. Rights and Guarantees During the Pre-Trial Period

Assessment of fair trial conditions begins in the pre-trial period. These conditions are not limited to pre-trial detention conditions. They are more broadly related to the ability of people to have access to justice, to the quality of laws to be applied and to human and financial means at the service of justice.

Here we will restrict ourselves to the rights guaranteed during the pre-trial detention period. We will focus on two aspects -- the rights related to the lawfulness of the detention and the rights related to the human treatment of the detainees.

These rights have far-reaching consequences on the other rights and on the issue of the trial. Arbitrary arrest and detention violates the right to freedom and security of the person. They are an infringement on the presumption of innocence and may lead to the transgression of other human rights. Torture mainly occurs during the first hours and days of the arbitrary arrest and/or detention.⁽⁷⁾

These violations may also have destructive consequences on the person, his family, his social status and environment. What makes this serious is the fact that the justice machinery sometimes tends to condemn the arrested person in order to cover the administrative and judicial mistakes which have lead to it. Dealing with these violations with indulgence or indifference will open the door to arbitrary abuses by officials and judges. It can also lead to using them as a way of settling old arguments of a personal character.

In Morocco the Law of Criminal Procedure of 1959 met the essential guarantees found in a democratic society. This was a result of a political consensus between the monarchy and the political parties forged in the process of the struggle (for liberation) against French colonial rule (1912 - 1956). Afterwards there was a struggle for power between the two forces (the monarchy and the main political party (Istiqlal)). There was also a policy of division and repression designed by the monarchy. All this led to very negative revisions. The main landmarks of this evolution are 1962, 1973 and 1974. They are periods characterised by fierce political struggle and unrest.

In 1962 the criminal procedure was revised in a way that adversely affected the rights of the accused. Pre-trial detention periods during the garde à vue and the preventive detention have been doubled. In 1973 (April) a number of negative revisions affected the "libertés politiques" code (Press, associations, assembly and demonstrations laws). Several guarantees have been dismissed and the penalties strengthened.

In 1974 judicial "reforms" adversely affected the defence rights and the independence of the judiciary. A lot of reforms are badly needed even though some positive developments have occurred. Morocco ratified the Covenant on Civil and Political Rights in 1979 and the Convention Against Torture in 1993. In 1992, the preamble of the revised Constitution stated that Morocco adopted Human Rights as they are universally recognised. Human rights consciousness has developed since the creation of the Moroccan Human Rights Organisation in 1988. Official human rights organs have been established: a consultative Council for Human Rights (1990) and a Minister for Human Rights (1993). A revision of the criminal procedure occurred in 1991-1992 concerning garde à vue and preventive detention. Hundreds of disappeared and political prisoners have been released between 1990 and 1994. These are positive developments. Yet, fundamental reforms are badly needed regarding the legislation, the practices and the resources devoted to justice as we shall now analyse.

A. The Rights Related to the Lawfulness of Arrest and Detention

We discuss here the cases in which the law allows the arrest and detention of persons before trial, the control of the lawfulness of these practices, and the practice of these conditions and controls.

1. The Case in which Law Permits Detention Before Trial

The Moroccan Constitution of 1972 (revised in 1992) affirms in Article 10 that nobody can be detained, arrested or punished except in the cases, and in conformity with procedures, established by law.

When we look at Moroccan law, we find that it allows arrest and detention of persons before trial in three cases: in the framework of garde à vue where a suspect is arrested and held in the custody of the judicial police, in the implementation of a judicial order of arrest or detention and in the context of preventive detention.

a. The Garde à Vue Detention

The officers of the judicial police (police judiciaire) can hold persons in custody in police stations in three situations: in the case of a flagrant offence; during the preliminary investigation and when implementing a judicial order to carry out investigations (rogatory commission).

Two conditions are required to hold persons in garde à vue detention: the presumed offence must be punishable by imprisonment and the necessity of investigation must require the detention. But it is the police officers who estimate that necessity!

The necessity is often related to the collection of information from the detainee, to the recognition and verification of this identity, to his confrontation with other suspects or with witnesses, or to prevent his escape when he has no known address.⁽⁸⁾

Article 69 requires that the police officers notify the detainee's family immediately after they take the decision to hold him in garde à vue custody. In practice, this notification does not occur. The detainee's family, if not present at the arrest, tries to look for their absent member. The law does not establish any sanction for the absence of notification.

Article 69 also requires police officers to indicate in their statements "procès verbal" the exact date and hour of the release of the detainee or his presentation to the public prosecutor or the judge concerned. They must send a list of persons held in garde à vue custody during the past 24 hours to the public prosecutors of the primary court and the appeal court. The detainee must sign the police statement concerning his investigation "procès verbal," and his refusal to sign must be indicated. These lists must be included in a special register with numbered pages signed by the judicial authority (article 69). According to the 1959 law of criminal procedure the term of garde à vue was limited to 48 hours, with a single 24 hour extension permitted with the written approval of the public prosecutor. But the amendment of the Criminal Procedure in 1962 permits the overall doubling of the periods to 96 hours which can be prolonged 48 hours with the public prosecutor's authorisation. Thanks to campaigns by Human Rights NGOs in Morocco and abroad,⁽⁹⁾ largely because of serious violation during the garde à vue detention -- particularly torture -- the Moroccan regime accepted some amendments which return to the initial periods of 48 hours which can be extended 24 hours by a written authorisation of the public prosecutor or the investigating judge. In the offences related to state security the garde à vue period is 96 hours and can be renewed for the same period by written approval of the public prosecutor (article 68 of Criminal Code (C.P.)).

According to article 82, when the offence can be punished by imprisonment, and the necessity of the preliminary investigation requires that the police officer maintains the detainee more than 96 hours, he must present him to the public prosecutor before the end of this term. After listening to the detainee the public prosecutor can issue a written order to maintain him a further 48 hours. The article states that as an exceptional matter the order can be given without presenting the detainee to the public prosecutor, by a written justified decision.

So the door has been open to abuses: a detainee can be held in garde à vue more than 96 (4 days and nights and up to 6 days and nights) without being presented to a judge in offences not related to state security. For those later offences any justification can be accepted for a longer garde à vue detention. What makes things worse is that it is very difficult in practice for the detainee, his family and his lawyer to verify respect for the conditions set by the law for the extension of the periods of detention. No provision in the law mentions their right to know if these conditions have been met. Judicial police can falsify arrest dates to create the appearance of compliance with law. The courts have never accepted challenges to arrest dates by the detainees or their lawyers. This practice occurs mainly in state security related cases and in cases related to political unrest.⁽¹⁰⁾

In Moroccan law there is no right to habeas corpus or similar procedures which can guarantee the right of an arrested or detained person to take proceedings before a court to decide without undue delay on the lawfulness of his detention and order release if the detention is not lawful. There is an article (227) of the penal code which states, "Any public servant or public authority agent or public authority invested with judicial or administrative power, who refuses or neglects a demand addressed to him which aims at confirming an arbitrary, unlawful detention in detention centres or any other place and who does not give any proof that he had notified the hierarchical authority of his civil rights." This important article does not, however, contain any procedure allowing the detainee a right to be brought before a court which may decide on the lawfulness of his detention. Rather, it is addressed to public agents asking them to notify demands about arbitrary detention to their hierarchy, without any mention to the destination of this notification. The procedure set by article 660 of the criminal procedure, "The public prosecutor and the investigating judge visit the prisoners once every three months, at least, and verify especially the lawfulness of detention and the good management of registers," does not constitute a sufficient guarantee for the detainees awaiting trial because it concerns the convicted prisoners.

b. The Detention Resulting from a Judicial Order

Among orders issued by the investigating judge are those related to arrest and detention. These orders can be given against persons suspected of committing offences punished by imprisonment (arts. 145, 146 and 147 of criminal procedure). These orders must be written and must mention the accusation and the articles which punish or incriminate the offence; they must mention with precision the identity of the accused person; and they must be dated and signed by the judges who issued them and carry his stamp (art. 136 of the criminal code).

The order to arrest is addressed to public authorities (police agents and officers and the public authorities) asking them to search for the accused person, to arrest him and to put him in the jail indicated in the written order. This order is issued against an accused person who is running away, escaping or residing outside Morocco. This order is issued after the consultation with the public prosecutor. Article 150 of the C.P. states that the public agent responsible for the implementation of the order of arrest cannot enter a citizen's house before 5 o'clock in the morning and after 9 o'clock in the night. When the accused is arrested, he should be conducted immediately to the jail where the supervisor gives the agent an attestation that he has received the person (art. 148 C.P.). The accused must be heard within 48 hours of his arrest. If this period is exceeded the supervision of the jail must automatically present the accused to the public prosecutor who asks the investigating judge to listen to him, or he must be released.

The other order which the investigating judge gives is the order to put the arrested person in jail. This order is notified to the accused after the interrogation. It should be mentioned in the statement (procès verbal) of interrogation. The accused is conducted to the jail where the supervisor gives an attestation to the agent that he received the accused person.

Article 151 of the C.P. states that the transgression of the conditions related to these judicial orders exposes an investigating judge, the public prosecutor, and eventually the clerk, to disciplinary measures if the transgression has led to the violation of individual liberty. Article 141 with article 149 signify that leaving the accused in jail beyond the cited periods without interrogation is considered an arbitrary arrest which exposes those responsible to punishment. In practice, the accused has no recourse against these orders. All he can do is to ask for bail to be granted (liberté provisoire). If his demand is rejected he can appeal before the "correctionnelle" chamber which we will analyse shortly.

c. The Pre-Trial Custody: Preventive Detention

Pre-trial custody "preventive detention" is the deprivation of liberty of an accused person by putting him/her in jail during the period lasting from the opening of the preliminary investigation until a final judgement which occurs before the end of the pre-trial custody. This measure often results from an order to arrest or an order to put in jail. In Morocco we can distinguish between the pre-trial custody ordered by the investigating judge and that ordered by the public prosecutor.

The pre-trial custody ordered by the investigating judge is a far-reaching measure contrary to the presumption of innocence and has often been justified by the necessity to prevent the accused person from running away or committing "another" crime or the destruction of evidence and/or in order to complete the investigation.

Moroccan law describes pre-trial custody "preventive detention" as "an exceptional measure" (art. 142 C.P.). Articles 153 and 154 C.P. put some conditions on ordering it. If the maximum punishment is under two years imprisonment, an accused established in Morocco can be detained more than a month after his first interrogation by the investigating judge except when he has previously been condemned to more than three months' imprisonment (art. 153 C.P.).

In the other cases, the detention will be two months, and this can be renewed up to a maximum of five times. So the global period can not exceed one year. The renewal must be a justified decision from the investigating judge after he takes notice of the public prosecutor's demands.

The pre-trial custody can be ended by force of law, by decision of the investigating judge, following demands from the public prosecutor, or from the accused or his defence if these demands have been accepted.

The pre-trial custody ends by law if a judicial order to dismiss the case is issued (art. 196 C.P.) or when it appears that the acts constitute only an infraction (art. 197 C.P.) or when its legal period ends.

The investigating judge can order the temporary release of the detainee after consulting with the public prosecutor. In this case, the accused commits himself to be present in all the proceedings when invited and to inform the investigating judge of his whereabouts. The temporary release can be conditioned upon bail.

The public prosecutor can demand the release of the detainee. The investigating judge has to answer within five days of receiving the demand. At any time the accused or his defence can ask the investigating judge for provisional release with the commitment to appear before the court and to inform the judge of his whereabouts. A bail can be proposed also. The judge must inform the public prosecutor immediately of this demand. He must also inform the civil rights claimant in order to allow him to present his remarks. He must give a written, justified answer within five days of sending the demand to the public prosecutor and within 48 hours of informing the civil rights claimant.

If the investigating judge does not answer or refuses the demand, the accused can submit his demand directly to the "correctionnelle " chamber of the appeal court which decides in 15 days in "correctionnelle" offences and within 30 days in criminal offences, taking into account the written demands of the public prosecutor. If these deadlines pass without answer, the detainee must be released unless there is an additional measure of investigation (art. 156 C.P.). The last provision in article 156 leads to confusion. Additional measures can always be invoked. It is also unclear, when the appeal chamber does not answer, who can order the release of the detainee.

If the "correctionnelle" chamber decides the release of the accused, the investigating judge can not issue a new order of detention except if the chamber withdraws its decision based on the public prosecutor's written demands. The law allows the public prosecutor to appeal against the orders of the investigating judge. According to a scholar these appeals suspend the release of the detainee until "correctionnelle" chamber decides in the appeal demand.⁽¹¹⁾ If the investigating judge decides to dismiss the case (non lieu) the detainee will be released even if the public prosecutor appeals, because the release here is allowed by the law (art. 196 C.P.). It is not an order of provisional release.⁽¹²⁾

When the accused is brought before the court, it is that court which decides in demands related to provisional release. But the law does not mention any delay for the court to decide.

Pre-trial custody ordered by the public prosecutor has been created by the amendments to the criminal procedure law which occurred in 1962 and 1974. Article 76 of the C.P. allowed the public prosecutor to put an accused in jail in cases of flagrant offences and when the offence is punished by jail and is not submitted to the investigating judge. After the amendment another possibility was added to put the accused in jail: when he or she does not have sufficient guarantees to appear before the court. The article leaves the public prosecutor unlimited freedom to evaluate these guarantees. So the public prosecutor can put an accused in jail, arguing that he has no guarantees to appear before the court, if there is no flagrant offence and even if the offence is not punished by jail and even if the person has guarantees.⁽¹³⁾

What makes the guarantees so weak as compared to the powers of the public prosecutor is the law of 1974 called "transitory procedure" (in relation to the judicial organisation and in relation to the criminal procedure). This law has abrogated investigations in offences except when there is a special context. In crimes the investigation becomes optional except in those punishable by the death penalty or by life imprisonment or committed by juveniles. So as a result of the 1962 and 1974 amendments the procedure reserved for flagrant offences became widely used as an open door to the pre-trial detention. In the majority of cases this detention became the rule rather than the exception.

Because of the almost systematic appeal of the public prosecutor against the temporary release demands, the defence refrains from asking for it and judges refuse to grant it not because the demands are not well-founded but in order to avoid the appeal of the public prosecutor which prevents the release of the detainee. So the defence prefers in minor offences that judges decide a non-executive punishment so that the detainee gets back his freedom, even if the public prosecutor appeals against the decision.⁽¹⁴⁾

It is worthy of mention that in the 1962 amendments the Arabic version of article 76 was formulated in a way that obliged the public prosecutor to put the accused in jail if he has not sufficient guarantees to appear before the court; whereas, in the French version, the public prosecutor was not obliged to do so. The verb "peut" in the French version replaced "doit" in the Arabic one. Because of the "Arabisation" of justice the public prosecutors systematically apply the Arabic version in a severe way -- (severe because they have freedom to evaluate the guarantees). After 30 years of an exercise which was very attentive to individual

freedoms, the text was amended again in 1991 so that the Arabic version became "the public prosecutor can issue an order to put the accused in jail; he can also present him free to the court if he submits to a bail which he (the public prosecutor) determines or a personal guarantor."⁽¹⁵⁾

This amendment occurred only after human rights movements in Morocco and abroad had spoken out loudly condemning the abuses and after the ravages of the pre-trial detention became unbearable for the system itself. Among the ravages was the situation in prisons, which worsened due to the systematic recourse to "preventive detention."

However even with the 1991 amendment the Moroccan Organisation of Human Rights affirms in a counter-report to the official report submitted to the UN Human Rights Committee in October 1994: "There has been no noticeable change in the exercise of preventive detention by the public prosecutor in the framework of article 76; this detention is not only ordered for flagrant offences but also when the accused has no "sufficient guarantees;" the release of the accused presenting a bail or a guarantor is not automatic. It depends on the public prosecutor's evaluation."⁽¹⁶⁾

When the accused is detained for a flagrant offence, the public prosecutor must present him to the court immediately or in a maximum of three days (art. 195 C.P.). The public prosecutor must, before putting a person in jail, tell him that he has the right to choose a lawyer immediately. This lawyer can be present in this first interrogation (art. 76 C.P.).

If the detention occurs as a result of a flagrant crime not punishable by the death penalty or by life imprisonment, the public prosecutor can interrogate after telling him that he has the right to choose a lawyer who can be present during the first interrogation and communicate freely with the accused. The lawyer can also take notice of the file of the case. When it appears that the case is ready for trial the public prosecutor issues an order to put the accused in jail and to present him to the criminal chamber within 15 days. If the case is not ready for trial, more investigation is ordered.

This summary procedure to present the accused persons to trial without investigation is not to their advantage. Decisions are taken on the grounds of police statements, which can lead to severe judgements. The speed with which the accused is presented to the court can also result in the adjournment of the trial because the case is not ready. The detainee remains in jail after several adjournments as we shall analyse in section II.

2. The monitoring of conditions of detention

The monitoring of garde à vue detention resides in the control of the lists submitted by judicial police officers to the public prosecutor daily about detainees under garde à vue custody. It resides also in the authorisation given by the public prosecution and in the notification to the detainee's family of his arrest and detention. Moroccan law does not give the detainee a right to a lawyer during this crucial period. This right begins only after his presentation to the public prosecutor. The monitoring control of the public prosecutor over the judicial police applies only to dates and lists of detention. It does not apply to methods of investigation and interrogation.⁽¹⁷⁾

In the absence of any sanction for not notifying the detainee's family, the monitoring of the judicial police remains that of their administrative chiefs and that of the public prosecutor. There is also a check by the "correctionnelle" chamber of the appeal court. When there is evidence that the judicial police officers have failed in this function, the president of public prosecution, or the president of the "correctionnelle" chamber, brings the case before this chamber, which can also automatically take over the case during the proceedings (art. 152 C.P.). When the case is brought before this chamber, it orders an investigation -- listens to the president of public prosecution and to the police officer charged with failure to do his duty. This officer has the right to see the file and to choose a lawyer. The "correctionnelle" chamber can address observations to the officer. It can also decide to suspend him from exercising this function temporarily or permanently regardless of any other disciplinary measures which can be taken by his superiors. If the chamber realises that the officer has violated the criminal law, it orders that the file be sent to the president of public prosecution to decide about it (arts. 47 and 48 C.P.).

But in this regard, the criminal procedure establishes a "judicial advantage" for the officers of the judicial police with other senior public servants (judges and officials). Article 270 of the C.P. states that if an offence is attributed to a police officer during his function, the first president of the appeal court, to which the case is submitted, decides whether to make an investigation. So he has an arbitrary power unjustified in the case of a criminal offence. If he orders an investigation, he chooses a judge from the district in which the police officer works. In practice the police officers benefit from the protection of their superiors and from the indulgence of the public prosecutor and the judicial authorities. When they are punished, this often occurs within the administrative process. So the punishment lacks any dissuasive or pedagogic impact. It is also very difficult for the detainee, his family, or his lawyer, to question the violation of the garde à vue conditions concerning its duration or its prolongation because of the uncooperative attitude of the judicial machinery. The treatment of the detainee during the garde à vue detention will be analysed in section II.B.

The control of preventive detention is effected by the "correctionnelle" chamber of the appeal court when it decides appeals concerning investigating a judge's order. The accused can appeal against the judicial orders related to preventive detention, refusal of provisional release or the refusal of an expert (art. 206 C.P.). The public prosecution can also appeal against the investigating judge's order. The law states that the "correctionnelle" chamber must decide in matters related to the preventive detention within 30 days of the appeal, which is a long period.

The "correctionnelle"chamber can annul the investigation results automatically or alter demands. The annulation can occur when the fundamental guarantees of the accused are violated. These guarantees relate to the notification of charges, the right to remain silent, the right to choose a lawyer and to be helped by a lawyer during the first investigation, the right to be examined by a specialist doctor if requested (art. 127 C.P.), the right to communicate freely with a lawyer after the first interrogation (art. 129 C.P.), the right to call on a lawyer before interrogation and to let him review the file before the interrogation (art. 132 C.P.).

The annulation strikes out all the proceedings if the violation relates to fundamental guarantees. It can concern some proceedings (art. 192 C.P.). The documents related to annulled procedures must be removed from the file. They will be put in the clerk's office of the appeal court and cannot be used. Disciplinary measures will be taken against judges or lawyers using them (art. 193 C.P.). The "correctionnelle" chamber can order the release of the detainee. It is worthy of mention that this chamber replaced in 1974 the accusation chamber, the president of which has powers to supervise the implementation of preventive detention. In principle procedure states that investigating judge must establish a list of cases related to preventive detention. The head of public prosecutor must send his list to the president of the accusation chamber (now the correctionnelle chamber) within 10 days of receiving it (art. 242 C.P.). The president of the accusation chamber can ask the investigating judge for all necessary clarification. He can visit any jail in his district and see any detainee. He can also make the necessary recommendations to the investigating judge when he realises that the detention is not justified (art. 243 C.P.).

In practice the "correctionnelle" chamber, which also functions as an appeal court in offences decided in the primary courts, is so busy that it can not properly fulfil the functions related to preventive detention. The situation of its president is the same. Very often it confirms the decisions or demands of the judge of investigation and the public prosecution.⁽¹⁸⁾

Concerning the preventive detention ordered by the public prosecutor according to article 76 of the C.P. -- which we have seen can be abused under the pretext that the accused has no sufficient guarantees to appear before the court -- there is no control on its legality because it is left to the free evaluation of the public prosecutor. The court is the only recourse for the accused at his presentation for trial.

Exceeding the period of preventive detention is considered an arbitrary detention punishable by the withdrawal of civil rights. This sanction can not occur before the trial of the judges responsible for that offence. This is very difficult in practice. Once again the criminal procedure grants a judicial advantage to the judges (arts. 267 to 269 C.P.). So, if the offence is committed by the president of the appeal court or the public prosecutor, it is the criminal chamber in the Supreme Court which may, following the demands of its public prosecutor, order an investigation. If this happens, the investigating judge in the Supreme Court issues an order to dismiss the case or to send it before the Supreme Court. In the latter situation all the chambers of the Supreme Court gather to decide the case (art. 167 C.P.).

If the offence is committed by a judge from the appeal court -- namely the investigating judge and the deputy-public prosecutor (with preventive detention powers) -- the criminal room in the Supreme Court may, here again, order an investigation. In this case it sends the file before an appeal court other than that of the accused judge. Here an investigation procedure is carried out in the same conditions under which an investigating judge works. After this the file is submitted to the public prosecutor for his opinion and demands. The case is then sent to the "correctionnelle" or criminal chamber according to the accusation (art. 286 C.P.).

If the offence is committed by a judge of a primary court or an authority officer (pacha or supercaïd), the public prosecutor of the appeal court submits the case to the first president of this court, who may decide on an investigation. If that happens, an investigating judge is designated and the procedure cited above is followed.

This great discretion of the judicial authorities to either open an investigation or to send the case before the courts leaves considerable room for consultations, mainly with the Ministry of Justice. Several considerations will be taken into account in handling the case. In practice we do not know about a case where this procedure has been applied. Disciplinary measures are more likely to apply.

3. Serious Violation of the Principle of lawfulness of detention

Common abuses occur in garde à vue custody and in preventive detention. There are abuses related to non-respect of the garde à vue terms and procedures of arrest (penetration into houses outside legal times, police not producing arrest warrants, arrest warrants without formal required conditions, officers who fail to identify themselves, considerable use of the flagrant offence procedure. There is also lack of adequate control over preventive detention, etc.). Besides these abuses Morocco has known the dangerous phenomenon of disappearance during the sixties, the seventies and the eighties. Two known detention centres exist outside of any legal organisation or judicial control. Finally, the special situation of mentally ill people accused or judged is worthy of mention.

a. The Disappearance Phenomenon

The Moroccan Organisation of Human Rights first published a list of disappearances on 26 July 1989. In May and November 1993 it published other lists. Finally, in July 1994 it published a list of about 90 persons whose fate remains unknown. Hundreds of disappeared persons were released in 1991.

The practice of disappearance began in the sixties and was against the left wing opposition. Mehdi Ben Barka is the best known, because he was the leader of U.N.F.P. (Union National des Forces Populaires, now known as the USFP (Union Socialiste des Forces Populaire)), the most important opposition party. He disappeared in Paris on 29 October 1965. The Moroccan Minister of the Interior, General Oufkir, and other high ranking officials were involved in the case. Tens of others disappeared in the sixties. In the seventies a sad case occurred. Sixty-one military prisoners were tried in 1971 and 1972 after two putsch attempts and were transferred in August 1973 to an unknown destination. Some of them, very young at the time, have served their sentences already. They remain detained in a desert region in Morocco in deadly conditions at Tazmamart (which became sadly famous in the 90s). Three brothers were detained without trial (the Bourikat brothers -- Ali, Medhat and Bayazid) for reasons which have never been revealed. All these detainees remained there for 18 years in complete isolation from the world and in individual, narrow cells which were opened only to bury the dead among them. Thirty died before this situation was revealed. Thanks to the work of Human Rights Organisations and to discrete diplomacy, the survivors were released in September 1991. No investigation has been done into this case.

In June 1991 about 230 "disappeared persons," in the framework of the Sahara conflict, were released. They had been detained without trial since the eighties (1983 and 1985).

Today this file is not completely closed. The destiny of about 100 disappeared persons remains unknown. In October 1994, during the discussion of the Moroccan report, the Human Rights Committee (within the framework of the CCPR) stressed the necessity of investigating the disappearance cases, giving compensation to the victims and their families and finding a global solution to their situation.

b. Detention Centres Outside Legality

There are two detention centres, one in Casablanca (ONK), the other near Rabat (Ain Atik) where persons are detained (often homeless and vagrant persons).

They are not prisons or hospitals, nor are they social institutions. The detainees lead a very miserable life.

Persons have been arbitrarily detained in these centres by some officials in the context of ordinary conflicts as was the case of the Kachora family.⁽¹⁹⁾

Several times the Moroccan Organisation of Human Rights asked for the closing of these centres. It has mentioned them in its observations on the official report submitted to the Committee against Torture.⁽²⁰⁾

c. The Special Condition of the Mentally Ill in Criminal Procedures

When a mentally ill person (mental patient) is presented for criminal charges, the investigating judge orders a preventive detention against him even if he accepts examination. If the prison's doctor confirms the mental illness, the patient can be transferred to a psychiatric hospital for treatment under the custody of police even in the hospital.

Even if the situation of the patient improves or "stabilizes," the investigating judge does not order his release. The patient remains in the hospital, often in miserable conditions. Worse still he can be brought back to prison to continue the preventive detention under pretext that he needs more care, even if there is no proof about his responsibility for the offence, and even if medical examination affirms his mental illness and his irresponsibility during the incriminating acts.

When the court accepts the results of the doctor, it declares the patient partially or completely irresponsible. In the latter case the court decides that he must be placed in a psychiatric institution. Leaving the institution can become problematic because it depends on the public prosecutor's discretion. Despite the opinion of the doctor that the patient must be released in order to improve his mental health within his social surroundings, he can not release him (the patient) without the prior agreement of the public prosecutor. The law allows the doctor to free the patient if, ten days after notifying the public prosecutor of this intention, he has not received an answer.⁽²¹⁾ In practice, however, the Court does not release the patient before receiving the written agreement of the public prosecutor. This agreement is difficult to obtain. The law allows the public prosecutor to object to the release of the patient, which he very often does. In this situation the case is brought before a commission at the Ministry of Justice and the Ministry of Interior are also present. The commission is held every 6 months. The commission can agree with the doctor's opinion and the patient can be released. It can also confirm the objection of the public prosecutor and allow the patient to remain in hospital. In practice this second occurs more often. In this situation the procedure starts again: after a period, usually six months, the doctor notifies the public prosecutor of his intention to free the patient. Here again, the public prosecutor can agree or object and the procedure continues.

So, non-objective considerations can take over. The practice runs against the spirit of the law, it runs also against the court decision which decides that the patient be placed in the hospital for care. Logically, he must be released when no more care is necessary for his mental health and when his detention becomes harmful for him. Moreover, the complex administrative procedure only contributes to the ordeal of the patient and his family.

B. The Rights Related to the Human Treatment of the Detainee

These rights are established at the universal level by the Covenant on Civil and Political Rights (1966), the Convention Against Torture (1984), the United Nations Body or Principles for the Protection of All Persons under any form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988), the United Nations Declaration on the Protection of All Persons against Enforced Disappearance, (General Assembly resolution 47/133 of 18 December 1992), the Standard Minimum Rules for the Treatment of Prisoners adopted by the UN in 1955 and reaffirmed and developed since then. In particular, these rights include the right to be protected from torture and other cruel, inhuman or degrading treatment or punishment, the right to medical care, the right to be protected from disappearance or solitary confinement without trial, the right to notify his family, the right to a lawyer, the right to the presumption of innocence, the right to humane conditions in detention and the right to a remedy for the arbitrary detention and the legal prosecution of those responsible.

In the light of Moroccan law and practice, we will focus on the right to be protected from torture, the right to humane treatment during detention including rights related to family and lawyer communication, the right to be presumed innocent and the rights to a remedy for arbitrary detention and the prosecution of those responsible.

1. The right to be protected from torture

In June 1993 Morocco ratified the UN Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 231 of the penal code makes the punishment more severe for violence committed on persons by judges, public servants, or authorized agents during the exercise of their functions.

According to article 127 of the criminal code, the investigating judge must, if he is asked to do so, or if he himself notices traces that justify it, submit the detainee presented to him to an examination by an expert doctor (paragraph 5). In practice this obligation is often ignored.

The Moroccan Organisation of Human Rights affirmed in its observations on the official report to the Committee against Torture in 1994 that it has no knowledge of any legal prosecution of judicial police officers because of bad treatment during the garde à vue custody. The organisation affirms that the monitoring of the "correctionnelle" chamber is totally absent. The investigating judge does not order an examination of the detainee. In rare cases if that happens, no investigation follows. The checks on the judicial police, the interior officials, the gendarms or the prison guards, the four major torturers, are confidential. The disciplinary measures accordingly lose their pedagogic and deterrent impact. The demand for an examination by the detainee or his lawyer is often neglected by the investigating judge and by the court.

The Moroccan Organisation of Human Rights noted several cases of torture. In 1993 it published a file about deaths occurring in garde à vue custody in detention centres belonging to the police, the gendarmerie and the local authority agents (the Ministry of Interior). In almost all these cases the authorities concerned pretended that death occurred by suicide. The cases were closed by the public prosecutor.

The seriousness of torture is not limited to its physical or psychological effects. It also has far-reaching impacts in the proceedings. The police statements (procès verbaux) constitute the most important document in the "correctionnelle" cases. Article 291 of the criminal procedure states that the statement produced by judicial police officers and gendarms in fractions and "correctionnelle" offences are trusted unless the contrary is proven. Article 292 (C.P.) adds that the statement is proof only if it was valid in form and contains what its writer noticed or received himself in matters related to his competence. The fact of not accepting the accused or his lawyer's claims about torture makes the statement valid for the court.

2. The Conditions of Pre-Trial Detention

The conditions in which garde à vue detention takes place are awful. Places reserved for garde à vue custody are often unclean and badly ventilated. The detainees receive only the food and clothes brought by their families. In preventive detention, the detainees are kept in prisons, in the same conditions as the other detainees. Because of their limited capacity, the lack of healthy conditions,the bad food and the closed doors, most of the time Moroccan prison conditions in themselves constitute cruel, inhuman and degrading punishment and treatment. Detainees in preventive detention are not isolated from other prisoners. It is not only the human rights organisations that have reported on those bad conditions; the too moderate Consultative Council for Human Rights, established by the King in 1990, also acknowledged this situation in its reports and public discourse.

3. Protection Against Disappearance

Despite the incrimination of the arbitrary acts violating individual freedom by article 225 of the penal code -- which applies to the exercise of disappearance, this practice occurred during three decades after the independence of Morocco (1965). If the nineties saw the solution of the majority of these cases, this sad file is not completely closed, as we have already discussed.

4. The Right to Communicate with the Family and with a Lawyer

Article 69 of the criminal procedure states that the judicial officer must inform the detainee's family immediately when he takes the decision to put him in the garde à vue custody. This obligation is generally ignored by the police.⁽²²⁾ In Morocco the detainee in garde à vue custody has no right to a lawyer despite the gravity of this period and its crucial effects. The detainee's right to a lawyer begins only with his interrogation before the investigating judge or before the public prosecutor. The presence of the lawyer during this interrogation is completely formal. He can not put questions or have his remarks written in the statement (procès verbal) of the interrogation.

The detainee in preventive detention has the right to a lawyer and to communicate freely with the lawyer. He can also communicate with the family, but the investigating judge can order the detainee be forbidden to communicate with others during 10 days which he can renew for another 10 days. This order does not apply to the lawyer but it applies to the family which seems excessively long.

5. The Presumption of Innocence

The preamble of the criminal procedure states, "[A] criminal procedure which makes the innocence of the accused the rule, puts impassable limits to arrest and detention and guarantees freedom of defence, in brief, which protects citizens from wrongs or abuses in the name of the society; a criminal procedure of this kind is the only one which is worthy of a free country."

Despite this beautiful introduction legal provisions and practice show that the presumption of guilt is the rule and the presumption of innocence the exception. According to the presumption of innocence, the burden of proof lies on the public prosecution. The accused does not have to prove his innocence, which is presumed. He can refute the accusations and bring evidence or ask for experts etc., but he is not obliged to demonstrate his innocence.

In Moroccan law and practice the presumption of innocence has been ignored in several aspects. In flagrant or supposed flagrant offences, the public prosecutor orders the detention of the accused without any proof of his guilt. Following the 1962 and 1974 amendments the field of preventive detention has been broadened. This practice is not usually justified by the dangerous character of the accused but by the presumption that he will run off or destroy the evidence. This indicates that for the investigating judge and the public prosecutor the accused is presumed guilty.

Even when the innocence is clearly demonstrated, the judge refrains from disavowing the public prosecutor or the investigating judge's orders. So they decide to condemn the detainee to a period of imprisonment equal to that spent in preventive detention in order that he can be immediately released.⁽²³⁾

In the last 4 or 5 years a practice contrary to the presumption of innocence has appeared: it consists of judicial police handing to the tabloid press the photos of some arrested "criminals" before their trial. They also give them photos of victims atrociously killed or mutilated. All those photos are published. This constitutes a new phenomenon in the press arena in Morocco.

By a "curious" coincidence this practice appeared immediately after the discourse of human rights became familiar in Moroccan society. Adverse spheres who want to maintain human rights abuses are perhaps trying to persuade people that respect for human rights encourages crime and that a strong authoritarian state is needed for the security of persons.⁽²⁴⁾

6. The Right to a Remedy for Arbitrary Arrest and to Prosecution of Those Responsible

The law does not provide a remedy to the detainee in preventive detention if it comes to light that he was innocent. Despite the disposition of articles 79 and 80 of the Moroccan law of obligations and contracts (civil law) about indemnification for the errors of civil servants, the jurisprudence does not confirm this in relation to the responsibility of judicial authorities.

Article 141 (C.P.) punishes the civil servant or the judge who maintains a detainee in jail more than the legal periods. But this article does not account for the detention itself when it is carried out within formal conditions regardless of the legitimacy of detention. In the absence of a condemnation of those responsible for the arbitrary detention orthe torture, demand for indemnification is almost impossible in practice as we have seen because of the judicial advantage from one side and because of political considerations from the other side.

Concerning disappearances, the persons released in 1991 continue to ask for indemnification. The families of the dead also ask for indemnification. In a completely discretionary way, the state decided, outside of any judicial procedure, to give a monthly pension of 5,000 dirhams (about $550 US) to the survivors of Tazmamart. This money is given from the social services budget of the armed forces as if the survivors were a kind of retired persons! The disappearance and torture victims do not benefit from any social or health services.

III. The Rights of the Accused During the Trial

These rights relate on the one hand to the characteristics of the tribunal, which must be independent impartial and established by law, and on the other hand to the accused's rights to a trial which allows him the exercise of rights related to defence.

A. The Rights to an Independent and Impartial Tribunal

According to Magistracy Law of 11 November 1974, magistrates are recruited after an examination open to bachelors of law. If they succeed they will be appointed as judicial assistants by decree of the justice minister. In this capacity they spend two years in training (5 months in the national institute for judicial studies, 15 months in the courts where they assist judges, and 4 months in prison institutions, public and private enterprises and prefectures). After this formation they pass another examination. If they succeed they will be appointed as judges by a royal decree (Dahir) after a formal proposition of the High Council of Magistracy.

After this clarification we will now analyse the actual status of the independence of judiciary and the principle of the impartial tribunal.

1. The Independence of the Judiciary

A number of scholars, lawyers and human rights advocates believe that the 1974 amendment has especially reduced the independence of the judiciary as well as defence rights.

The law of 11 November 1974 on the statute of magistracy combined with the law of 15 July 1974 on judicial organisation and the law of 28 September 1974 called "transitory procedures," have consecrated the dependency of the judiciary in Morocco. This is clear when we analyse the conditions of the dismissal of judges, their detachment, their promotion and their disciplinary regime.

It is worth noting that article 14 of the magistracy statute forbids judges from constituting unions or from joining unions.

In violation of article 82 of the Constitution which states that judges cannot be dismissed except by law, article 62 of the magistracy law allows the Minister of Justice to dismiss immediately a judge to whom a grave error is attributed or who has been prosecuted. The article does not give any criteria for the grave error. The dismissal occurs before the decision of the Council of Magistracy which confirms it in a subsequent meeting.

The justice minister can also appoint any judge by a decree to fill a vacant post (judge, prosecutor, investigating judge) in every region in Morocco, at any time, for a period which can not exceed 3 months every year, but which can be renewed with the agreement of the judge (article 57 of the magistracy law). This discretionary power is not very comfortable for the judges. Moreover the period can last more than 3 months without the agreement of the judge. In practice it is very difficult for a judge to refuse the renewal or the continuation of the appointment. The law relating to judicial organisation (15 July 1974) gives the presidents of courts -- who are judges appointed to the post by the executive authorities -- the authority to make observations about the performance of judges and to give marks which influence their promotion and career. This situation can establish a dependency towards these presidents.

The public prosecution is totally dependent on the justice ministry. A hierarchical relationship exists between the public prosecutors and their superiors. The minister of justice is the chief of this institution in spite of this belonging to the executive branch.

The High Council of Magistracy which has competence in promotion and disciplinary matters has only consultative status. It is the Ministry of Justice which actually influences the judges' career. Moreover, the council is dominated by the executive powers. Its chairman is the King. The justice minister is his deputy. It is also composed of the first president of the Supreme Court, the public prosecutor of this court and the president of the civil chamber of the same court. All these persons are appointed by the Royal decrees. The elected members are only four: two elected judges represent the appeal courts and two others represent the primary courts. The secretariat of the council is an appointed judge and remains under the justice minister's authority.

In practice this council is not very active. It does not hold the regular sessions mentioned in the law. In 1994 the Moroccan Organisation of Human Rights raised the question of 200 judges appointed without regard to the procedure which consists in their nomination by the Magistracy Council. This was a flagrant violation of the Constitution and of the law of 1974.

Moreover the council does not participate in the proposition or the study of law projects related to justice and magistrates. In addition, the judiciary is not independent towards the parties in the proceedings. Here the shortcomings come from the material (financial) situation of judges and from the widespread corruption in this milieu. The lawyers, in their association and in parliament, have condemned these practices. Despite the law establishing a check on judges' wealth, these checks are not implemented. Besides being in the justice ministry's hand, this control aggravates the judge's dependency on the ministry.

2. The Impartial Tribunal

Article 289 (C.P.) states that the judge must establish his decision only on evidence exposed during the proceeding and which has been discussed orally and publicly before the court. The law also allows the parties in a conflict to recuse the judges if their wives or parents have any interest in the case or if they have given an opinion in the proceedings before, or have decided in the case in a former stage or if they have a well known enmity with one of the parties or the case (art. 175 C.P.). The judge who can be recused must declare that to the court which decides if he has to withdraw from the case (art. 178 C.P.). The recusation shall be evoked before discussion of the case. The president of the appeal court decides on demands for recusation in his district. His judicial orders, except the recusation, do not need justification nor can they be appealed. As a result the judge must withdraw from the case (art. 282 C.P.). If the president refuses the demand he must justify his decision which can be attacked by "cassation" before the Supreme Court. But this does not prevent the constitution of the trial (art. 284 C.P.).

Article 25 of the law of judicial organisation states that a judge who is a parent or relative of a lawyer or a party in a case must not judge in that case otherwise the judgement will be null and void.

In practice, however, the impartiality of the court is closely related to its independence. In political trials the dependency of the judiciary is a serious obstacle to its impartiality. Political opponents have paid a high price in political trials. Hundreds of political prisoners have been victims of unfair trials. In normal cases the practice of corruption is very difficult to reconcile with impartiality.

B. The Accused's Rights to Adequate Defence and Guarantees

Among the principal guarantees are the publicity of the trial, the presence of the accused and his defence, the facilities to prepare the defence, the precise determination of the offences, the right to discuss the witnesses and the equality of arms between the parties to the proceedings and between the prosecution and the defence, the right to an interpreter when necessary, the right not to be tried again for the same offences, and the right to a trial without undue delay.

For Morocco, we have already analysed the 1962 and 1974 amendments which strengthened the prosecution powers in matters of investigation, arrest and detention (arts. 76 C.P. and article 2 of the transitory procedures in particular). In 1974, amendments reduced the accused's rights because they eliminated the accusation chamber and made investigation optional in offences other than those punishable by the death penalty or life imprisonment. The accusation chamber was responsible for monitoring the investigating judge's proceedings and orders. It has authority to dismiss the case if it considers that the acts do not constitute offences. This chamber was a degree of the judicial order from which the accused has been deprived. It was a chamber which could correct the procedure. Moreover, the accused has the right to bring its decision before the Supreme Court for "cassation."

The abandoning of obligatory investigation in crimes others than those punishable by the death penalty or life imprisonment is serious for the majority of accused persons. In offences that involve a sentence of up to 30 years it becomes possible to judge people after the preliminary investigation by the judicial police and the public prosecutor. This deprives the accused of explaining his case before the investigating judge who has more time and facilities to listen to witnesses, order experts, verify the evidence etc., before sending the case to court. The deprivation of persons accused with offences that can be punished by heavy sentences from investigation discriminates against them, because 20 or 30 years' imprisonment is similar to life imprisonment in the infernal prison conditions. The criminal chamber which judges such offences has no time to deepen the investigation because of the number of cases it judges daily. So the accused can be deprived of crucial guarantees.

The "transitory procedure" law has eliminated the system of popular assessors for a more professional judiciary in criminal cases.

The 1974 amendment established summary justice at the expense of the accused's rights and individual freedoms. The growing number of criminal cases must be handled by a fair and adequate criminal policy closely related to the social, economic and educative policies. This growth is normal in our society with demographic expansion. This means also that the justice sector needs more investment in training judges, building tribunals, etc. Criminal justice objectives can not be reached by ignoring the fundamental guarantees of the fair trial.

1. The Right to Public Hearing

The public hearing is related to the possibility of the public and all interested people and observers to attend the trial. It also comprises the possibility of the press and media representatives to be present and to report on the trial in a way which does not violate the legitimate rights of the parties in the proceedings. Publicity has a pedagogic impact, but in particular it is a guarantee to the parties because the public opinion watches and witnesses the proceedings. Publicity also allows the court to affirm its independence and impartiality.

According to article 301(C.P.) the proceedings and the debate must be public.Otherwise this nullifies the results of such proceedings. But this nullity is not recognized unless the public prosecutor or the accused or the civil rights claimant asks to record the non publicity of the hearing.

Article 346 (C.P.) states that all judgements or decisions have to be made in a public hearing unless a special provision states otherwise.

Morocco law permits exceptions to the public hearing. Article 302 (C.P.) permits the president of the hearings to exclude juveniles from some hearing if he considers their presence not appropriate. Article 303 allows the judges to hold confidential hearings if they consider that publicity threatens public order and morals. So, in 1993, in a famous trial known as the "Commissaire Tabit Affair" the hearings were closed to the public. Access was only allowed to the accused, some victims and the lawyers. The case was about a high ranking officer who abused his post to force more than a thousand women and girls to have sexual intercourse. He was careful to film the scenes on video tapes which constituted the main evidence in the case.

While the exception can be based on moral grounds in sexual offences for example, it is more difficult to base them on public order. The president of the hearing has all power to maintain order in the courtroom. Outside, it is the duty of the police to keep order, without abusing it such that the public is prevented from attending the hearings. The president can authorize the police to prevent the public from attending if the courtroom is so crowded that the proceeding can not be continued in adequate conditions.

Article 23 of the "Transitory provisions" states that debate in juvenile cases must be held in camera.

Public hearings are the usual practice in normal cases. This is not the situation in political trials where the principle is very constricted. The attendance comprises the defence and some members of the accused's family. The public and the press are prevented from the attendance. The court rooms are usually besieged by police. Another means to limit public hearing is to allow police in civilian clothes, men and women, to fill the courtroom before the beginning of the hearing so that the public can not find any more places. This happened in 1992 in a famous political trial where Noubir Amaoui, a trade unionist and political leader, was accused of defamation against the government. Apart from the first hearing, the other hearings were very far from being public. Police in civilian clothes filled the courtroom, and citizens, lawyers and journalists were harassed by the police forces. Six Algerian lawyers from the Algerian League of Human rights were prevented from attending the trial.⁽²⁵⁾

2. The Right of the Press to Report on the Hearings

The press code forbids the publication of the accusation documents before they are read in a public hearing. It also forbids the publishing of the secrets of courts debate: the information on the defamation cases and defence speech related to family disputes (article 54 and 55 of the law of 15 November 1958). But the law does not forbid the publication of judgements or the discussion and comment on them, except in cases related to defamation and personal statute (family disputes). Article 57 permits publication in good faith of discussion before the courts except in the cited cases.

Despite the law, opposition newspapers were prosecuted in 1992 on the grounds of article 55 which forbids publication of proceedings and discussions related to defamation. This happened during trial of the syndicalist and political leader Noubir Amaoui, accused of defamation against the government; lawyers showed in discussions before the court and in the newspaper⁽²⁶⁾ that the case raised problems of public concern. Amaoui's declaration to the Spanish newspaper El Pais, the basis of his prosecution, was critical of corruption and abuse of authority. The press coverage of the proceedings was a kind of publicity of the hearing particularly because the public was prevented from attending the proceedings. Finally the prosecution of newspapers was suspended. Noubir Amaoui was sentenced to two years imprisonment. He was immediately arrested and detained inspite of the appeal of his lawyers and despite the offense being related to opinion. Noubir Amaoui was adopted by Amnesty International as a prisoner of conscience.

3. The Right to the Presence of the Accused and the Parties

This principle relates to the presence of the court members and the parties to the proceedings. It is necessary for the discussion of evidence and in order to permit the parties to defend their positions. This allows the court to build a better understanding of the case and helps it to decide on objective grounds.

The presence of the parties is guaranteed by a convocation made with due formality as described in articles 367 to 370 of the criminal procedure. The convocation must be sent to the accused, whoever is responsible for civil rights and the claimant of these rights. The convocation must indicate the day, hour and the place of the hearing. It must also indicate the offence, the date of its commitment and the articles applied. These conditions are required under the nullity sanction. According to article 368 this convocation is considered to be notified formally to its addressee if it was handed personally to him or left at his home or with his lawyer. Article 369 states that a minimum period of 15 days must be given between the date of the convocation and the day of the hearing. Violation of these conditions leads to the annulation of the convocation and the judgement can be produced in absentia. For those settled outside in Morocco, the law gives greater delays.

If the person convocated in due form does not appear before the court he will be tried in absentia. The judgement must be notified to him with a statement that he has the right to object to the judgement within 10 days. If the modification has not reached the addressee as it appears from the execution documents, the period of objection lasts until the end of the sentence. It is the judges that issue on the judgement who decide on the objection. The accepted objection annuls the judgement that was made in absentia and a new convocation is addressed to the parties.

The trial in absentia applies when the accused convocated in due form does not appear or when he has run away. In this case the president of the court gives him 10 days to appear. In this judicial order it is stated that he will be judged despite his absence and that he can not enjoy his civil rights. His property is put under official custody and he can not take any legal action during this period. The judicial order indicates the accused's identity, his physical profile, the offence he is charged with, and the order to arrest him. This order will be attached on the last known home door of the address of the accused or on the door of the criminal court. This order is also diffused by national radio 3 times within 8 days. After 10 days the court tries the accused in absentia without the presence of any lawyer. If the accused has an excuse, his lawyer, parents or friends can communicate this excuse to the tribunal. If the excuse is accepted the court postpones the trial and orders the lifting of custody on his property. If the excuse is not accepted the trial takes place with the reading of the prosecution order, the judicial orderconcerning the absentia procedure and the statement related to it. Afterwards the court listens to the civil rights claimant and to the public prosecutor's demands before deciding. After the judgement the accused's property remains in custody. Help can be given to his wife and close relatives if they are in need. A summary of the judgement is published in the official journal.

If the accused gives himself up (surrenders) or if he is arrested before the sentence was dismissed, the absentia judgement becomes null and the normal procedure is followed.

4. The Right to Counsel

Except during the garde à vue, the accused can have the help of a lawyer. Legal assistance is obligatory in criminal cases and for juveniles. It is also obligatory if the accused is dumb, blind or has an infirmity which prevents him from defending himself. The needy accused in criminal offences is granted free legal assistance if he can not afford legal counsel. In Morocco, lawyers appointed in legal assistance framework are not paid. According to lawyers, this does not assure an effective defence to the accused. Lawyers are not enthusiastic in these cases.

In flagrant offences cases (art. 76 C.P.) the law states that the judge must inform the detainee that he has the right to a delay to prepare his defence. The law adds that if the detainee used this right the court must grant him a minimum 3 days' delay. The judgement must include this information and the detainee's answer, otherwise it will be considered null (art. 396 C.P.).

However, in practice because of the high number of cases -- and because they want to try the maximum of cases -- judges drive the accused to not using their right by a specific question formulated as follows: "Do you want to talk for yourself or do you want somebody else to speak for you?" Another usual formulation is: "Do you want to defend yourself or do you want to appoint someone to defend you?"

This question is different from that required by article 396 which needs another formulation, for example: "The law gives you the right to a delay to prepare your defence. Do you want a delay or do you give up this right?"

So, because of the ignorance of the true meaning of these questions as put by the judges, and because of the ignorance of the importance of a lawyer, or for other reasons (financial reasons for example) the detainees, driven by the question, answer that they can defend themselves,which for the court means that the trial can start immediately. After rapid questions and answers the court usually produces a judgement which has become familiar to trial observers: "The accused is presented in a detention situation. He withdraws from preparing his defence. He denies the charges. The public prosecution asks for condemnation . . . The court will decide at the end of his hearing (or next week)."

Very often the court condemns the accused on the grounds of police statements. The judgment is notified to the detainee in jail in the majority of cases.

5. The Right to Defence Facilities and to Discuss Witnesses

The law states that every accused person can have a copy of the statement which contains the charges, the witnesses' declarations and the expert reports (art. 458 C.P.) . The lawyer can communicate freely with the accused and may have access to all components of the file (art. 457 C.P.). The accused or his lawyer can ask to postpone the hearings. The law also states the transfer decision (of the case to the criminal court) must be notified to the accused otherwise the proceedings are nullified. The accused has the right to know the charges against him (arts. 314, 451 and 458 C.P.).

The accused has the right to be notified of the names of witnesses, their professions and their addresses 24 hours before the hearings if they were called on demand of public prosecution or the civil rights claimant. The accused can object to the witness who is not mentioned in the notification (art. 470 C.P.). As a rule the court listens to the accusation witnesses before the defence witnesses but the president can decide on the other order.

The accused has the right to comment on the witnesses' declarations. According to article 330 (C.P.) the president asks the accused after every declaration of a witness if he has something to say concerning this declaration. The president can also ask the prosecutor and the civil rights claimant if they have questions.

Every hearing starts by asking the accused about the charges, listening to witnesses and expert and submitting the evidence. The discussion is followed by the presentation of the claims of the civil party, the presentation of the prosecutor's demands and the expositions of the defence of the accused. The accused is the last one to speak, then the president declares that the discussions are closed (arts. 305 to 307 C.P.).

The judgement follows immediately or after an indicated delay (arts. 379, 399 and 420 C.P.). Before the discussion of the case the accused and his lawyer can submit formal objections related to competence of the tribunal, existence of a document resulting from a null proceeding, etc.

When the court refuses a formal objection, the accused and the defence can submit it again on appeal, cassation or against the judgement (art. 318 C.P.). Article 769 (C.P.) states that the violation of defence rights will lead to the nullity of the judgement.

6. The Right to an Interpreter

According to article 316 (C.P.) if the accused speaks a language or a dialect which is difficult to understand by the judges, the defendants or the witnesses -- and if the translation of a document is required -- the president must appoint an interpreter. Nullity is the sanction for violating this requirement.

If the accused was deaf or dumb, the discussions must be done adequately to allow him to participate in a meaningful way. The right to an interpreter applies especially to foreigners. In practice, when their consular or diplomatic representatives follow the proceedings, there is more chance of their rights being respected.

7. Second Trial for Same Offence

Article 3 of the penal procedure states that public action (prosecution) ends by the death of the accused, by prescription, by general amnesty, by the abolition of the penal law and by a final judgement.

So the final judgement in which all recourses have been exhausted puts an end to the case. Any prosecutor or action can not be made again. This rule is usually respected in Morocco. An exception occurred in 1993 when a doctor, prosecuted in relation to the famous case of "commissaire " Tabit, was condemned to two years imprisonment. After a week he was brought again before the court for the same acts which had been given another qualification (participation) and was sentenced to 15 years' imprisonment.⁽²⁷⁾ The Moroccan Organisation of Human Rights has reported on the case, asking that the authority of the first judgement be respected.

8. The Right to Trial Without Undue Delay

This right means the right to a trial which produces a final judgement and, if appropriate, a sentence without undue delay.⁽²⁸⁾ This right takes into consideration all delays related to means of recourse. This right does not depend on the accused's demands. European jurisprudence considers that the accepted justifications for long delays are those related to the complexity of the cases or the accused's behaviour. This jurisprudence considers from another point of view that some special conditions must be taken into account in order to hasten the proceedings, such as the detention of the accused, the cases related to labour conflict (when a person is licensed) and in cases related to children in custody.

In Morocco we can verify the trial delays before the primary courts, the appeal courts and the Supreme Court, especially when the accused is detained.

Before the primary courts which judge offences the detainee can be immediately brought before the court after his interrogation by the public prosecutor. The law gives the accused here a minimum 3 days' delay to prepare his defence. In practice what can be criticized is the summary and rapid trial. Because of the number of the cases brought before the primary courts in penal matters (about 40 files related to detained persons and about 150 files related to the offences where there is no detainee) the court handles these case very quickly, by postponing some of them.⁽²⁹⁾

In cases with detainees, the speed of the proceedings results in the lack of an adequate defence, as we have described. The problem here is not the undue delay of the trial but its summary character which violates the accused's rights.

On the other hand, there arises the situation when the court postpones a case not because it is a complex one or because of the behaviour of the accused, but because of the shortcomings of the judicial machinery.

A symposium on preventive detention held in 1987 focused on the problem of postponing cases because they are not ready for the hearings.⁽³⁰⁾ The symposium noted that 60% of the cases are postponed. The same case is postponed 3 or 5 times because it is not ready for judgement. The causes of this situation related to the non-execution of some proceedings (non-convocation of witnesses, of the defence, of the victims, the detainee from jail, etc.). The symposium revealed a crisis in the notification procedures. The responsibility for this crisis is shared by the public prosecution, the clerk's office, the judicial police and the shortcomings of an adequate control on the proceedings.

It is very difficult to determine the amount of time spent before the primary courts before a case is judged. This can last from one week to several months. What can also be criticized here is the non-determination by the law of a deadline to transmit the cases to the appeal courts. The writing of the judgements are often delayed even though the accused has only 10 days' delay to appeal against a judgement after its pronouncement. The accused needs the written judgement in order to establish the appeal. The transmission of the file to the appeal court can last months. In the Amaoui case, despite the protests of his lawyers, his file waited 10 months before it was sent before the appeal court.⁽³¹⁾

For the appeal court, the judges come with more than 15 files to a judge. They begin by isolating what they consider cases ready for the judgement (between 5 and 10 in each). The other cases considered not ready will be postponed. The detainees are the main victims as we analysed above. The symposium on preventive detention indicated that the "transitory procedures" law of 1974 is among the factors responsible for this situation, because it abolished a number of procedures which make the case ready for the trial. The symposium also indicated that abuse of the flagrance procedure was responsible for augmenting the number of the criminal cases before the courts. The abolition of the role of the investigating judge in the majority of cases and the abolition of the accusation chamber does not help in preparing the cases for trial. If we add to these the lack of resources in the justice sector (judge, personnel, clerks) we better understand this situation. We have to add here that even if the preventive detention period ends, the detainee remains in jail when the court considers that the case is not ready for trial.

The judgements of the appeal court are also not immediately written after the sentence. Here the accused has only 8 days to attack the judgement by "cassation" before the Supreme Court. Lawyers need a copy of the judgement to establish their "cassation" demands, so they beg the presidents of the courts to hasten the process of writing.

Cases brought before the Supreme Court last several years. The law does not establish deadlines for some important proceedings.The reporting judge before the Supreme Court has no deadline in which he has to submit his report to the public prosecution in this court. There is no deadline for the Supreme Court to indicate a date for the hearings. It is possible that this court decides the case only after the accused has served his sentence. We find this practice meaningless, indeed absurd. Demands of "cassation" must be treated before the end of the punishment so that the prisoner can benefit from the cassation if his demand is well founded.

IV. The Accused's Rights After the Trial

After the trial the tried person has rights to appeal judicial errors, to benefit from a lighter sentence or to challenge his exercise of defence rights. The accused's rights relate to different kinds of recourse against a first or final judgement.

The convicted person also has the right to compensation for judicial errors, the right to ask for pardon and the right to ask for conditional release.

A. The Rights Related to Recourse Against Judgement

In Moroccan law there are recourses allowing another trial of the facts and the legal aspects of the case. There is the appeal and the objection. Another recourse allows only the examination of the legal and procedural aspects of the case; this is the cassation. Finally, the revision of a judgement can be a recourse if factual errors or new findings reveal the crime was attributed to an innocent person.

1. The Objection Recourse

An accused, tried in absentia, can object to the judgement if it was produced by a primary court, an appeal court, the military court, the special court of justice or the High Court.

The law gives the convicted person 10 days to object to the judgement. This period is only 5 days for military court judgements. The objection demand must be written on the notification letter sent to the convicted person or by a declaration to the clerk's office of the court where the trial was held. If the notification has not been given personally to the accused or if the documents on execution do not indicate that he had been informed of the judgement, his objection lasts until the "prescription" of the sentence. It is the court which produced the absentia judgement that decides on the objection. The objection annuls the absentia sentence and the case is tried again. All parties must be convocated again (art. 374 C.P.).

2. The Appeal Recourse

Objection can be sought against an absentia trial before the same court. It aims at securing the presence of the accused, whereas appeal is a recourse against a judgement where the accused was present or considered to be so. It is submitted to a higher court in order to correct the errors of the first judgement. In Morocco, appeal recourse is possible only against judgements of the primary courts. Appeal is not possible against the preliminary judgements or judicial orders related to formal objections taken alone. It is possible against them when they are submitted with the appeal against the judgement.

It is a regrettable fact that other sentences produced by the criminal chamber, the Special Court of Justice, the Military Court and the High Court can not be appealed against. These sentences are the most serious especially when the 1974 Laws have abolished fundamental guarantees for the accused. Demand of appeal can be made in 10 days, beginning the day after the judgement or after its notification to the accused (arts. 385-406 and 420 - 448 C.P. and article 9 of the transitory procedures). Judgements on provisional release must be appealed the day after they are produced (art. 406 C.P.).

The public prosecutor has two months to appeal against a judgement. If one of the parties to a trial appeals the judgement in the normal time limit the law gives the other parties 5 more days to appeal. So if the public prosecution appeals within the 2 month delay, it must notify the accused who has 5 more days following the notification, to appeal. The Supreme Court has ("cassed") annulled a judgement in which the public prosecutor failed to notify the accused, on the grounds that it violated the defence rights by depriving the accused from his right to appeal within 5 more days (Supreme Court decision no. 363 of 6 March 1976).

As a result of the appeal the judgement can not be carried out because it is not final. Unfortunately, because of the 1962 amendments to the criminal procedure, the appeal can no longer stop the execution of the sentence if the judge decides so after the prosecutor's demand (arts. 384, 400 and 425 C.P.). So, if the court sentences a free accused person to imprisonment and the public prosecutor asks that he be detained immediately and put in jail, the judge can order the detention and the imprisonment of the accused despite his appeal. This occurred for example in the Amaoui case.

Appeal is examined by the "correctionnelle" chamber of the appeal court. It does look at the case in its factual and legal aspects tried by the primary court.

The court decides on the form, taking into account the capacity of the claimant, the formal quality of the judgement, the delays and the form of the appeal demand. If the appeal is refused in form the court does not examine objections.

When the appeal is accepted in form, the court can confirm the judgement of the primary court even if that judgement was based on an accepted legal reason (non competence, "non lieu" when the facts do not constitute an offence, prescription, existence of a former judgement for the same facts).

The appeal court can disagree with the judgement of the primary court if it declares its incompetence for example when the appeal court is the competent court. In this situation the appeal court decides the case. If the appeal court decides a case in which it is not competent, the appeal court annuls the judgement.

If the primary court was competent, the appeal court can confirm its judgement or annul it partly or completely. The powers of the appeal court to annul the decisions of the primary court are limited by the rights which the person asking for the appeal has gained from the primary court's decision.

If the sentence is appealed, the appeal court can only confirm the judgement or annul it (arts. 409 and 410 C.P.). The appeal of the public prosecutor can lead to a decision to the benefit of the accused or against him (art. 409 C.P). If the appeal court annuls the primary court decision for a reason -- (violation of the right to publicity, non convocation of the parties, non justification of the decision (art. 352 C.P.), absence of the public prosecution, participation of a judge who must not participate (art. 4 -- 7 and 25 of the law about judicial organisation)) -- the appeal court decides in the case.

3. The "Cassation" Recourse

The "cassation" recourse aims at controlling the legal qualification that the judge has given to the incriminating acts. It also controls the adequate application of law and procedures. "Cassation" is not a degree of judicial proceedings, it does not discuss the facts, but monitors the application of law.

The "cassation" recourse before the Supreme Court is open to the public prosecutor and to the parties that have not benefitted from the judgement (art. 575 C.P.). "Cassation" recourse is possible against all judgements, decisions and judicial orders that can not be appealed, except when the law states otherwise (art. 571 C.P.). So "cassation" can be requested against an appeal decision, a judgement of the criminal chamber, the special court of justice and the Military court and a judgement related to provisional release.

"Cassation" recourse must take place within 8 days of the judgement (art. 578 C.P.). This recourse must be taken within 5 days for the special court (art. 9 of the 1972 law) and 24 hours for the military court when the judgement is related to state security offences (art. 11 of the 1971 law). For other judgements the usual delay of 8 days remains. The "cassation" demand must be made by a declaration to the clerk's office of the court that produced the judgement. A deposit of 200 dirhams must be made within 20 days of the declaration (about $24 US).

The examination of the Supreme Court is limited to the object of the demand. This object is related to the quality of those who ask for the cassation. So the public prosecutor's demand is limited to public action (criminal action) whereas the accused's demand can relate to the public and civil action. The civil parties' demand is limited to civil action.

When the cassation demand is made the public prosecution sends it to the public prosecution of the Supreme Court after 20 days required forthe deposit and the declaration of "cassation".

The file is sent with a copy of the judgement, the declaration and the deposit receipt.

The president of the Supreme Court sends the file to the president of the criminal chamber of the Supreme Court who appoints a reporting judge. This judge notifies the declaration or the memorandum of cassation to the concerned parties for their answer, if any. If there is a reasonable cause to dismiss the cassation demand he decides a date for the hearings, after consultations and in argument with the president of the criminal chamber and the public prosecutor and informs the cassation claimant 5 days before this date. In the contrary situation, he writes a report and sends the file to the public prosecutor who must send it back to him after consultation with the public prosecution and the parties will be informed at least 5 days before the hearings. The hearing will be public unless the law states otherwise. After reading the report of the reporting judge, the lawyer of the parties can make oral remarks, then the public prosecutor makes his observations. Afterwards the case is then submitted for consultation and the decision is made in a public hearing.

Article 599 (C.P.) requires that Supreme Court decisions must be justified and must mention the legal provisions applied. The decision must also indicate the parties' names, professions, addresses and their lawyers. It must mention memorandum if any, the reasons invoked, and the defendant's conclusions. The decision must indicate the names of the judges who made the decision, the name of the reporting judge and the public prosecution. It must mention the reading of the report, the hearings of the lawyers and the public prosecutor. The decision must indicate that the judgement took place in a public hearing. This decision must be signed by the president, the reporting judge and the clerk.

The clerk gives a copy of the decision to the public prosecutor within 8 days in order to send it to the public prosecutor of the court that has produced the judgement.

The Supreme Court can refuse the cassation demand on formal grounds (the quality to recourse, when the judgement can not be legally liable to cassation, when the declaration is not founded on a legal basis, in the absence of a deposit or the absence of a required memorandum, or when the demand is not made before the court that produced the judgement).

When the Supreme Court accepts the demand in form it can refuse it in substance if it appears that the cassation reasons invoked are not serious and that the judgement is well founded and free from errors that the Supreme Court can automatically raise. The Supreme Court can also refuse the demand, even if there is an error in the application of the law, if the sentence is justified despite this error (art. 589 C.P.). This latter cause has been criticised by a scholar on the basis of the jurisprudence of the Supreme Court because, according to him, this allows the cassation judge to interfere in the competence of the judge in a way not conforming to the interests of the accused.⁽³²⁾

The main cause for the "cassation" is the lack of legal foundation or justification. By this means the judge of cassation can exert a kind of control over the facts that are outside his competence. The judgement will be considered non-justified or lacking legal foundation if it does not expose the facts or the legal elements of the offence and if it does not mention the defence arguments, or has failed to discuss them or has made inadequate or insufficient answer. It also will be considered so if it has established the conviction on the grounds that the accused has failed to prove his innocence, because the accused must be presumed innocent (according to the jurisprudence of the Supreme Court decision no. 473 of 22 March 1979). If the evidence is not produced and if there is a contradiction between the arguments and the conclusion, there is also a lack of legal foundation and justification.

Among the other major causes of cassation are the violation of the fundamental rules of procedure. Among them are those related to the defence rights.

The cassation can occur also because of the incompetence of the court or because of a violation of law such as the application of an article which must not be applied or the failure to explain a text or to qualify the facts.

The Supreme Court may declare the cassation of the judgement for the causes indicated by the claimant or raised automatically by the Supreme Court as being related to public order. Among these causes are: the violation of the rules related to the constitution of the court, the conviction by a sentence is not supported by the language of the law, non-justification of the decision, non-discussion of the mitigating conditions for each accused person, non-reading of the report in the appeal decision, non-investigation of a crime in which the law requires investigation, non-answer of the objections of the parties, justification of the decision by reasons contrary to the reality, and the conviction of a juvenile under 16 years old without special justification.⁽³³⁾

The cassation of the judgement can be partial or total. For example, a partial cassation can apply to the civil provision of the judgement and not to the penal provisions.

As a result of the cassation, the sentence will stand during the cassation delay and after the demand until the Supreme Court decides on the demand. (Art. 584 C.P. para. 1). This rule has very important exceptions: when the tried person convicted to imprisonment is in detention he remains in jail as a preventive measure (art. 584 C.P. para. 2).

In addition the cassation demand does not stop the imprisonment of the accused who is convicted to imprisonment if the court decides on his detention following the demands of the public prosecutor (arts. 411 and 432 C.P.).

The Special Court of Justice can order the detention of the accused convicted to jail following the public prosecutor's demands.

According to jurisprudence of the Supreme Court the Special Court of Justice must accept the demands of the public prosecutor to order the imprisonment of the convicted person (decision 296 of 20 February 1975).

After the cassation ("break") of a judgement the Supreme Court sends the case to another court of the same rank or to the same court with other judges.The Supreme Court can "break" a judgement without sending the case to another court if the "cassation" does not leave anything to judge -- (for example if the action has been dismissed or if the "broken" decision punished by jail is an offence not punishable by jail).

The law permits the public prosecutor the demand of cassation for the benefit of the law when there are judicial errors violating the fundamental rules without any party demanding the cassation of the judgement. The Minister of Justice can also demand a cassation for the benefit of law. This cassation can benefit the accused if it concerns the penal provision of the judgement which was against him. The "cassation" does not harm him if the "broken" judgement was beneficial to him.

4. The Recourse by Revision

The recourse by revision is also submitted to the Supreme Court. It aims at correcting factual errors that have led to the attribution of the offence to an innocent person.

The revision recourse can be directed towards the final judgements which convicted the accused. There is no time limit to ask for revision because its cause can appear at any time.

Article 613 (C.P.) indicates four causes for the revision: (1) if a conviction was made in an offence concerning the killing of somebody but new evidence proves that he is still living; (2) if there is a conviction and another judgement is produced convicting another person for the same offences and evidence comes to light that one of the accused is innocent; (3) if a witness is prosecuted after the judgement and was convicted for giving false evidence (because he is a lying witness which influenced the court to convicting the accused); (4) if something happens or is revealed, or evidence was submitted after the judgement, proving the innocence of the convicted.

In this last case the demand of revision is reserved to the Justice Minister, following demand by the convicted or his family, in order to exclude unfounded demands.

In the other cases, the demand can be made by the convicted or whoever represents him, by his family after his death or his declared absence to the Justice Minister.

The public prosecution can not ask for revision but it can submit the case to the Justice Minister who has this ability.

As a result of a revision demanded by the justice minister, the sentence will not be executed. It will end if it had started and the convicted will be released until the Supreme Court decides in the case.

The criminal chamber of the Supreme Court then examines the revision demand. If it accepts it, it studies its object and produces a decision if the file is complete. Otherwise the criminal chamber orders further investigation before taking a decision.

When the judgement is annulled, the court can decide in the case if it appears that no offence has been committed by the convicted, or if he is dead or absent or mentally ill or his sentence has been prescripted.

After the annulation of a judgement, the court can also send the case to a competent court for hearings if this is possible. For example, when the revision proves the innocence of the convicted from one offence but not from another, in order to allow the court to issue a new, lighter sentence.

The innocent who has been harmed by the conviction, or his family if he is dead, has the right to ask for compensation. After the revision that proves his innocence, the new judgement will be posted on the walls of the city where the revised judgement was produced, the city where the new judgement was produced, in the town where the crime was committed ; and in the city where the innocent convicted lives. If the innocent convicted is dead the revision decision will be published in the official journal and in 5 newspapers which one revision claimant chooses. The public treasury bears the costs of the publication (article 621 C.P.).

B. The Rights to Compensation, Amnesty and Conditional Release

The law recognizes the right to indemnification for the judicial error, and it allows the convicted to benefit from amnesty and from conditional release.

1. Compensation for Judicial Error

The Criminal procedure states that the convicted who is newly judged innocent can be granted compensation because of the harm resulting from his conviction. If the person is dead his right to compensation passes to his spouse and close relations (children and parents). Other relatives may have the same right if they submit evidence that his conviction has resulted in material harm to them (art. 620 C.P.).

If the demand is accepted the State pays the compensation but has the right to claim against the civil rights claimant, the informer or the lying witness whose behaviour was the cause of the conviction (art. 620 C.P.).

2. Amnesty

According to the Penal Code, amnesty is one of the acts that may put an end to the sentence (art. 45 of 1963 dahir).

The amnesty can be a general one, decreed by a parliamentary text. It can also be a special amnesty granted by the King. The latter is more frequently used in Morocco.

The royal amnesty is organised by the Law of 6 April 1953 as amended by the Law of 8 October 1977. According to this law, the royal amnesty can be issued before the public action, during its exercise or after the sentence.

The royal amnesty can commute the death penalty to one of life imprisonment. It can also reduce the term of imprisonment or grant release to a prisoner. The amnesty does not apply to fines nor to educative measures for juveniles or disciplinary measures taken by professional bodies.

The amnesty can be granted to an individual or to a group. The individual amnesty can be granted at any time by a royal initiative, but very often it occurs after a demand from the accused, his family, relatives or friends. It can be asked for by the public prosecution or by the administration of the prisons. Group amnesty is granted on national and religious feast days.

The law establishes an amnesty commission which examines the demands for amnesty and submits proposals to the King. This commission is made up of the Minister of Justice or his representative, the director of the royal cabinet or his representative, the public prosecutor at the Supreme Court or his representative, the director of penal affairs and amnesty at the Ministry of Justice or his representative, and the director of prisons administration or his representative. The secretary of this commission is a public servant from the Ministry of Justice.

This commission meets on dates fixed by the Justice Minister or on the occasion of the national and religious feast days. The Minister of Justice is responsible for the implementation of the King's amnesty.

Among the most important examples of amnesty in recent years was commutation of the death penalty to imprisonment for 200 persons in 1994. Some of them had spent nearly 20 years in death "corridors". The death penalty is carried out only after the refusal of the King's pardon. In the same year more than 400 political prisoners were released. Moroccan and International Human Rights Organisations and opposition political parties had been calling for their release during the eighties.

3. The Conditional Release

This is defined by article 59 of the Penal Code as "the release of the prisoner before completion of the term because of his good behaviour in prison, on condition that he remains law abiding in the future. If his bad behaviour is proven or if he transgresses the conditions set by the release decision, he will be conducted again to the prison to end what remains of this sentence."

Articles 663 to 672 of the criminal procedure organise the conditions, the procedure and the implementation of conditional release.

As a condition the prisoner must serve half of his sentence's term but not less than 3 months. If he was recidivist he must serve 2/3 of the sentence but not less than 6 months in prison.

To benefit from conditional release, the director of the prison submits a file, by his own initiative or after a demand of the prisoner and his family. This file must contain an attestation of lodging or an attestation which promises a job for the prisoner after his release. It must also contain information about him, his familial and criminal record, his behaviour and skills. The file must be addressed to the director of the prisons department.

This file will be completed by the opinion of the public prosecutor of the court that convicted the prisoner relating the acts that led to the conviction and focusing on the good behaviour of the prisoner. It must also contain the opinion of the governor of the province in which the prisoner will settle after the release. This opinion relates the results of the investigation to the value of the lodging of work attestations.

At the proposition of the Amnesty Commission, the Minister of Justice can grant the prisoner conditional release. The decision of the minister can contain other conditions related to the payment of fines or compensation, the commitment to join the army or, if the released is a foreigner, to leave the country. The released must respect the conditions. Otherwise, a decision annulling the release can be issued by the Justice Minister after consulting the governor of the province and the public prosecutor of the district where the released is settling. As a result the prisoner will again be conducted to jail to end his sentence.

V. Ways of Implementing the Right to a Fair Trial on National and International Levels

The essential work to make the right to a fair trial more effective must be done at the national level. However, the contribution of the international community can be helpful for developing countries.

A. The Role of International Cooperation

The legal foundations for the right to a fair trial must be strengthened and the monitoring machinery must be improved. A special role can be played by the program of advisory and technical services of the United Nations Centre of Human Rights.

1. Strengthening the Legal Foundation of the Right

The final report on the right to a fair trial submitted by the rapporteurs of the Sub-commission on Prevention of Discrimination and Protection of Minorities has shown the importance and the feasibility of adopting an additional protocol on the right to a fair trial. Other conditions related to the ratification of some human rights conventions and to developing the legal authority of other human rights instruments could also help strengthen the right to a fair trial.

2. The Importance of an Additional Protocol to the Covenant on Civil and Political Rights

The Sub-commission's report has analysed the legal, logical and practical foundations for an additional third protocol on the rights to a fair trial. Out of its component rights this creates non-derogable rights, even in periods of public emergency. This protocol will render any reservations inadmissible.

From the legal point of view some of the rights to a fair trial are non derogable. The right to be protected from torture, the right to habeas corpus, the right to be protected against disappearance and the right to an effective remedy are rights recognised as imperative and non-derogable by some universal as well as regional instruments.This characteristic has been consecrated by the most influential jurisprudence.⁽³⁴⁾

Other components of the right to a fair trial take their non - derogable character from their interaction with these imperative rights or because they are necessary to protect them. How can a person be protected from torture, disappearance or arbitrary arrest if his rights to an independent and impartial tribunal, or his rights relating to defence, have been suspended?

As the report clearly analysed, the fact is that serious violations of human rights occur particularly in emergency periods, so that a protocol making the right to a fair trial non-derogable can strengthen the judicial guarantees which are crucial in such periods.⁽³⁵⁾

The implementation of the right to a fair trial does not prevent the authorities from protecting public order, stability and the rights of others. Rather, it is this implementation which helps to reach these objectives in a democratic society.

3. The Importance of the Ratification of Some Human Rights Conventions and the Strengthening of the Legal Foundations of Other Instruments and Procedures

The practical importance of a third protocol on the right to a fair trial depends on the ratification by, or accession of, States to the Covenant on Civil and Political Rights. Moreover, respect of the other rights this covenant contains will greatly help to implement respect for the right to a fair trial. Rights closely linked with political participation (such as the right to genuine, free and periodic elections, the right to freedom of association, the right to freedom of expression and information) can contribute to strengthening the right to a fair trial. The other rights are also important for a more complete exercise of the right to a fair trial. Indeed all human rights are indivisible and interactive.

Economic and social rights are also very important in establishing the foundations for an equitable, stable and more just society. The ratification and the implementation of the Covenant on Economic, Social and Cultural Rights is also crucial for the right to a fair trial and other human rights. The Convention against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment is very important because it protects, in greater detail, some rights closely linked to the right to a fair trial, especially during the pre-trial detention period. It protects some rights related to the trial period (e.g. the non-recognition of evidence extracted by torture) or to the post trial period (e.g. compensation and prosecution of those responsible for torture). This very important convention needs universal ratification in order to apply some of its provisions at the universal level, such as the prosecution of torturers around the world.

Other very important instruments only take the form of declarations.This is, for example the case in The Declaration on the Protection of All Persons Against Enforced Disappearance (1992), The Declaration on the Protection of All Person Under any Form of Detention or Imprisonment (1988), The Standard Minimum Rules for the Treatment of Prisoners, and The Basic Principles on the Independence of the Judiciary (1985). While the rights contained in these and other declarations and similar instruments are protected by some conventions, it would be better if they acquired a more obligatory legal character. This would make the monitoring of their implementation easier for international governmental and non-governmental organisations and institutions.

All these international instruments have thematic mechanisms for monitoring and reporting on the protected rights. While they are not formally linked to these instruments, these mechanisms, such as the Working Group on Enforced Disappearances, the Special Rapporteur on the Independence of Judiciary and the Working Group Against Arbitrary Detention are useful mechanisms. A more obligatory legal character in the above instruments would facilitate the work of these monitoring institutions.

However, the strengthening of the legal foundations of Human Rights also needs incentive measures as we will shortly mention.

4. The Need for the Movement of Monitoring Machinery and Incentive Measures

The strengthening of the monitoring machinery of the United Nations in the field of human rights requires on the one side a remedy for its shortcomings and weaknesses. On the other side, it requires in the majority of developing countries, the adoption by the international community of incentive measures in order to establish a link between international economic cooperation and human rights. Finally, towards the reluctant regimes implicated in serious violations of human rights the international Community must institutionalise deterrent measures.⁽³⁶⁾

5. The Necessary Remedies to the Shortcomings of U.N. Human Rights Monitoring Machinery

The proposal of a third optional protocol related to the right to a fair trial fits within the framework of the conventional monitoring machinery, namely the reporting system and the communication system. It is likely that the protocol will benefit from the thematic monitoring machinery. The efficiency of the machinery however, depends on strengthening its components and readdressing their shortcomings.

The convention mechanisms such as the Committee of Human Rights or the Committee against Torture need more financial and human resources to allow them to fulfil their mandate effectively. They badly need time, qualified personnel, equipment and financial resources to examine reports and communications, to follow up recommendations and to make general observations.

The independence of the experts composing these bodies must be strengthened. One of the weaknesses in this aspect is that these experts are presented as candidates exclusively by their governments. One possible reform is to allow Non Governmental Organisations (NGOs) to present candidates. These NGOs have proven to be a positive partner in the human rights struggle for dignity.

It would also be possible to enhance the experts' independence by granting them a salary which would allow them to spend more time fulfilling their mandates.

The Commission of Human Rights must give more importance to the follow-up of these bodies' recommendations and conclusions. This requires another reform linking international aid granted by the United Nations system as a whole to the States that cooperate in good faith with human rights monitoring bodies.

The thematic bodies also need financial help to strengthen their resources,to allow experts to visit the countries in fact-finding missions and to investigate the human rights situation on the ground.These thematic procedures also need more political and legal backing from the Commission on Human Rights and the General Assembly in order to bring governments to cooperate in good faith and to apply the experts' and rapporteurs' recommendations.Their will to do this depends on the institutionalisation of promoting and deterrent measures according to each State's situation.

Experience tells us that cooperation with NGOs is positive. It would be very useful to strengthen the legal basis of this cooperation and the role of these NGOs in the human rights program within the UN system and to stop the attacks of non-democratic governments on these representatives of civil society.

6. The Necessity of Adopting Promoting Measures

The monitoring systems can not reach their objectives in the absence of minimum economic social and educative levels of the environment to which they apply. The experience of Latin American countries is glaring evidence of this. Despite very sophisticated mechanisms at this regional level similar to those of the European Council (the Commission and the Court of Human Rights), and in spite of the courageous work and jurisprudence of these institutions, the situation of human rights remains very critical even with the withdrawal of military regimes and the holding of free elections.

Widespread poverty is due to unjust social structures, unjust distribution of wealth and the dependence of these economies on the capitalist centers, in particular the burden of debt which is a result of this dependence but which feeds it at the same time.

Experience in third world countries tells us that besides the lack of political will for change and the monopoly of power political as well as economic, another cause of the deteriorating human rights situation is the lack of economic resources. It is true that bad government holds the major responsibility for the economic situation but the unjust nature of international trade finances and the economic system also contribute to this situation. Human rights also need investment to build and to equip tribunals, to improve wages of judges, to invest in training judicial personnel, to build prisons and detention centers with adequate facilities, etc.; all this requires financial resources. These are the sine qua non conditions for some rights related to a fair trial.

Promoting human rights in third world countries requires investment, especially by rich countries. This would be a very productive investment. Besides its ethical, human and legal grounds, this investment is useful for the world's security and peace. The promotion of democracy and human rights in these countries is a factor of stability. It improves the quality of government, improves the living conditions of people and makes their participation more genuine and productive in the development process. This also leads to halting bad trends and development such as overpopulation growth,environmental destruction, illegal immigration, political violence and terrorism, organised crime and internal or international conflicts.

The investment in human rights should not consist only of providing expertise or limited aid in specific areas such as constitutional and legislative reform, training judges and lawyers or supporting projects for the poor, women or NGOs or monitoring elections. All these are very positive measures, but alone, they can not lead to substantial changes. Indeed they are threatened by regress and failure if the promotion of human rights is not broadly linked to the promotion of development and people's rights to peace, to development and to equitable distribution of global resources. Democracy and human rights can not stand in societies exhausted by debt, where the structural adjustment policies of financial institutions lead to cuts in health, education, lodging, social programs and the public investment necessary to promote employment and to promote even private investment and political stability.

This situation leads to the violation of economic and social rights.⁽³⁷⁾ Because human rights are indivisible, this also leads to civil and political rights' violations.

Hence, promoting human rights can not be isolated from promoting democracy in international relations political as well as economical. But promoting human rights also requires deterrant measures.

7. The Necessary Institutionalisation of Deterrent Measures

Some regimes that violate human rights do not do so because of lack of resources. In the process of monopolisation of power they do not hesitate to intimidate their political opponents using the repressive legal arsenal, the dependent and servile judicial machinery and the fierce police apparatus. Deterrence becomes necessary to these regimes to oblige them to respect these rules of civilisation -- human rights norms. But the deterrent measures must not be taken unilaterally by some States. In order to reconcile the non-intervention principle and human rights promotion, deterrent measures must be institutionalised in a democratic and multilateral way. These measures must take into account the principles of proportionality, non-selectivity and be taken under the controls of the UN system.

Besides diplomatic and economic sanctions, the sale of military and repressive equipment must be cut. The criminal repression must be strengthened after the international norms have been developed. The International Law Commission has adopted a draft code on the Crimes Against the Peace and Security of Mankind. Several drafts of an International Penal Tribunal have been formulated.⁽³⁸⁾

It is necessary to establish a permanent criminal tribunal of ad hoc tribunals because all serious violations of human rights must be punished regardless of the criminals, the countries or the political considerations.

Moreover some human rights conventions such as the Convention for Prevention and Repression of Genocide and the Convention Against Racial Discrimination remain without the judicial support necessary for the full implementation of these conventions. The impunity that great human rights' violators enjoy in their countries is another factor in favor of an International Penal Tribunal. This tribunal will show the determination of the international community to respond severely to serious human rights violations. It will also play a pedagogic role relating to the right to a fair trial: the exemplary nature of its objective law (penal code) and procedure and its jurisprudence will enhance the right to a fair trial at the universal level.

8. The Possible Contribution of the Advisory Service of the UN Center of Human Rights

This program managed by the Human Rights Centre of the United Nations can play an important role in promoting the right to a fair trial, especially in countries asking for its assistance.

This program, which must be strengthened by financial and human resources, can contribute to the implementation of the right to a fair trial in four respects:

1. Promoting the cooperation of the State with the UN Human Rights system by helping the State to adhere to conventions, to reform its legislation, etc., in a word, to be a good example in this cooperation.

2. Providing special expertise in the field of legislative reform in three major fields related to the right to a fair trial: (a) the reform of the criminal laws in a way that makes them conform with human rights standards; (b) the reform of criminal procedure laws and regulations taking into account U.N. norms; (c) the reform of judiciary laws, relating to judges, lawyers, etc.

3. Providing training for lawyers, judges, university teachers, educators, police officers, prison guards and other public servants in the judicial system. This training must incite these people to promote the rights to a fair trial -- as universally recognised at the national level -- to integrate it in the domestic culture and in administrative and judicial practices.

4. Promoting institutional and technical reforms related to the right to a fair trial such as the organisation of the judiciary, prison systems, alternative experiences to prison, organisation of judicial training institutions, etc. This could be based upon the experience the of Human Rights Centre.

B. The Promotion of the Right to a Fair Trial at the National Level

The promotion of the right to a fair trial requires political commitment at the highest level of power. However, persuasion and pressure, internal or external, from the NGOs, democratic forces, the international media, etc., can contribute to shaping this political commitment.

In the light of Moroccan experience, the major needs to make the right to a fair trial more effective are:

1. The reform of national legislation to make it conform with international norms of human rights.This concerns criminal law and procedure as well as law related to the judiciary and lawyers.

2. The allocation of sufficient resources to the judiciary in order to guarantee the right of access to justice and other rights related to a fair trial. The judicial system must have the means to be effective, independent and respected by all.

3. To give more importance to the formation and training of judges, lawyers and officers working in, or in relation to, the judicial field. This implies the reform of faculty of law programs and teaching methods, the reform of programs in police academies and prison officers' institutes.

4. The establishment of more effective monitoring bodies and procedures in order to assure a good and fair functioning of the judicial system. Judicial and financial controls as well as controls by the mass media, NGOs and international bodies must permit the opportunity to monitor properly the right to a fair trial.

5. The formulation of an education and information policy to promote human rights education and culture.

6. A closer and more confident cooperation with NGOs and civil society representatives to promote human rights, including the right to a fair trial.

Conclusion

Internal determination and effort are essential to promoting the right to a fair trial which can not be isolated from other human rights. However, the cooperation and assistance of the international community are important in promoting these rights in developing countries. This requires the promotion of more democratic and equitable political, economic and cultural relations at the national level as well as at the international level.

1. A draft of this protocol is annexed to the final report prepared by Mr.Stanislav Chernichenko and Mr. William Treat on the right to a fair trial which was submitted to the Sub-commission on Prevention of Discrimination and Protection of Minorities. Document E/CN.4/Sub. 2/1994/24, 3 June 1994.

2. We will not analyse here the "collectivities and arrondissements courts" which deal with minor disputes and do not deal with matters related to individual freedoms.

3. The dahir is the royal decree by which the king legislates on general issues or appoints high officials. The first exercise is used mainly when the parliament is not yet elected, or when it is suspended or dissolved. Very important laws have been issued by dahir between 1965 (proclamation of State of Emergency) and 1977 (the election of the first parliament after the Constitution of 1972).

4. The Moroccan legislation establishes four categories of offences (articles 15-16-17-18 and 111 of the penal code): (1) "contraventions of simple police--offenses punished by less than 1 month imprisonment and / or by a fine of less than 120 dirhams (9 dirhams = $1 US); (2) "police offences" -- offences punished by imprisonment of up to 2 years with or without fine; (3) the "correctionnel offences" -- offences punished by more than 2 years with or without fine; (4) Crimes -- offenses punished by death penalty, life imprisonment or determined imprisonment (between 5 and 30 years) or by house arrest or the negation of civil rights.

5. To remedy this, the legislator instituted juvenile specialised judges in the appeal courts and made investigation obligatory and confidential in juvenile cases.

6. Mohamed Ayyat, A study in criminal procedure (in Arabic), Rabat Vol. 2, p. 201.

7. See Amnesty International's general reports on torture in 1974 and 1984.

8. Ayyat (note 6), p. 54.

9. See Final statement of The National Congress of the Moroccan BAR Association, Oujda -- 1987 published in the revue of the Association Al Mohamet; Amnesty International: Morocco Human Rights violations in Garde à vue detention -- London, January 1990; The Moroccan Organisation of human rights through its communiques and positions: 1988 - 1990.

10. As I witnessed during the summary trials which followed Fes popular riots in 14 December 1990 at the occasion of a general strike.

11. Ahmed Khamlichi, The explanation of the law of criminal procedure, Rabat -- 1990 (in Arabic), pp. 48 - 50.

12. Id., p. 50.

13. Abdelaziz Benzakour in: The defence and the protection of the individual liberty, in preventive detention symposium, Judicial Review, Natural Institute of Judicial Studies no. 18, 1978, pp. 49 and 51(in Arabic).

14. Id., p. 52.

15. Dahir of 30 December 1991.

16. O.M.D.H.: observations de l'OMDH sur le rapport gouvernemental au comité des droits de l'homme -- Octobre 1994 (version Arabe), p. 41.

17. M.O.H.R.: Observations of the Moroccan organisation of Human Rights on the official report to the Committee against Torture in 1994 (arabic version), p. 18.

18. Some lawyers and judges have confirmed this for the researcher.

19. Mohamed Kachara is a poor peasant from Taounat, near Fez. In a conflict about land with an influential neighbour he was arbitrarily detained with his son and daughter. This occurred several times.

20. Observations on the Torture Report (note 17), p. 13 para. 56.

21. Dahir of 30 April 1959 relative to the prevention of mental illness, treatment and the protection of mental patients.

22. Observations on the Torture Report (note 17), para 49.

23. Mohamed Idrissi Alami Machichi, Procedure Pénale, Casablanca, 1982, p. 238.

24. The Moroccan Organisation of Human Rights and some opposition newspapers have condemned these practices and discourse.

25. The Moroccan Organisation of Human Rights: A report on the trial of Mr. Amaoui-Rabat, 22 April 1992.

26. See The Government versus Noubir Amaoui: A contribution to the legal and political debate, (in Arabic), ittihad Al Ichtiraki, April 1992.

27. The Moroccan Organisation of Human Rights, Observations on the official report to the Committee for Human Rights, p. 60. In August 1995, Dr. Lahlou benefitted from a royal pardon.

28. See note 1.

29. As explained to the author by a journalist specialised in judicial matters.

30. Published in the Assistant Judicial Review of the National Institute for Judicial Studies no. 18, 1987 (in Arabic).

31. The Moroccan Organisation of Human Rights, Observations to Human Rights Committee (note 27), p. 4.

32. Ahmed Khamlichi (note 11), pp. 376-384.

33. These examples have been cited by Ahmed Khamlichi id., pp. 384-386.

34. See the developments discussed in the Sub-commission's report, pp. 23-45.

35. Id., p. 37, especially para. 131.

36. For a detailed analysis of these questions see Abdelaziz Nouaydi: United Nations, development and Human Rights -- The shortcomings and the necessary reforms, (in Arabic) Casablanca, 1995.

37. See reports of Mr. Danillo-Turk, The Realisation of Economic, Social and Cultural Rights, especially the Second Progress Report to the Sub-commission of Human Rights, U.N. Doc. E/CN.4/sub 2/1991/17 of 18 July 1991.

38. For more analysis see M.Cherif Bassiouni, Draft Statute International Tribunal, Association Internationale de Droit Pénal, ERES, 1993.