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Culture of human rights is emerging in Morocco but more is needed to eradicate torture

RABAT (22 September 2012) – At the conclusion of his visit to Morocco* from 15 to 22 September 2012, Juan E. Méndez, the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment delivered the following statement:

First, I would like to express my appreciation for the full cooperation extended to me during my visit, in particular in regard to unrestricted access to all places of detention and unimpeded access to interview detainees in private. There was an obvious readiness and preparation that greeted me at the prisons, police stations and juvenile centers in Rabat, Salé, Kenitra, Skirat-Témara and Casablanca. Although that fact may have detracted from my ability to see these places more spontaneously, I do appreciate the impressive effort undertaken to invest in the upgrading and renovation of these facilities.

Regrettably, meetings with civil society were monitored by authorities and the media and cameras were awaiting my arrival at every location. This created a climate of intimidation experienced by a number of individuals I interviewed during the visit. I have asked for and received assurances from the authorities that clear instructions will be communicated, to all levels of authority, that neither intimidation nor any sort of reprisals will be tolerated.

I can state that a culture of human rights is emerging. There is the political will among the various authorities I have met, and in particular the Ministry of Foreign Affairs and the Inter-Ministerial Delegation of Human Rights, to build up an institutional culture that prohibits and prevents torture and ill-treatment. The establishment of the National Council of Human Rights (NCHR) is the most prominent institutional aspect of this emerging culture. The efforts undertaken by the NCHR and its various regional offices to further raise awareness among authorities and civil society and to promote the protection of human rights are already bearing fruit. The NCHR is an independent and highly credible body and its reports carry great moral weight. It can become an effective monitoring mechanism and mediator between the State and its citizens if its recommendations are implemented in good faith. I encourage all parties to be fully engaged to strengthen this institution.

Crucial to the development of this emerging culture is the extraordinary effort made by Morocco to reckon with the legacy of past abuses during what Moroccans call the “years of lead.” There has been an exemplary effort to discover and disclose the truth and to offer reparations to victims, including long term rehabilitation services under many forms. A measure of institutional reform is visible as well, although the crucial obligation to investigate, prosecute and punish mass atrocities – including torture – has yet to be fulfilled.

Efforts are still needed to increase trust and cooperation between the State and civil society so that all non-governmental organizations are able to work more effectively with national and international mechanisms and to conduct advocacy on the basis of well documented cases.

The new Constitution of July 2011 has introduced some encouraging changes in the normative framework. It is difficult, at this stage, to assess their actual impact but there appears to be a commitment from the highest levels of authority and I hope that the sustained effort required will continue. The Constitution forbids under all circumstances acts of torture or acts that are “cruel, inhumane, degrading or that harm one’s dignity”. While the Penal Code and the Code of Criminal Procedure criminalized torture before 2011, I welcome the introduction of these principles in the new Constitution and the demonstrated will of the authorities to accord them primacy. I will evaluate if further amendments to the definition of torture may be needed to bring the offense in line with international law. I encourage the ratification of the Optional Protocol to the Convention against Torture as soon as possible; noting that ratification is not an end in itself but a process and implementation is the real challenge.

The situation on the ground regarding the practice of torture has generally improved from the past decades when there were widespread disappearances, secret detention and torture. However, I received credible testimonies of undue physical and mental pressure on detainees in the course of interrogations. These events happen frequently enough to deserve attention and efforts to eradicate them. While the practice of cruel treatment persists in ordinary criminal cases, it should not be surprising that treatment amounting to torture appears when there are highly charged events such as large demonstrations, a perceived threat to national security or terrorism. At those times a corresponding increase in acts of torture and ill-treatment during the detention and arrest process can be detected.

A noted independent forensic expert accompanied my team and reviewed medical reports and conducted a number of medical exams. My preliminary finding is that in recent cases there are credible reports of beatings (with fists and sticks), application of electric shocks and cigarette burns. In addition, I have good reason to believe there were credible allegations of sexual assault, threats of rape of the victim or family members and other forms of ill-treatment. I was presented with a number of cases where the injuries show treatment that amounts to torture.

As of today, the admission of confessions as evidence before the court is at the discretion of the judge. I was assured that confessions alone are not sufficient evidence for a conviction, as other corroborating evidence is needed. That is a welcome safeguard but I am afraid it is not enough to deter torture in practice. International law obligations require the exclusion of confessions or declarations obtained under duress and they should not be part of the record of the case at all. Article 293 of the Code of Penal Procedure prohibits the admission of any confession or statement made under duress. However, I received numerous complaints about the use of torture by State officials to obtain evidence or confessions during the initial stage of interrogation, in particular in counter-terrorism or internal security cases where extensions of detention are permissible before access to a lawyer.

The Code of Criminal Procedure does guarantee access to a lawyer but this safeguard is not fully realized under law or practice. The detainee is granted access to a lawyer of his own choosing only after 24 hours after the arrest, for 30 minutes and in the presence of an investigator. In the procedure of Decree 0303 (national security and counter-terrorism cases), the garde a vue can last for three consecutive periods of 96 hours and in all that time there is no right to a lawyer. In addition, even those terms can easily be violated simply by delaying the registration of the arrest. Access to a lawyer should be from the moment of arrest or detention and without requiring the authorisation of the Prosecutor, as currently stipulated. It should be granted as a matter of law and any police official who denies access should be disciplined. Based on the high number of allegations I received, it appears to be the norm that prosecutors and investigative judges dismiss complaints of torture or fail to investigate such allegations.

At my request, I received examples and statistics in which persons have been acquitted despite having confessed to crimes, but so far I have not seen concrete examples in which courts apply the exclusionary rule mandated by international law with regard to torture. That is, cases in which a confession is ruled inadmissible because a court has determined that it was obtained under duress.

One of the reasons for non-application of this important principle may be the poor quality of medical and forensic reports, which currently provide little assistance to the prosecutors and judges in their decision making process. There is a need for significant investment in the fields of psychiatry and forensic medicine, accompanied by specific training of forensic experts on the assessment of ill-treatment and torture, in line with international standards, including the Istanbul Protocol. In practice, the safeguards against torture do not effectively operate because “there is no evidence” that torture has happened and so the confession or declaration remains on the record and no serious effort is made to investigate, prosecute and punish perpetrators.

The complaint system regarding allegations of torture and ill-treatment, and investigation, prosecution and punishment of perpetrators, with the exception of a very few cases, seems to be in law only. This gap between law and practice must be closed. I encourage the authorities to further develop the forensic capacity of the prosecution and judiciary and implement the right to complain and to ensure that defendants who first appear before them have a fair opportunity to raise allegations of torture or ill-treatment they may have experienced by the police or intelligence services.

It appears that there is a spike in occurrences of excessive force when the police or other authorities respond to incidents that involve assembly. Whether the demonstrations are authorized or not does not give the authorities the right to exercise excessive force. The right of peaceful assembly should be upheld and when demonstrations seem to get out of hand the police have a duty to maintain order and curb violence, but it must do so in compliance with international standards that are based on necessity and proportionality with respect for the right to life and physical integrity. Allegations of serious injury during recent events have not been confirmed by my initial inquiries.

The General Delegation for Prison Administration and Reintegration has embarked on a large scale project to shut down some of the older prisons, construct new prisons and expand and renovate others in order to improve conditions. The institutions I visited had all benefited from substantial renovations, fresh paint, new bedding and blankets, and very clean sanitation areas. I strongly hope these improvements will remain in place and that improvements are made to all other prisons I could not visit. Integrating the prisoner health services under the Ministry of Health could also contribute to a higher standard of medical service. The NCHR will shortly release a report on the situation of prisons and prisoners. This is most timely and needed and I will take this report and their recent report on psychiatric hospitals into consideration in making my recommendations.

Overcrowding is an issue that needs to be addressed and the authorities themselves have openly acknowledged this. There is a prison population of about 67,000 detainees (convicted and pre-trial). We heard conflicting figures as to the total capacity in the prison system. The Delegate General told us it was 48-50,000 while the NCHR estimates it at 37,000. In each of those figures the rate of overcrowding would be around 34% and 80% respectively. These figures may underestimate the real rate of overcrowding because the rates are based on the number of beds available in relation with the actual population. In some of the prisons I visited, the beds themselves were so close together that, even at full capacity or somewhat below capacity, living conditions would still be overcrowded. Perhaps a better indication of overcrowding would be to divide total inhabitable capacity by the 67,000 population. I understand that figure would be between 1.5 and 3 cubic meters per inmate.

While acknowledging the difficult situation for the authorities regarding the flow of undocumented migrants, particularly in the north of the country, I express concerns about the increase of reported violence of security forces against this particularly vulnerable group. Severe beatings, sexual violence, and other forms of ill-treatment appears to be on the rise. I urge the authorities to take all necessary measures to prevent further violence and to investigate reports of violence against sub-Saharan migrants. In this context, I visited the holding cells of Casablanca Mohammed V Airport and found four persons detained from Angola, Guinea and Liberia who were held in decent conditions awaiting deportation.

During my visit to Laâyoune, Western Sahara I was overwhelmed with the vast number of requests to meet and the hundreds of cases received prior and during my two-day visit. I was regrettably only able to meet with a sample of alleged victims and representatives of civil society but I will examine each submission in detail so that all information that falls within the scope of my mandate is considered. I visited the local prison and the Moulay el Hassan Bel Mehdl Hospital in Laâyoune and the Gendarmerie station in Port Laâyoune. The women’s section of the prison and the psychiatric center at the hospital, which had been recently renovated, were of particularly high standard.

I thank all interlocutors for their engagement. I will present my report to the Human Rights Council in Geneva in March 2013.

*The independent expert also visited Laâyoune, Western Sahara, on 17 and 18 September 2012.