Justice El Hadji Malick Sow
Chair-Rapporteur
Working Group on Arbitrary Detention
Office of the High Commissioner for Human Rights
Re.: Working Group on Arbitrary Detention: Country Visit to Morocco 9 – 18 December 2013
Dear Justice Malick Sow,
The Euro-Mediterranean Human Rights Network (EMHRN) welcomes today’s country visit to Morocco by the UN Working Group on Arbitrary Detention. In view of this 10-day field-mission, the EMHRN would like to highlight the systematic use of arbitrary detention by Moroccan authorities and the resulting human rights violations of detainees.
In 2003 Morocco adopted law No. 03-03 of 28 May 2003 on Combating Terrorism, which establishes a very broad definition of the term “terrorism,” and effectively enables Moroccan authorities to carry out indiscriminate and wide-spread arrests at their discretion. Acts that may be considered as terrorism under this “anti-terror” legislation include expressing criticism of government policies, document forgery, money laundering, and robbery as well as willful damage to public property. The law goes as far as criminalising the mere praising “of acts” considered to “constitute terrorism offenses,” whether expressed in writing, by speech or in print.
Moreover, this law allows the police to hold an alleged offender in police custody (so-called garde à vue detention) in conditions which are in clear violation of international human rights law. Detainees can be held for up to 12 days, without access to a judge, and often without being informed of the charges brought against them. They are routinely held incommunicado in secret facilities, where many face ill treatment or torture. Moreover, the 12-day limit of police custody is frequently exceeded, and family members are not informed of their relatives’ detention.
Article 9 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary arrest and detention, stipulating that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” The same article guarantees the right of anyone who is arrested to be informed of the reasons for his arrest and of any charges brought him, to be “brought promptly before a judge” and to be tried ”within a reasonable time,” or to be released. In its General Comment No. 8 (Article 9) the Human Rights Committee determines that detainees must be brought before a judge within a few days of the person’s arrest. Moreover, the right to a fair trial is jeopardised when prompt and regular access to a lawyer, a paramount safeguard against abuses such as torture and coerced confessions, is denied.
Furthermore, despite the announced reforms in Morocco’s migration policy, routine collective arrests and arbitrary detention of irregular migrants continue to be a major concern. Pending their removal from the country, migrants are held in detention outside of any legal, penal or administrative procedure. They are detained in diverse locations, ranging from army barracks over police stations to cabins in the woods, and denied access to a lawyer, to interpreters and to a fair trial in front of a competent and impartial court of law.
This practice, which primarily affects migrants from Sub-Saharan Africa, is in flagrant violation of both Moroccan and international law. Law 02-03 on the entry and stay of Foreigners in the Kingdom of Morocco, Emigration and Immigration (hereafter Law 02-03) guarantees the right to be presented to a judge within 24 hours (Article 35) and stipulates that detainees may request the assistance of a lawyer and an interpreter, and may contact the consulate of his country or a person of his choice (Article 36). Furthermore, Article 16(4) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that “Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.”
The EMHRN therefore calls upon the Working Group on Arbitrary Detention to pressure the Moroccan authorities to:
Enforce compliance with the provisions of the International Covenant on Civil and Political Rights (ICCPR), General Comment 8, Article 9 adopted by the Human Rights Committee and Moroccan legislation governing garde à vue detention;
Enforce compliance with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families as well as with those provisions of Law 02-03 in line with international standards, so that migrants deprived of their liberty are no longer detained outside of any legal framework and have effective access to all legal guarantees;
Immediately cease all secret detentions, including those taking place in officially recognised detention facilities;
Reaffirm the principle that arbitrary detention should never take place, that immigration detention should only take place as a measure of last resort and that in all cases, conditions of detention must comply with basic human rights standards and international conventions of which Morocco is signatory.
Finally, the EMHRN strongly encourages you and the UN Working Group to meet during your field mission with local civil society organisations to discuss the legal and factual implications for victims of arbitrary detention in Morocco.
Yours sincerely,
Michel Tubiana
EMHRN President