Morocco: archaic sentencing

Abderrahim Jamaï. The last execution took place in 1993, yet judges continue to impose the death penalty. It’s a contradiction. The decision to impose the death penalty is made at the appeals court level.

The Criminal Code contains a certain number of crimes subject to the death penalty, but it is never a mandatory sentence. Therefore, judges have the discretionary power to impose the death penalty, or one that is less severe, depending on their convictions.

If the decision is made and the request for a royal pardon is rejected, the execution becomes the responsibility of the Ministry of Justice.

Julia Bourbon Fernandez. It’s a problem that we find in all countries with a death penalty moratorium. We see that as long as there are legal provisions in the criminal code, or in various legal texts, judges continue to impose this sentence. Morocco has 48 legal provisions allowing for the death penalty. The long list of crimes includes crimes of terrorism, armed robbery, kidnapping, treason, torture…

Carole Berrih. In order to understand this practice, we need to look at the history of the death penalty in Morocco. The penalty is a very long-standing one which has become largely institutionalised. We no longer live in the Years of Lead, that period of social upheaval where the majority of political opponents were convicted and then executed. When we look at the type of crimes subject to the death penalty, we can see that some recent death sentences are directly linked to highly publicised cases that affected public opinion. One can see that the death penalty is being used to garner public support.

JBF. There is also this paradox in Morocco of wanting to integrate the provisions of the International Criminal Court’s Rome Statute into its own legal system, while respecting the country’s existing legal arsenal and the principle of proportionality between infractions and sentences. So, there is real tension regarding the reform of the Criminal Procedure Code and the Criminal Code because there is no real will to remove the death penalty from the legal arsenal, and at the same time it feels necessary to reduce the number of infractions punishable by death. But if the prosecution of genocide, war crimes and crimes against humanity were included in the Criminal Code, there would be an obligation to impose the death penalty for these crimes in order to respect this principle of proportionality of crimes and sentences of the Moroccan legal system. The application of this sentence would be up to the discretion of the judge, which is particularly problematic and delicate.

AJ. We have a criminal policy problem. We call on the Justice Ministry and the Public Prosecutor to change the structure of this policy. But the amending of the Criminal Code and the Criminal Procedure Code, launched 11 years ago already, is still ongoing. The Constitution favours the international rule of law over domestic law. In practice, resolving the problem would mean signing the Second Optional Protocol (OP2) to the International Covenant on Civil and Political Rights (ICCPR) aimed at abolishing the death penalty.

JBF. We are really at a point in Moroccan history when the death penalty no longer makes any legal sense. The purpose of this report is to point out the senselessness of this penalty. There are very few death sentences anyway: there have been fewer than a dozen a year since 2017. Royal pardons are regularly granted, especially on religious feast days, resulting in approximately 80 people remaining with applicable death sentences.

AJ. This measure was influenced by visits to American maximum-security prisons. Over the past dozen years, the architecture of Moroccan prisons has changed, with more resources, security doors, surveillance technologies, data processing policies, separation measures, etc. There are now several maximum-security prisons. It is a way for the prison service to maintain control over the prisons. Among these security measures, the administration has chosen to place those with definite sentences according to their level of danger to society. For example, those who are convicted of terrorism are isolated and do not have the same daily privileges as the other prisoners. This classification has grave consequences, especially in terms of reduced contact with the outside, particularly with loved ones.

CB. It is the crime and not the sentence that determines someone’s classification. A person sentenced to death is not automatically classified as dangerous.

What is particularly troubling for people sentenced to death who are considered dangerous, is that they don’t see an end to their sentence, resulting in the absence of hope and a future that is reinforced by their isolation from the outside world. That is probably why there have been suicides recently among people sentenced for crimes deemed particularly serious.

The lack of transparency in the classification criteria is concerning, not only for civil society, but also for the prisoners and their families. The classification system was drawn up through several internal memos which were not made available to the public. So, no one knows if a prisoner may, for example, be moved from one category to another to reflect behaviour.

JBF. There is no official death row in Morocco. Theoretically, prisoners with death sentences are placed with other prisoners, and they are not confined to a specific section. But, because they are classified as dangerous, it might as well be death row. Because of their unique circumstances as persons sentenced to death in a country with a moratorium, they face an endless wait, made worse by the isolation, that some United Nations mechanisms consider to be a form of torture. It is truly a very difficult situation for these people and their families.

CB. It must also be asked what responsibility international actors have regarding Morocco, beyond the country’s individual responsibility, for having implemented these security measures that contribute to the suffering, isolation, and suicides of prisoners. It is not clear how these prison models can be set up without taking this into account.

JBF. So there is a real need to ensure that there is monitoring and an assessment of the impact of these judicial and criminal cooperation accords between different countries.

AJ. The real suffering of people sentenced to death is caused by the lack of connection with others, with the outside, and with family. The ability of families to travel is limited due to long distances or poverty. These prisoners usually come from middle or poorer social classes. There is also much mental suffering.

Every prisoner loses the possibility of leading a normal life in prison, but it is much worse for those sentenced to death. For many of them, medical care to help them mitigate mental health problems is non-existent. There is an overall lack of necessary and effective health care in prison.

Medical appointments are not easily available and treatments are not effective. There was an effort made to establish very advanced health centres in some prisons. But the problem is mainly the lack of medical personnel and the inability of hospitals to meet the needs of prisoners.

CB. Mental health was already a great cause for concern during the last fact-finding mission ten years ago, and it appears that very little has changed. As for physical health, the situation seems to have improved from ten years ago, with better medical teams. There are still issues, however, in accessing medical specialists, despite this access being even more necessary when people are in a situation where detention has no end. One person, in the report, said that eyeglasses were not available. Imagine if you spent your entire life in detention without being able to see what was around you, without recognising people, or being able to read. These are the terrible conditions they endure.

JBF. Generally speaking, I also think people in Morocco have a particular perception of psychologists and getting psychological help. The report on mental health is complicated because there are still taboos around it, making it even more difficult to monitor people with death sentences. It should also be noted that during the COVID-19 period, like in many countries, there was a greater lack of access to medical and mental health care than ever before. It must also be pointed out that, despite a few problems concerning the respect of human rights in Morocco, there is still a degree of transparency that does not exist in other countries. There is an effort on the part of the authorities and the Délégation générale à l’administration pénitentiaire et à la réinsertion (DGAPR) to publish reports with a certain amount of data on the prisons. The very important documentation work by civil society must also be highlighted as it contributes to the ongoing discussions on criminal policy.