Dec 21, 2017 | News
The ICJ today called on the Moroccan authorities to effectively investigate and prosecute sexual and gender-based violence (SGBV) offences, including by ensuring the rights of victims to effective remedies and reparation and by combatting the impunity prevailing in Morocco over such offences.
The statement came following a high-level mission to Morocco from 18 to 21 December 2017 in which the ICJ launched its memorandum Morocco: ensuring the effective investigation and prosecution of sexual and gender-based violence against women and girls, and engaged with members of the government, the Parliament and the judiciary on the findings and recommendations of the memorandum.
Based on a review of 75 judgments handed down by Moroccan First Instance Tribunal and Courts of Appeal in cases involving SGBV offences, and on interviews with various actors in the justice system, the ICJ documented how the lack of guidelines on investigating and prosecuting SGBV, combined with the inadequacy of evidentiary rules and procedures, frustrate the successful prosecution of SGBV cases in Morocco.
Cases are often dismissed on grounds of insufficient evidence; and sentences, in those cases brought to trial, are often disproportionately lenient. This is partly due to the prevalence of judicial stereotyping, reduction of sentence when the defendant marries the victim (a practice that itself raises human rights concerns), and the arbitrary or unexplained application of mitigating circumstances such as the “social situation of the defendant” or “the relative seriousness of the acts that were committed”.
“Moroccan authorities should overhaul the framework and procedures on investigation and prosecution of SGBV,” said Saïd Benarbia, Director of the ICJ Middle East and North Africa Programme. “They should ensure effective and timely protective measures for the victims; provide for clear guidelines and protocols for law enforcement officers, prosecutors, doctors and other health professionals, and consolidate and supplement the victims’ testimony with additional evidence, in particular medico-legal and forensic evidence.”
“Those in charge of investigations and prosecutions must also minimize the burden on the victims with a view to avoiding their secondary victimization; refrain from stereotyping, victims’ blaming and other harmful practices that undermine the rights of the victims, and challenge, by way of appeal, disproportionately lenient sentences,” concluded Martine Comte, honorary judge and former President of the Court of Appeal of Orléans, France, who led the ICJ Mission.
Contact:
Saïd Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41.22.979.3817, e: said.benarbia(a)icj.org
Additional information
The mission was led by Martine Comte, honorary judge and former President of the Court of Appeal of Orléans, France, and included Saïd Benarbia, Director of the ICJ MENA programme, and Giulia Soldan, Programme Manager of the ICJ MENA programme.
The ICJ delegation met with Mr Mohamed Aujjar, Minister of Justice; Mr Adil El Bitar, President of the Commission on Justice, Legislation, and Human Rights at the Chamber of Deputies; Mr Mohamed Abdennabaoui, President of the Office of the Public Prosecutor and Prosecutor General of the Cassation Court; and representatives of civil society.
This Press Release is also available in Arabic (in PDF format), here: MOR Mission Dec PR ARABIC
The memorandum Morocco: ensuring the effective investigation and prosecution of sexual and gender-based violence against women and girls is available (PDF format):
Nov 2, 2016
C. Principal areas of concern and recommendations Discrimination and violence based on sexual orientation and gender identity 11. The Committee is concerned at the criminalization of homosexuality, the fact that it is punishable by a term of imprisonment of up to 3...
Feb 13, 2016 | News
The ICJ today called for the reversal of last Thursday’s decision removing Judge Mohamed Al-Haini from office with suspension of his pension rights.
Judge Al-Haini, together with his colleague Amal Homani, was referred to the High Judicial Council by the Minister of Justice on unwarranted allegations of “violating the duty of discretion” and “expressing opinions of a political nature” following social media comments and media articles written by the judges in which they criticized the government’s Draft Laws on the Conseil Supérieur du Pouvoir Judiciaire and on the Statute for Judges.
The ICJ stresses that it is entirely appropriate for a judge to comment on matters of public interest that go to the organization and governance of the legal profession.
The ICJ, as well as Moroccan professional associations of judges and civil society organizations, has previously called on the Moroccan authorities to revise these same two draft laws to fully comply with international standards on judicial independence.
The ICJ is concerned both at the unfair and arbitrary nature of the proceedings against Judge Al-Haini. He was only granted two hearings before the High Judicial Council’s decision to dismiss him was taken.
Furthermore, several flaws in the proceedings curtailed Judge Al-Haini’s right to defense.
In particular, the High Judicial Council refused to strike the Minister of Justice from the disciplinary panel.
The Minister clearly had a conflict of interest, given his role in initiating the proceedings against the two judges.
As a result, Judge Al-Haini’s defense team withdrew from the case in protest.
At the second hearing the proceedings were carried out in the absence of any defense counsel.
“Despite recurring breaches of due and fair process standards, the disciplinary proceedings against Judge Al-Haini continued leading to the harshest disciplinary sanction possible in violation of principles governing the independence of the judiciary,” said Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme.
According to international standards members of the judiciary facing disciplinary proceedings have the right to an independent and impartial authority or court with all the guarantees of a fair trial.
The ICJ is further concerned that under the current legal framework in Morocco, the decisions of the High Judicial Council are not subject to any form of review.
This is clearly inconsistent with international standards that require that any disciplinary decision should be subject to an independent review.
“The absence of any possibility to challenge the decision of dismissal deprives Judge Al-Haini of a safeguard against the improper use of disciplinary proceedings, which is clearly the case here,” Boutruche warned.
The ICJ had previously called on the Moroccan authorities to end the unwarranted and arbitrary disciplinary proceedings against Judges Al-Haini and Homani.
The ICJ stressed that members of the judiciary, like other persons, enjoy the rights to freedom of expression, belief, association and assembly in consonance with the dignity of their office and the impartiality and independence of the judiciary.
“This decision should be nullified and the proceedings against the two judges themselves should be terminated,” Boutruche added.
“This case is a stark reminder of the need for the Moroccan authorities to revise the two draft laws, that were adopted last Wednesday by the parliament, to properly strengthen the judicial independence and create a truly independent Conseil Supérieur du Pouvoir Judiciaire in line with international standards,” he concluded.
Contact:
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, tel: +961 70 888 961, e-mail: theo.boutruche@icj.org
Morocco-Al Haini Dismissal-Web Story-2016 (full web story in PDF, Arabic)
Dec 7, 2015 | News
The ICJ today called on the Moroccan authorities to put an immediate end to the disciplinary proceedings initiated against judges Amal Homani and Mohamed Al-Haini.
The two were referred to the High Judicial Council by the Minister of Justice on unfounded allegations of “violating the duty of discretion” and “expressing opinions of a political nature”.
The charges stem from social media comments and media articles written by the judges in which they criticized the government’s Draft Law No. 100.13 on the Conseil Supérieur du Pouvoir Judiciaire and the Draft Law No 106.13 on the Statute for Judges, including provisions that appear designed to maintain executive branch control of the judiciary and the career of judges.
“Instead of subjecting judges who are promoting the rule of law and judicial independence to unjustified and arbitrary disciplinary proceedings, the Moroccan authorities must comply with their obligations under international standards to guarantee, protect and preserve judicial independence,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
“The disciplinary proceedings against judges Amal Homani and Mohamed Al-Haini are clearly without foundation and must be immediately and unconditionally terminated,” he added.
International standards are clear: members of the judiciary are, like other citizens, entitled to freedom of expression, belief, association and assembly.
The exercise of these basic human rights in a manner that preserves the dignity of their office and the impartiality and independence of the judiciary should not constitute a disciplinary offence, the ICJ says.
The social media comments and media articles by judges Amal Homani and Mohamed Al-Haini were clearly within the scope of their rights to freedom of expression, the Geneva-based organization adds.
Under the current legal framework, in particular Law No.1-74-467 of 1974 on the Statute for Judges, the Ministry of Justice has comprehensive and effective control over the entire judiciary, including the High Judicial Council, the career of judges and judicial administration.
Indeed, under the current framework, the Minister of Justice is the Vice-President of the High Judicial Council.
As such the impartiality and fairness of any disciplinary hearings initiated by the Minister of Justice based on statements perceived to criticize the executive branch, must be called into question, the ICJ says.
While provisions of the 2011 Constitution relating to the judiciary constitute an important step towards ending the executive’s control over the judiciary, Moroccan professional associations of judges and civil society organizations have expressed concern that the draft laws perpetuate such control as well as executive interference in judicial matters.
The ICJ has previously called on the Moroccan authorities to revise the two flawed draft laws to ensure their full compliance with international law and standards on judicial independence.
“The Moroccan authorities must end their attacks on judicial independence, including by revising flawed institutional and legal reforms and by ending politicized proceedings against judges,” Benarbia said.
Contact:
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, tel: +961 70 888 961, e-mail: theo.boutruche(a)icj.org
Morocco-Judges Homani-El Haini-News-Press releases-2015-ARA (full press release in PDF, Arabic)
Oct 8, 2015
C. Principal subjects of concern and recommendations Discrimination 13. The Committee remains concerned about: (a) The lack of comprehensive anti-discrimination legislation prohibiting all forms of discrimination affecting enjoyment of the rights enshrined in the...
