STUDY ON THE CODE OF PENAL PROCEDURE

In order to finalize its study on the Penal Code, the Advisory Council on Human Rights is conducting a study on the current Code of Penal Procedure, of 3 October 2002. It relies on a group of experts and specialists.

The Council is very concerned by the Code of Penal Procedure, due to its place within the legal system and the fact that it is closely linked to freedoms and human rights. It is necessary to include, within its provisions, guarantees of liberty, presumption of innocence and fair trial. The Council made various contributions to improve this Code, so that it would be up to the challenges and choices made by the Kingdom of Morocco, and comply with the international human rights law. Such ‘new’ code would strengthen the ongoing legal reforms. To conduct the study, the Council was open to the proposals of civil society and human rights and political stakeholders. It monitors issues and difficulties raised by the implementation of some laws.

The study aims to analyze the current Code of Penal Procedure and its compliance with the international human rights standards. It studies the possibilities of its harmonization with those standards and makes relevant proposals and recommendations.

The Code of Penal Procedure is important. It regulates the power of the State and its institutions in the areas of detention, prosecution, trial and punishment. It lays down the rules that should be applied and respected in all judicial procedures to be followed when a crime is committed. It dictates how police, rural police (gendarmerie) and judges should react and work. It lays down rights and responsibilities assigned to them from the observation of the crime to the preliminary inquiry, to investigation, trial and execution of the relevant penalty. However, applying this Code by these bodies may provide conditions conducive to human rights abuses and violations. State’s powers and prerogatives in this field, should, therefore, be well defined and delimitated to protect human rights and strengthen their guarantees.

The study is based on the principles of human rights as set in international human rights conventions, national and international jurisprudence, fiqh, the constitution’s preamble, the various reports of the Council and the final report of the Equity and Reconciliation Commission. It identifies and studies provisions that are somehow contradictory to human rights (provisions relative, for example, to the procedures of detention, arrest, preliminary inquiry, investigation, trial, juvenile justice ... or to concepts such as the presumption of innocence, independence of judiciary...). It also sheds light on some legal gaps, such as the non-criminalization of some violations and abuses. Such gaps may leave the door open to some interpretations that contradict the principles of human rights. The study does not fail to highlight that the Code includes provisions that go hand in hand with human rights, like the principles laid down in its preamble. It analyses, reviews and makes proposals about the provisions of the Code and all its procedures.

The study makes conclusions and practical proposals on almost all articles. These proposals are linked to the reformulation, revision, addition or deletion.

The study has been entrusted to renowned experts, and was conducted and presented in three stages.
The Council held several meetings to present and discuss this study to finalize and enrich its provisions.