Udlændinge- og Integrationsudvalget 2016-17
UUI Alm.del Bilag 148
Offentligt
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4/2017
Morocco
Risk of Double Jeopardy in Morocco
Report based on interviews in Morocco 9 to 18 October 2016
Copenhagen, March 2017
Danish Immigration Service
Ryesgade 53
2100 Copenhagen Ø
Phone: 00 45 35 36 66 00
Web: www.newtodenmark.dk
E-mail: [email protected]
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List of content
DISCLAIMER ................................................................................................................................................................ 3
METHODOLOGY.......................................................................................................................................................... 4
1.
2.
3.
4.
L
EGISLATION ON THE PRINCIPLE OF DOUBLE JEOPARDY
......................................................................................................... 6
R
ISK OF DOUBLE JEOPARDY
............................................................................................................................................ 6
M
ONITORING
.............................................................................................................................................................. 7
C
ORRUPTION
.............................................................................................................................................................. 7
APPENDIX A: MEETING NOTES IN ENGLISH ................................................................................................................. 8
1.
2.
3.
4.
M
INISTRY OF
F
OREIGN
A
FFAIRS AND
C
OOPERATION
........................................................................................................... 8
T
HE
M
INISTRY OF
J
USTICE AND
L
IBERTIES
......................................................................................................................... 8
E
MBASSY OF
S
PAIN
, M
OROCCO
...................................................................................................................................... 9
A
WELL INFORMED LEGAL ADVISER IN
R
ABAT
................................................................................................................... 10
APPENDIX B: MEETING NOTES IN FRENCH .................................................................................................................12
1.
2.
M
INISTERES DES
A
FFAIRES
E
TRANGERES ET DE LA
C
OOPERATION
......................................................................................... 12
M
INISTERE DE
J
USTICE ET DES
L
IBERTES DU
M
AROC
.......................................................................................................... 12
APPENDIX C: SOURCES CONSULTED ...........................................................................................................................14
APPENDIX D: TERMS OF REFERENCE ..........................................................................................................................15
APPENDIX E: MOROCCAN CODE OF PENAL PROCEDURE ............................................................................................16
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Disclaimer
This report was written according to the European Asylum Support Office (EASO) Country of Origin
Information report methodology.
1
The report is based on approved notes from meetings with carefully
selected sources. Statements from all sources are used in the report, and all statements are referenced.
This report is not, and does not purport to be, a detailed or comprehensive survey of all aspects of the
issues addressed in the report. It should be weighed against other available country of origin information
on the risk of double jeopardy in Morocco. The report does not include policy recommendations or
analysis. The information in the report does not necessarily reflect the opinion of the Danish Immigration
Service (DIS).
Furthermore, this report is not conclusive as to the determination or merit of any particular claim to
refugee status or asylum. Terminology used should not be regarded as indicative of a particular legal
position.
1
European Union: European Asylum Support Office (EASO), EASO Country of Origin Information report methodology, 10 July 2012.
Available at
http://www.refworld.org/docid/4ffc33d32.html
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Methodology
This report is based on interviews with sources in Morocco conducted by the Country of Origin Information
Division, Danish Immigration Service (DIS) in Rabat, from 9 - 18 October 2016. The purpose of the mission
was to collect up to date information on issues recurring in cases regarding Moroccan citizens in Denmark
with regard to the situation of unaccompanied minors, the situation of LGBT people and double jeopardy.
The findings regarding unaccompanied minors and Lesbian, Gay, Bisexual and Transgender (LGBT) people
are reported in separate reports.
The present report focuses on the risk of double jeopardy in Morocco, including the legislative framework.
The terms of reference for the mission were drawn up by DIS in consultation with the Danish Refugee
Appeals Board as well as a Danish advisory group on Country of Origin Information (COI).
2
The terms of
reference are included at Appendix D to this report.
In the process of compiling the report, the delegation interviewed four sources, comprising representatives
from the Moroccan authorities, a liaison judge and a legal adviser. The Danish Embassy in Rabat provided
valuable assistance in identifying some of the interlocutors relevant to the terms of reference. The Danish
Embassy also provided logistical assistance during the mission. The sources interviewed were selected by
the delegation based on their expertise, merit and experience relevant to the mission.
The sources consulted during the mission to Morocco are listed in Appendix C. The interviews were
conducted in either French or English according to the convenience of the interlocutors. Meeting notes,
originally recorded in French, have been translated into English. All the notes of meetings are provided in
English in Appendix A. Notes for those interviews which were originally conducted in French are provided in
Appendix B.
The interlocutors were asked how they wished to be introduced and quoted, and all sources are introduced
and quoted according to their own wishes. Three sources are referred to by their name and/or the name of
their organisation; in accordance with their own request on this matter. One source, the representative
from the Ministry of Justice and Liberties, requested not to be mentioned by name and one source, a well
informed legal adviser in Rabat, asked to be anonymous.
The sources consulted were informed about the purpose of the mission and the fact that their statements
would be included in a report, to be made publically available.
The meeting notes were validated by the sources. All notes were forwarded to the interlocutors for their
approval and amendment, allowing the opportunity to offer corrections or make comment on their
statements. All sources but the Ministry of Foreign Affairs and Cooperation approved their statements. This
source was contacted by email and informed that the delegation would include the note in the report if no
2
The group consists of Danish Refugee Council, Amnesty International in Denmark, Danish Institute for Human Rights, Dignity,
representatives of two Christian organisations (Danish European Mission and Open Doors), the National Commissioner of Police
and the Danish Bar and Law Society (representing asylum lawyers).
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response was received by the deadline. The delegation never received any response.
The report is a synthesis of the sources' statements and does not include all details from the meeting notes.
In the report, care has been taken to present the views of the interlocutors as accurately and transparently
as possible, and reference is made by number to the specific paragraphs in the meeting notes, in foot notes
in the report. All sources’ approved statements are found in their full extent in Appendix A and B of this
report.
The report was finalised in February 2017.
The report is available on the websites of DIS,
www.newtodenmark.dk
and thus is available to all
stakeholders in the refugee status determination process as well as to the general public.
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1. Legislation on the principle of double jeopardy
In the national legislation the principle of double jeopardy (non
bis in idem/ne bis in idem)
is laid down in
the Moroccan Code of Penal Procedure, Act no. 22-01 enacted by dahir [decree] no. 1.02.155 on 3
rd
October 2002
3
, Sections 704 to 749 in the Chapter about international cooperation.
4
An anonymous well
informed legal adviser in Rabat and the Liaison Judge at the Embassy of Spain both stated that the principal
of
non bis in idem
is stipulated in the Code of Penal Procedure, article 707.
5
International legislation ratified by Morocco, according to which no one can be prosecuted or punished
twice for the same violation in the country of origin or abroad (double jeopardy), is stipulated in the
Palermo Convention.
6
2. Risk of double jeopardy
All sources confirmed that Morocco respects the principle of
non bis in idem.
7
The well informed legal
adviser noted, however, that it may be that Morocco has information about other matters that would allow
a prosecution. The same source further elaborated that if a terrorist was expelled from a foreign country,
he would be monitored closely by the Moroccan security service. He would not be prosecuted and
punished for terrorism. However, the Moroccan authorities might know of other violations committed by
the person in question for which he would be sentenced.
8
Concerning extradited Moroccan citizens who
were convicted of terrorism it is in no way a rule that they will be prosecuted and convicted for other
violations.
9
According to the Ministry of Justice and Liberties, the consequence for a Moroccan who has committed an
offence abroad, but who has not been punished and who subsequently returns to Morocco is that he or she
will be punished pursuant to the Code of Penal Procedure.
10
The consequence for a Moroccan who has been punished for an offence abroad, but who has not served
his or her sentence and who returns to Morocco is that he or she will be punished pursuant to the Code of
Penal Procedure.
11
The Liaison Judge at the Embassy of Spain added that in case a sentence was given but
not served entirely, the person can be sentenced in Morocco.
12
3
Arabic version of the Code of Penal Procedure available on the website of the Ministry of Justice and Liberties:
http://adala.justice.gov.ma/production/html/Ar/38578.htm
There is no official version in French of the Moroccan Code of Penal Procedure on the internet. The Ministry of Justice
and Liberties has shared copies of the relevant sections in a French version of the Administration of Criminal Justice
Act by a prosecutor in Morocco. See Appendix E.
4
Ministry of Justice and Liberties: 4
5
Embassy of Spain: 10, A well informed legal adviser in Rabat: 25. See article in Appendix E.
6
A well informed legal adviser in Rabat: 27, Ministry if Justice and Liberties: 4, Embassy of Spain: 11
7
Ministry of Foreign Affairs and Cooperation: 3, Ministry if Justice and Liberties: 7, Embassy of Spain: 12, A well
informed legal adviser in Rabat: 16
8
A well informed legal adviser in Rabat: 16-17
9
A well informed legal adviser in Rabat: 18
10
Ministry if Justice and Liberties: 5
11
Ministry if Justice and Liberties: 6, Embassy of Spain: 12
12
Embassy of Spain: 12
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No examples of violation of the principle of non bis in idem were known to the Liaison Judge at the
Embassy of Spain.
13
3. Monitoring
According to the Ministry of Justice and Liberties, in cases where a Moroccan national has been sentenced
for an offence related to terrorism abroad and who is expelled to Morocco for that reason, the person in
question will be monitored by the relevant authorities.
14
A well informed legal adviser commented that few things remain undisclosed in Morocco as the security
service is highly efficient. Many ordinary people, including the neighbourhood guards (concierges
du
quartier)
provide information to the security service about their neighbours on a voluntary basis. However,
there is no ‘surveillance psychosis’.
15
4. Corruption
According to a well informed legal adviser in Rabat, the level of corruption is high in Morocco. This
phenomenon has been admitted by the authorities and it has been addressed by His Majesty King
Mohammed VI. According to unofficial sources approximately 60 percent of the Moroccan magistrates
would be suspected to be corrupt. According to the country official sources 30 percent of the Moroccan
police force is suspected to be involved in corruptive practices.
16
13
14
Embassy of Spain: 7
Ministry if Justice and Liberties: 8
15
A well informed legal adviser in Rabat: 22
16
A well informed legal adviser in Rabat: 20
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Appendix A: Meeting notes in English
1. Ministry of Foreign Affairs and Cooperation
Interview with Mustapha El Bouazaoui, Consular and Social Affairs
10 October 2016, Rabat
1. The conversation with Mustapha El Bouazaoui began with a survey of the socio-political situation in
the Moroccan society. The Director of the Department of Consular and Social Affairs gave a
statement about the three issues submitted by the Danish Mission in the following order: the
situation of unaccompanied minors, the situation of LGBT persons and double punishment. He
emphasized the need for subsequent consulting the ministries and associations specializing in each
field in order to provide further information.
The “non bis in idem” doctrine
2. According to the criminal procedure principle of “non bis in idem”, nobody may be prosecuted or
convicted twice for the same offence whether the offence was committed in Morocco or abroad.
3. The non bis in idem principle is recognized by the Moroccan Government.
2. The Ministry of Justice and Liberties
Interview with a representative from the Department of Criminal Cases and Pardon
Rabat, 17 October 2016
The principle of
non bis in idem [double jeopardy]
4. In the national legislation the principle of
non bis in idem
is laid down in the Moroccan Code of
Penal Procedure, Act no. 22-01 enacted by dahir [decree] no. 1.02.155 on 3
rd
October 2002
17
,
Sections 704 to 749 in the Chapter about international cooperation. As to international legislation,
Morocco has signed bilateral conventions with other countries. Morocco and Denmark has not
signed any bilateral convention, however, an extradition may take place through Interpol. Morocco
has ratified the Palermo Convention, which among other issues deals with the principle of
non bis
in idem.
5. The consequence for a Moroccan who has committed an offence abroad, but who has not been
punished and who subsequently returns to Morocco is that he or she will be punished pursuant to
the Code of Penal Procedure.
17
Arabic version of the Code of Penal Procedure available on the website of the Ministry of Justice and Liberties:
http://adala.justice.gov.ma/production/html/Ar/38578.htm
There is no official version in French of the Moroccan Code of Penal Procedure on the internet. The Ministry of Justice
and Liberties has shared copies of the relevant sections in a French version of the Administration of Criminal Justice
Act by a prosecutor in Morocco. See Appendix E.
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6. The consequence for a Moroccan who has been punished for an offence abroad, but who has not
served his or her sentence and who returns to Morocco is that he or she will be punished pursuant
to the Code of Penal Procedure.
7. Morocco respects the principle of
non bis in idem.
8. In cases where a Moroccan national has been sentenced for an offence related to terrorism abroad
and who is expelled to Morocco for that reason, the person in question will be surveilled by the
relevant authorities.
3. Embassy of Spain, Morocco
Interview with Luis Francisco de Jorge Mesas, Adviser on Legal Cooperation, Liaison Judge at the Embassy
of Spain
Rabat, 13 October 2016
The principal of
ne bis in idem
9. The rule of
ne bis in idem
is a juridical principal in the criminal law according to which no one can be
prosecuted or punished twice for the same violation in the country of origin or abroad.
10. In the Moroccan national legislation the principal of
ne bis in idem
is stipulated in the
Code
Procedure Pénale
18
, article 707. Reference is made to other relevant articles in the Code de
Procedure Penal, articles 708, 709 and 711.
11. The principal of
ne bis in idem
is stipulated in bilateral agreements as well as in the Palermo
Convention and conventions of terrorism. Morocco ratified these conventions.
12. A Moroccan citizen who committed a crime abroad and who has served the given sentence would
not be prosecuted in Morocco. In case the person did not serve the sentence or did not serve it
entirely, the person can be sentenced in Morocco.
13. No examples on cases of violation of the principle of
ne bis in idem
were known to the source.
14. With regard to prevention of terrorism the cooperation between Spain and Morocco works well. In
cases related to prevention of terrorism it is often seen that terror cells in for instance Spain are
suspected to be connected to terror cells in Morocco. The two countries make joint operations in
which the persons taken under arrest will be prosecuted in the country were they were arrested.
Case files of the defendants are exchanged between the two countries.
18
Dahir 1.02.255 du 25 rajab 1423 (3 octobre 2002), portant promulgation de la Loi nº 22.01 formant le code de
Procédure Pénale
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4. A well informed legal adviser in Rabat
Rabat, 14 October 2016
The principal of
ne bis in idem
15. The rule of
ne bis in idem
is a juridical principal in the criminal law according to which no one can be
prosecuted or punished twice for the same violation in the country of origin or abroad.
16. Morocco respects the principal of
ne bis in idem.
However, it may be that Morocco has information
about other matters that would allow a prosecution, in this particularly efficient operation of the
intelligence service in Morocco.
17. If a terrorist was expelled from a foreign country, he would be monitored closely by the Moroccan
security service. He would not be prosecuted and punished for terrorism. However, the Moroccan
authorities might know of other violations committed by the person in question for which he would
be sentenced.
18. The well informed legal advisor added that concerning extradited Moroccan citizens who were
convicted of terrorism it is in no way a rule that they will be prosecuted and convicted for other
violations.
Education and salary of judges in Morocco
19. A Moroccan judge must at first have a three year diploma from a faculty of law. Secondly, they
must pass a contest that takes two years to prepare for in order to become a judge. The earning of
a young Moroccan magistrate is approximately 900€ per month. A senior magistrate end of career
earns 3,500-4,000€ per month. There is no formal specialization for judges working with cases of
minors.
20. The level of corruption is high in Morocco. This phenomenon has been admitted by the authorities
and it has been addressed by His Majesty King Mohammed VI. According to unofficial sources
approximately 60 percent of the magistrates would be suspected to be corrupt. According to the
country official sources 30 percent of the police force is suspected to be involved in corruptive
practices.
21. With regard to terror cases, it is likely that a defendant will be judged based on confessions or on
remorse. Some defendants will get the choice between repenting the violation and get
approximately four years of prison time or get a prison sentence of for instance 12 years.
Level of surveillance of people in general in Morocco
22. Few things remain undisclosed in Morocco as the security service is highly efficient. Many ordinary
people, including the neighbourhood guards (concierges
du quartier)
provide information to the
security service about their neighbours on a voluntary basis. However, there is no ‘surveillance
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psychosis’. The interlocutor added that there is a certain level of humanity in Morocco which is
expressed in the fact that the level of torture is lower than under the previous regime.
23. The well informed legal adviser said that today in Morocco, there is a real preoccupation to detect
and to prevent any violations of human rights. The interlocutor added that the human rights
situation is not perfect and there are probably still violations. However, the interlocutor could not
point out any concrete example of such violations.
Ne bis in idem: legislation
24. The Moroccan national legislation according to which no one can be prosecuted or punished twice
for the same violation in the country of origin or abroad (ne
bis in idem)
is stipulated in the
Code de
Procedure Pénale,
article 707.
25. Article 707 reads as follows
“any infringement qualified as a crime under Moroccan law perpetrated by a Moroccan citizen
abroad can be prosecuted and sentenced in Morocco. Therefore two conditions must exist:
There must be a foreign prosecution file or a foreign sentence.
The person has not
undergone the judgement”
26. In any case, the foreign country must officially notify the prosecution file and/or the sentence to
the Moroccan authorities. This must be done according to bilateral treaty.
27. International legislation ratified by Morocco according to which no one can be prosecuted or
punished twice for the same violation in the country of origin or abroad (ne
bis in idem)
is
stipulated in the Palermo Convention.
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Appendix B: Meeting notes in French
1. Ministères des Affaires Etrangères et de la Coopération
Entretien avec Mustapha El Bouazaoui, Affaires Consulaires et Sociales
10 octobre 2016, Rabat
1. L’entretien avec Mustapha El Baouazaoui a commencé avec un tour d’horizon de la situation socio-
politique de la société marocaine. Le Directeur des Affaires Consulaires et Sociales s’est exprimé sur
les trois thèmes de la mission danoise dans l’ordre suivant : la situation des mineurs non-
accompagnés, la situation des personne d’orientation LGBT et la double peine. Il a souligné le
besoin de consulter par la suite les ministères et les associations spécialisées dans chaque domaine
pour plus de renseignements.
‘Non bis in idem’
2. Selon le principe de la procédure pénale de ‘non bis idem’ nul ne peut être poursuivi ou puni
pénalement deux fois à raison des mêmes faits, que les faits soient commis au Maroc ou à
l’étranger
3. Le principe de non bis in idem est reconnu par le Gouvernement du Maroc.
2. Ministère de Justice et des Libertés du Maroc
Entretien avec en représentant des Affaires Pénales et des Grâces
Rabat, le 17 octobre 2016
Le principe de
non bis in idem
4. Dans la législation nationale le principe de
non bis in idem
est stipulé dans le Code de Procédure
Pénale Marocain, la loi 22-01 promulguée par le dahir no 1.02.155 du 3 octobre 2002
19
de l’article
704 à 749, dans le chapitre sur coopération internationale. En ce qui concerne la législation
internationale, Maroc a signé des conventions bilatérales avec d’autres pays. Entre le Maroc et le
Danemark il n’y a pas de convention bilatérale mais une extradition peut se faire à travers Interpol.
Le Maroc a ratifié la Convention de Palerme qui traite parmi d’autres sujets du principe
non bis in
idem.
5. La conséquence pour un marocain qui a commis un crime à l’étranger mais qui n’était pas puni et
qui rentre par la suite au Maroc est qu’il va être puni selon le Code de procédure pénale.
19
Il n’existe pas une version officielle en français du Code de Procédure Pénale Marocain accessible sur l’internet. Le
Ministère de Justice et des Libertés a fait part des copies des articles pertinentes d’une version en français du Code de
Procédure Pénale faite par un procureur au Maroc.
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6. La conséquence pour un marocain qui a été puni pour un crime à l’étranger mais qui n’a pas purgé
sa peine et qui rentre au Maroc est qu’il va être puni selon le Code de procédure pénale.
7. Le Maroc respecte le principe de
non bis in idem.
8. Au cas où un citoyen marocain qui a été condamné pour des crimes liées au terrorisme à l’étranger
et qui pour cette raison sera expulsé au Maroc, ce citoyen va être surveillé par l’autorité
compétente à cela.
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Appendix C: Sources consulted
1. Ministry of Foreign Affairs and Cooperation, Mustapha El Bouazaoui, Consular and Social Affairs
2. The Ministry of Justice and Liberties, a representative from the Department of Criminal Cases and
Pardon
3. Embassy of Spain, Morocco, Luis Francisco de Jorge Mesas, Adviser on Legal Cooperation, Liaison
Judge at the Embassy of Spain
4. A well informed legal adviser in Rabat
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Appendix D: Terms of Reference
DOUBLE JEOPARDY
a. Does Moroccan law allow for double jeopardy?
i.
Will a Moroccan citizen who has committed a criminal act abroad and has been
subject to punishment abroad, be sentenced to punishment for the same criminal
act once he or she returns to Morocco?
ii.
Do the same rules apply, regardless of the nature of the crime?
iii.
Are there any recent examples of the application of double jeopardy in Morocco?
iv.
In case a Moroccan citizen who was sentenced abroad of terror related crime and
thereafter expelled to Morocco, to what extent will the authorities monitor the
person in question?
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Appendix E: Excerpt of Moroccan Code of Penal Procedure
Moroccan Code of Penal Procedure Act no. 22-01 enacted by dahir [decree] no. 1.02.155 on 3
rd
October
2002, articles 707 to 711.
There is no official version in French of the Moroccan Code of Penal Procedure on the internet. The
Ministry of Justice and Liberties has shared copies of the relevant sections in a French version of the
Administration of Criminal Justice Act by a prosecutor in Morocco. Arabic version of the Code of Penal
Procedure available on the website of the Ministry of Justice and Liberties:
http://adala.justice.gov.ma/production/html/Ar/38578.htm
French version
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English translation:
Code of Criminal Procedure
Chapter II
Competence in relation to certain offences committed outside the Kingdom
Article 707.
Any acts classified under Moroccan law as a crime committed outside the Kingdom of Morocco
by a Moroccan may be prosecuted and tried in Morocco.
However, the prosecution or trial may only take place after the person, who has been charged, has
returned to Morocco and does not substantiate that the sentence has acquired the force of res judicata
abroad, and, in the case of a conviction, that the person has served his or her sentence or the sentence is
statute-barred or the person has been granted a pardon.
Article 708.
Any acts classified under Moroccan law as an offence committed outside the Kingdom of
Morocco by a Moroccan may be prosecuted and tried in Morocco.
The prosecution or trial may only take place under conditions laid down in Article 707(2).
Moreover, in case of an offence committed against a private person, the prosecution may only take place
at the instance of the Prosecution based on a complaint lodged by the injured party or information by the
authorities of the country where the offence in question has been committed.
Article 709.
The prosecution or trial may take place in cases laid down in articles 707 and 708 above and in
article 711(2) below even when the person who has been charged has only acquired Moroccan citizenship
after having committed the crime or the offence.
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Article 710.
Any aliens who have been found guilty outside the territory of the Kingdom of Morocco in an
act classified as a crime pursuant to Moroccan law as a principal, an accessory or an accomplice may be
prosecuted and tried pursuant to the provisions of Moroccan law when the victim of this crime is a
Moroccan national.
However, the prosecution or trial of the person who is charged cannot take place when the person
substantiates that the sentence has acquired the force of res judicata abroad, and, in the case of a
conviction, that the person has served his or her sentence, or the sentence is statute-barred.
Article 711.
Any alien will be tried pursuant to the provisions of Moroccan law provided that he or she has
been found guilty outside the territory of the Kingdom as a principal, an accessory or an accomplice either
of a crime or an offence against the security of the State, i.e. counterfeiting of the seals of the State or
counterfeiting or falsification of national coins or bank notes which are legal tender in Morocco, or a crime
against Moroccan employees or headquarters of diplomatic or consular corps and public offices.
When a Moroccan has been found guilty outside the territory of the Kingdom as a principal, an accessory or
an accomplice of one of the infringements of the law above, he or she will be punished as if the
infringement of the law has been committed in Morocco.
Any accessory or accomplice who has been found guilty outside the territory of Morocco of one of the
infringements of the law laid down in subsection 1 will be prosecuted as an accomplice pursuant to the
above-mentioned subsection.
However, the prosecution or trial cannot take place when the person substantiates that the sentence has
acquired the force of res judicata abroad for the same act, and, in the case of a conviction, that the person
has served his or her sentence, or the sentence is statute-barred.
18