Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
In 2003, in its third periodic report to the UN Committee against Torture, Morocco stated:
20. In spite of the absence of a precise definition of torture, there exist various legislative provisions prohibiting torture.
21. The Draft submitted by the Ministry of Justice in the context of reform of the Criminal Code is an important step in the development of the judicial system and reform of the system of justice. It aims at remedying shortcomings and supporting change so as to consolidate the rule of law and human rights and harmonize domestic legislation with the international instruments Morocco has ratified. Torture will be given a wider definition, in keeping with article 1 of the Convention against Torture.
In 2009, in its fourth periodic report to the Committee against Torture, Morocco stated:
Under Moroccan law no orders from a higher authority, exceptional circumstances, state of war or the threat of war, threat to national security, internal political instability or any emergency situation could be used as justification for the use of torture or any other form of cruel, inhuman or degrading treatment.
With regard to the definition of torture, Morocco stated:
16. The amendment of article 1-231 of the Criminal Code by Law No. 04.43 of 14 February 2006 is in response to the Committee’s recommendation (CAT/C/CR/31/2). Paragraph 6(a) of the Law defines torture as any “act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.
17. The definition in article 1-231 of the Moroccan Criminal Code is an attempt at aligning the text with that of the Convention [against Torture] through the inclusion of all the elements, human, material or physical, constituting an act of torture.
18. It is worth noting here that the new draft Criminal Code expanded the text of the definition to include all acts of torture committed by all persons and not public officials only.
19. The human element of a crime of torture manifests itself in the capacity of the persons perpetrating such acts or crimes. The Convention against Torture stipulates that such acts must be committed or instigated by a public official or any other person acting upon the instruction of a public official. This element has been emphasised by the Moroccan legislator, who went further in expanding the notion of a public official committing a crime of torture to include all persons acting in an official capacity.
20. The material element of crimes of torture in Moroccan law coincides largely with the definition used in the Convention against Torture. The similarities relate to the nature or the purpose of committing the act. The Moroccan definition considers as torture any act causing severe pain or suffering whether inflicted physically directly on the victim through violent acts such as burning or electrocuting, indirectly through negligence or depriving the victim of basic requirements aimed at protecting his dignity or through psychological pressure intended to terrorise or instil fear in the victim.
21. For an act of torture to be committed, it suffices to inflict mental or physical pain on the person directly or on a third party to obtain information, statement or confession to punish the person for acts committed or allegedly committed.