Death Penalty in the Moroccan Law

Sanction is a societal need defined by society in every environment according to its needs, taking into account some particular data. Hence, throughout time, the death penalty has been linked to the idea of sanction within the scope of the existing penal policy. This penalty had never raised jurisprudence- or philosophy-related problems, when the penal thought addressed the criminal act, except that the change in this regard consisting in giving interest to criminals makes it possible to think of humanizing and mitigating the penalty and making it a means for reform.

Following this change, the question of the utility of the death penalty turned round to the trends of thought which addressed, through research and analysis, the philosophy of sanction, especially when the death penalty was linked to psychological, social, civilizational and religious dimensions.

How does the Moroccan legislator deal with the issue?

In its penal law, the Moroccan legislator deems the death penalty as principal. Moreover, it places it atop all sanctions. Despite this classification, and unless there is a contrary legal text, the Moroccan legislator gives the tribunal the jurisdiction over making the accused enjoy mitigating circumstances and applying life sentence or twenty to thirty years in prison, in the case whereby the death penalty is proved severe compared to the acts perpetrated by the accused or to the degree of his/her criminality.

The Moroccan legislator provides also for legal alternatives that help the tribunal to replace or commute the death penalty, as the case may be. The death penalty may be commuted to a sentence of 10 years to 15 years in prison in the cases of crimes perpetrated by juvenile offenders.

In parallel, in order to enhance some procedural safeguards concomitant of death penalty sentence, investigation is made compulsory in crimes where this penalty is applied.

Criminal acts punished by the death penalty

There are three cases where the death penalty is applied. The first case includes crimes of terror, crimes inflicting the right to life and the physical security of person, the use of torture means, perpetration of barbaric criminal acts, acts of arson and destruction, misdemeanors and crimes against the external and interior security of the state and crimes committed by civil servants against the public order.

The second case contains the crimes specified by the law on preventing crimes against the health of the nation, which stipulates that “Will be sentenced to the death penalty those who, deliberately, made or held for business purposes, distributed, put for sale or sold products or food meant for human being and endangering the public health.

Finally, there is a set of crimes stipulated by the military justice law for military crimes.

Implementation of the death penalty in the Moroccan law

The Moroccan legislator dedicated special provisions to the execution of the death penalty. These provisions are found in the Penal Procedure Law and the implementing decree of the law regulating the penitentiary institutions. Generally, we can distinguish between two phases:

1- Pre-execution phase

Given the seriousness of the death penalty, the public prosecutor is obliged, by law, to inform the minister of justice, in his capacity as the one who is responsible for the penal policy, of any ruling on the death penalty once rendered, because it is about a group of convicts who are subject to special rules specified by the implementing decree of the law regulating the penitentiary institutions. The prisoners under the death penalty can be transferred immediately after pronouncing the ruling to other prisons where there is a wing for this group of prisoners. Also, they are subject to solitary confinement as far as possible. They shall be given special attention making it possible to explore their personality, follow up their psychological status and maintain their equilibrium to avoid any attempt of prison break, suicide or offence against a third party. Prisoners under the death penalty are allowed to do some works after consultation of a doctor and a social assistant. Also, they are allowed to receive their relatives and contact their lawyers freely in a hall meant for this purpose. However, it is forbidden in all cases to inform the convict of the decision of rejecting his pardon request because of the impact that this decision might have on his personality.

2- Post-execution phase

The Moroccan legislator makes the execution dependant on the decision of rejecting the pardon request. For women who are proved pregnant, the execution shall take place two years after childbirth. The death penalty shall be executed by bullets secretly and upon a decision by the minister of justice, through the military authority in the penitentiary institution where the convict is under arrest, unless it is decided the other way. The minister of justice may make the execution public or take place in another place. The death penalty shall be executed according to special legal formalities, ended with drafting the minutes, a copy of which shall be hung for 24 hours on the gate of the penitentiary institution where the execution takes place or on the gate of the municipality, if the death penalty takes place outside the prison.

The body of the convict shall be delivered to his family upon their request provided that its burial is not made public; otherwise the competent authorities take charge of burying him/her upon a request by the public prosecutor.

Conclusions

The Moroccan penal legislation still keeps the death penalty and adopts a legal policy aiming to reduce it or restrict its sentence and execution. Also, the royal pardon plays an important role in rebalancing the punitive policy, which makes it possible to conclude that there is an evolution towards abolishing the death penalty, through gradual commutation of the penalties pronounced, and freezing the execution. Meanwhile, the death penalty has raised today questions that reach their apogee at the international level, following the increasing terror crimes and organized crimes.

If the current situation is not consistent with the legal abolition of this penalty, the real abolition will be achieved in the future, with changing circumstances and public opinion. It is worth mentioning that the death penalty should be discussed in the light of the values, realities and particularities of each society.

This point, examined by the Moroccan legislation, does not discard a strong will that leads to a serene thinking on the death penalty. This is reflected by many indicators, including:

- The death penalty has never applied in Morocco since 1993;

- The convicts under the death penalty are frequently granted royal pardons;

- The number of the convicts under the death penalty does not exceed 125;

- Some judicial meditation in pronouncing this penalty;

- The death penalty is at the heart of the intellectual concerns of stakeholders in the penal policy.

To conclude, it is worth mentioning that everybody is convinced of the need to review the hierarchy and the classification of crimes and misdemeanors so as to adapt them to the current penal realities and in order to have a productive penalty. This entails a review of the realities of the death penalty so as not necessarily to abolish it, but to take into account all the intellectual and human rights trends in such a way as to serve the supreme interest of the country.

By Mr Mohamed Benalilou: Judge, head of the Special Penal Affairs Division at the Ministry of Justice.