Prosecutorial Independence in Light of International Standards “Case of Morocco”
استقلال النيابة العامة على ضوء المعايير الدولية “المغرب أنموذجا”
ERRYHANY Yassine, PhD student, Human Rights Lab, Mohamed 1 – OUJDA University
ياسين الريحاني، طالب باحث بسلك الدكتوراه، مخبر حقوق الإنسان، جامعة محمد الأول بوجدة
مقال منشور في مجلة جيل الأبحاث القانونية المعمقة العدد 49 الصفحة 117.ملخص:
تضطلع النيابة العامة بأدوار مهمة في أنظمة العدالة الجنائية الحديثة ولاسيما في مجال حماية حقوق الإنسان والحريات الأساسية، ولذلك فإن استقلال هذه المؤسسة وحيادها هي شروط مسبقة لضمان فعاليتها ونجاعتها. تسلط هذه الورقة الضوء على مكانة النيابة العامة في النظام القانوني المغربي والوثائق الدولية والإقليمية المتعلقة باستقلالية الادعاء العام، مع التركيز أساسا على التجربة المغربية بخصوص تحقيق استقلال النيابة العامة عن السلطة التنفيذية والنقاش العمومي الذي رافق هذه العملية الانتقالية بين المؤيدين والمعارضين. وقد ركز الباحث بشكل خاص على مكانة النيابة العامة داخل منظومة العدالة بالمغرب قبل وبعد استقلالها عن سلطة وزير العدل، ومدى توافق المقتضيات القانونية التي تنظم عملها مع المعايير الدولية ذات الصلة. وتناقش هذه الورقة كذلك السياق العام لاستقلال النيابة العامة في المغرب بعد اعتماد الدستور الجديد لسنة 2011 والتشريعات الأخرى التي تم تبنيها في هذا الصدد إضافة إلى انعكاسات هذا الأمر على سيادة القانون وحماية حقوق الإنسان.الكلمات المفاتيح: استقلال النيابة العامة، استقلال القضاء، المعايير الدولية، حقوق الإنسان، سيادة القانون.
While the role and status of prosecutors vary greatly among world countries, in all legal traditions prosecutors occupy a key position in the criminal justice system and exercise considerable powers and responsibilities. This paper aims to shed light on the international and regional documents concerning the public prosecution independence, and to examine the general context of the independence of public prosecution in Morocco under the 2011 constitution and other legislations adopted in this regard. Furthermore, this paper seeks to determine the reflections of the prosecutorial independence on the rule of law and human rights protection.
Key words: Public prosecution, judicial independence, international standards, human rights, rule of law.
The greatest value of human life is best represented in the recognition of fundamental rights, and in fully enabling people to enjoy and exercise these rights to the extent that preserves their humanity and respects their civility.
The independence of the judiciary is as much an essential element of constitutional democracy as human rights and the rule of law that the courts are mandated to protect. The United Nations General Assembly recognized this link in the 2004 declaration on the “essential elements of democracy”.
The judicial system in a country is central to the protection of human rights and freedoms. Courts play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection, that perpetrators of human rights violations are brought to justice and that anyone suspected of a criminal offence receives a fair trial according to international standards in accordance and internal legislation in force.
The judicial system is an essential check and balance on the other branches of government, ensuring that laws of the legislative and the acts of the executive comply with laws in force and the rule of law.
Prosecutors play a crucial role in the administration of justice. Respect for human rights and the rule of law presupposes a strong prosecutorial authority in charge of investigating and prosecuting criminal offences with independence and impartiality. Within the prosecuting institution, each prosecutor must be empowered to fulfil his professional duties in an independent, impartial and objective manner.
This paper focuses debate about the organization of prosecution services on purposive reforms that improve the capacity, competence, independence, and accountability of the prosecution as an institution designed to achieve specific social aims. Therefore, I am about examining the prosecutorial independence and its effect on democratic state, through:(a) to show the independence of the prosecution position in the international legal system; (b) to show the general circumstances of the independence of the public prosecution in Morocco, including the legal track, public debate and measures taken; (c) to show the reflection of the prosecutorial independence on democracy building through two main issues : rule of law and human rights protection.
This paper aims to deal with three main issues as follow:
- The position of the Public Prosecution in international documents;
- The path of independence of the Public Prosecution in Morocco and the public debate on its feasibility;
- The implications of the independence of the Public Prosecution Office on human rights and the rule of law.
The present study attempts to conduct a comprehensive examination of the importance of the independence of the public prosecution in the judicial system in accordance with international standards, and to study the extent to which Moroccan legislation regulating the work of the Public Prosecution Office complies with these standards. In addition, this study seeks to show the effects of the independence of the Public Prosecution Office on issues related to human rights and the rule of law.To this end, the main question of this paper is “to what extent prosecutorial independence contributes to the protection of human rights and to the strengthening the rule of law?”
As a type of qualitative methods, the descriptive method, employed in this study, helped in examining f the role of the public prosecution in light of the related international documents and necessary standards to ensure its independence. This method also helped in describing the situation of the public prosecution in Morocco focusing on the long debate on its independence.
- Independence of the public prosecution in international and regional documents
All universal and regional human rights instruments guarantee the right to a fair hearing in civil and criminal proceedings before an independent and impartial court or tribunal, and the purpose of this section is to enumerate documents regulating judicial power independence including public prosecution as an integral part of it.
Before examining the international rules related to public prosecution independence, it should be borne in mind that:
- Under international law, there is a distinction between “hard” law and “soft” law. “Hard” law refers to agreements and rules of international law that impose precise and legally binding obligations on states. “Soft” law refers to international agreements that are not formally binding or impose no clear or precise obligations on state parties, or to interpretive statements on treaties, such as the General Comments issued by the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights, which carry no binding legal force. Relevant sources of international law on judicial independence fall into both categories.
- When addressing public prosecution international legal framework, it is important to distinguish between countries where public prosecution is a part of the executive branch, thus, the core regulating documents confine only to those related to prosecutors, especially The United Nations Guidelines on the Role of Prosecutors as well as some other non-binding provisions. While countries (as Morocco) where the public prosecution is a part of judicial power and prosecutors enjoy a similar status to judges, the regulating documents include those relating to prosecutors, judges and judiciary as an institution.
- Prosecutorial Independence under international instruments
- Universal Declaration of Human Rights (UDHR)
The UDHR is a non-binding declaration of the United Nations General Assembly, although some of its provisions are considered customary international law. The UDHR affirms the right to a fair trial and in a public hearing, before an independent and impartial tribunal, and the guarantee that all are equal before the law and enjoy all rights and freedoms equally.
- International Covenant on Civil and Political Rights
The ICCPR is a multilateral treaty adopted by the UN General Assembly on 16 December 1966. The states party to the Covenant are legally bound by its provisions. The Covenant includes a clear statement of the requirement of judicial independence in the right to fair trial. Article 14 provides in part:
(1) “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…”
- Basic Principles on the Independence of the Judiciary
In 1985, the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary, which were subsequently unanimously endorsed by the General Assembly. These principles can therefore be described as being declaratory of universally accepted views on this matter by the States Members of the United Nations, and they have become an important yardstick in assessing the independence of the Judiciary in the work of international monitoring organs and non-governmental organizations.
The cited principles provided a chapter to deal with the independence of the judiciary. It can be summed up in following:
- The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country, as well as prohibiting any inappropriate or unwarranted interference with the judicial process.
- The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
- UN Guidelines on the Role of Prosecutors
The United Nations Guidelines on the Role of Prosecutors of 1990 are both extremely general and non-binding, but precisely for these reasons they may indicate the broadest range of acceptable practice: practices that unambiguously contradict the Guidelines would probably not describe a meaningfully effective, neutral, and accountable prosecution service, even if, as a formal matter, such practices might not clearly violate any binding legal obligation.
As it is stated in its preamble, these Guidelines have been formulated to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings, should be respected and taken into account by Governments within the framework of their national legislation and practice, and should be brought to the attention of prosecutors, as well as other persons, such as judges, lawyers, members of the executive and the legislature and the public in general.
The UN Guidelines on the Role of Prosecutors emphasized the importance of devoting prosecutorial independence through urging states to ensure that:
- Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice;
- that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability;
- Prosecutors and their families are physically protected when their personal safety is threatened as a result of the discharge of prosecutorial functions;
- Promotion of prosecutors is based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures.
- Bangalore Principles of Judicial Conduct
In July 2006, the United Nations Economic and Social Council adopted a resolution recognizing the Bangalore Principles as representing a further development of, and as being complementary to, the 1985 United Nations Basic Principles on the Independence of the Judiciary. ECOSOC invited States to encourage their judiciaries to take into consideration the said principles when reviewing or developing rules with respect to judicial conduct.
Through its preamble, Bangalore principles cites that the integrity, independence and impartiality of the judiciary are essential prerequisites for the effective protection of human rights, fair trial and economic development.
Moreover, The principles affirm that “judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial”, and “a judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom”.Besides, the first value of the Bangalore Principles stipulated a cardinal rule as it affirmed that the judge “shall be independent in relation to society in general and in relation to the particular parties to a dispute that the judge has to adjudicate”.
- International tribunals’ standards and ICC code of conduct
The prosecutorial standards of the International Criminal Tribunal for the Former Yugoslavia, and the draft code of professional conduct for prosecutors of the International Criminal Court, are only narrowly applicable to the prosecutors of the Tribunal and Court respectively. Yet precisely because they are instruments for international institutions, they likely rely upon and are fully consistent with the practice of the principal legal systems, and thus constitute contemporary expressions of standards that, by their nature and design, represent and are declarative of a shared minimum.
Account had to be taken that guidelines and recommendations, however, do not determine how a particular state should design or reform a system. Reflecting their origins in non-sovereign organizations with multiple state (or private) members of diverse traditions and interests, such documents are highly general, and cannot be quickly or easily converted into specific organizational principles, draft laws, or regulations. They cannot definitively resolve disputes within a country about what would constitute an optimal arrangement; indeed, they cannot authoritatively determine what a good or bad practice is. There is an absence of consensus or determinative authority on the questions of what a prosecution service should do and how it should do it.
- Regional instruments and statements
- Regional instruments
In addition to what we have seen in previous section, regional multilateral treaties -as well- impose legally binding obligations on states parties to the treaty. A number of these treaties include a requirement of judicial independence in the form of a right that mirrors Article 14 of the ICCPR. Examples include following:
- European convention on human rights
The article 6(1) of the European Convention on Human Rights specifies that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
- Inter-American Convention on Human Rights
In the same vein, the European Convention on Human Rights, article 8(1) of the Inter-American Convention on Human Rights -also known as the Pact of San José- provides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature”.
- African charter on human and people’s rights (ACHRP)
The article 7(1) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right that comprises, in particular, “(b) the right to be presumed innocent until proved guilty by a competent court or tribunal”, as well as “(d) the right to be tried within a reasonable time by an impartial court or tribunal”. Furthermore, according to article 26 of the Charter, the States parties “shall have the duty to guarantee the independence of the Courts”. It is the view of the African Commission on Human and Peoples’ Rights that article 7 “should be considered non-derogable” since it provides “minimum protection to citizens”.
- The Arab Charter on Human Rights (ACHR):
Over and above that, the article 13(1) of the ACHR states: “everybody has the right to a fair trial in which sufficient guarantees are ensured, conducted by a competent, independent and impartial ltribunal established by law, in judging the grounds of criminal charges brought against him or in determining his rights and obligations”.
- Council of Europe Recommendations:
The Council of Europe’s Recommendation19/2000 contains 39 recommendations concerning the organization, powers, rights, and duties of public prosecutors. The Recommendations are somewhat more detailed than the UN Guidelines and aim at identifying the major guiding principles that ought to govern public prosecution services given the existence of two separate systems in Europe. The Recommendations naturally relate only to Council members, and are likewise non-binding, but may be considered indicative of possible or advisable practice for other states. The Recommendations also include an extensive explanatory memorandum.
- Regional statement:
A handful of regional organizations have made declarations or statements of judicial independence. These statements are not binding, and thus occupy a similar status to the United Nations Basic Principles and Guidelines. While they reflect the opinions of regional international organizations rather than the opinions of the global international community, they are nevertheless instructive in indicating the universal nature of many principles of judicial independence, as well as assisting in understanding judicial independence in specific regional contexts. Relevant regional statements include:
- The Association of South East Asian Nations Human Rights Declaration: Art. 20(1) guarantees the presumption of innocence and the right to a fair trial before a competent, independent and impartial tribunal.
- The Consultative Council of European Judges (Council of Europe) Magna Carta of Judges;
- Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges;
- African Union Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa;
- The Beijing Statement of Principles of the Independence of the Judiciary in the Law Asia Region (the Law Association for Asia and the Pacific);
- Commonwealth Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence; and
- Inter-American Democratic Charter.
Largely, through enumerating most important documents at both international and regional levels, it seems clear that all documents cited above linked between judicial and prosecutorial independence and the right to a fair trial. This correlation made of public prosecution independence a core guarantee for human rights, fundamental freedoms, and the rule of law. On the other hand, the said documents urging states parties to harmonize its domestic legislation with international standards, and to continue working on the promotion of its judicial system.
II- Public Prosecution in Morocco: The Path toward Independence
In the aftermath of the 2011 constitutional reform, an in-depth debate has initiated within the public, including politicians, academics and observers of the Moroccan judicial scene, on measures to be taken to enforce constitutional provisions concerning judicial independence (including separating the public prosecution from the executive branch).
This section illustrates the transformations of the public prosecution in Morocco since its establishment on August 12, 1913, by the French occupation, and sheds light on the historical development of public prosecution institution by reviewing the legislation and measures taken in this regard.
- The public prosecution before the enactment of law No. 33.17
- Independence of the public prosecution: general context
Since 1956, when the Moroccan kingdom gained its independence, the public prosecution remained under the executive branch control. According to the provisions which were in effect, the public prosecution was overseen by the Minister of Justice; the latter was supervising its work and controlling it in the exercise of its powers related to public proceedings.
After the occurrence of so-called “Arab Spring” social movement in 2011, voices raised for a radical reform of the judiciary including effective measures to combat corruption to ensure the independence, effectiveness and quality of the judicial system.
In response to general will, a new constitution has been adopted, included (for the first time) strengthening the judiciary as an independent power, enshrining the principle of the separation of powers. One of the main constitutional reforms is raising the judiciary to an “independent power” which has been stated in the article 107 of the constitution: “The judicial power is independent of the legislative power and of the executive power”. By contrast, the previous constitution was stipulating that: “The judiciary is independent of the legislative power and of the executive power”.
While the 1996 constitution used the term “judiciary”, The arrangements under the current Constitution for judiciary were a noticeable improvement from previous constitutions, where more powers and guarantees have been afforded to, and the term “judicial power” has been used for the first time.
In addition, the new constitutional document provided further protection for judges through the article 109 which states following:
“Any intervention in the matters submitted to justice is forbidden. In his judicial function, the judge may not receive injunction or instruction, nor be submitted to any pressure whatever.
Each time that he considers that his independence is threatened, the judge must refer [the matter] to the Superior Council of the Judicial Power.
Any breach on the part of the judge of his duties of independence and of impartiality, constitutes a grave professional fault, without prejudice to eventual judicial consequences”.
- Independence of the public prosecution in the public debate
In the past recent years, a wide debate has emerged among academic, intellectual and political communities over the independence of the public prosecution, they divided into two trends: opponents and proponents, each trend has its own considered arguments as described below.
- The Proponent trend:
The proponent of the independence of the public prosecution founded their perspective on recommendations of both the equity and reconciliation commission and the high commission for the national dialogue on the reform of the judiciary system, on judicial independence. They argued that:
- The 2011 constitution guaranteed separation of powers, thus ensures the independence of the judicial power of the executive and legislative powers.
- The separation of powers as a constitutional principle introduced to ensure that the three major institutions of the state namely; the legislative, the executive and the judiciary are not concentrated in any single body whether in functions, personnel or powers.
- The public prosecution is a main body in the Moroccan judicial system; therefore, keeping it under the executive oversight violates the constitutional provisions.
- The opponent trend:
On the other hand, the proponents of such trend consider that:
- The independence of the public prosecution of the executive not subject to oversight functions of parliament. Whereas the minister of justice as a part of the executive power, was accountable to parliament for implementation of criminal justice policy and overseeing prosecutors work. Proponents of this approach argue that question time is necessary instrument accountability, when members of the parliament ask questions of minster of justice, which he is obliged to answer.
- In Moroccan legal system, public prosecution is the institutional body mandated to implement criminal policy, after being transmitted to it by the minister of justice. As a result, the abolition of executive oversight of the public prosecution may make it out of parliamentary oversight.
- Toward a new approach:
When addressing the independence of prosecutors, it is important first to understand the function of the prosecutors in the country under consideration. These functions vary in significant ways in different systems. For example, in countries where the Council comprises both judges and prosecutors, prosecutors are generally treated in the same way as judges in many areas including, for example, in their appointment, evaluation and promotion…
Under Moroccan legal system, the prosecutor is a part of the judiciary; they are magistrates and enjoy a similar status to judges. In this regard, the article 3 of the statute of magistrates states: “the magistrature in the kingdom, regulated by this statute, comprises of one body includes judges and prosecutors who are appointed at courts of first instance, courts of appeal and court of cassation…”. As result, any influence or interference by whatever means, whether in the functions of individual prosecutors or the public prosecution as an institution, is a violation of separation of powers principle and infringing on the independence of the judicial power.
From a special point of view, there are several good and compelling reasons for adopting the first trend:
- As the public prosecution a part of the judicial power (as elaborated in the third section) its independence of the executive branch constitutes a great priority for the full judicial power independence. Under the current constitution which, expressly, enshrined the independence of judicial power, keeping the public prosecution under the control of the minister of justice or any other authority affiliated to the executive branch constitutes a violation of the article 107 of the constitution. In addition, any legislation in this regard will be unconstitutional.
- Under Moroccan judicial system, prosecutors enjoy a similar status to judges notably concerning their independence, their appointment, their advancement, their retirement and their discipline. Furthermore, a prosecutor could turn to a judge on a request submitted to supreme council of judicial power, same goes for judges. In the light of the foregoing, the unity judicial power is obviously incompatible with overseeing public prosecution by the executive branch.
- The independence of the public prosecution of the executive branch does not mean to be unaccountable (further analysis in section III); there are other mechanisms for accountability commensurate with the nature of its functions, such annual reports raised to the king, appeal against its decision and public opinion oversight.
- The opponent trend sees that such step may lead to establish an arrogant and high-handed prosecution. In fact, it is a flawed argument in order to this applies to all institution and organs in the state. Within a state where the rule of law prevails cannot be assumed that institutions conform to a breach of statutes, otherwise the state will transform from a situation of order to chaos.
- Independence and accountability go together; accountability is a prerequisite for independence. Independence is granted by society. A Judiciary that does not want to be accountable to society and has no eye for the needs in society will not gain the trust of society and will endanger its independence in the short or long run. On the other hand, accountability without independence reduces the judiciary to a government agency.
- The legal underpinnings of the prosecutorial Independence
- Constitution of 2011: a solid foundation for public prosecution independence
Before 2011, judiciary was nothing than an institution not unlike others within political system. The article 82 of the 1996 constitution was stating: “The judiciary is independent of the legislative power and of the executive power”. Thus, the judiciary is transformed into a mere job assumed by an employee called a judge, subject to its hierarchy.
According to the mentioned article, judiciary was not considered as a “power”, so that it was early to talk about a real separation of powers, while the constitution was confined to the legislative and executive powers.
In the contrary, by adopting the 2011 constitution, Morocco took an unprecedented step to entrench judicial independence, through raising judiciary to an “independent power”, which is clearly enshrined in the article 107 of the new constitution of 2011: “The judicial power is independent of the legislative power and of the executive power”.
One more constitutional development in this regard, what is stated in the articles 110 and 116 which contain the phrase “hierarchical authority”, which has been invoked for supporting public prosecution independence.
- Recommendations of the High Commission for the National Dialog on the Reform of the Judiciary System
After his 2008 speech, in which it strongly called for a wide dialog for a judicial system reform plan, the Moroccan king renewed his call for a profound reform in his speech marking the Revolution of the King and the People anniversary on august 20, 2009. This speech set a broader view of the main axes of such reform.
On May 8, 2012 in the Casablanca Royal Palace, King Mohamed VI, installed the High Commission for the National Dialog for a general and depth reform of the Judicial System, the commission is the body of 40 members, chaired by the minister of justice, adopted several mechanisms to organize the national dialog: internal meetings, national and regional conferences, working groups, field visits…
In its final report, the High Commission for the National Dialog on the Reform of the Judiciary System, made the recommendations which formed the basis for the Charter of the Judiciary System Reform.
Concerning public prosecution, the charter states inter alia, the following:
- Assigning chair position of the public prosecution to the General Prosecutor of the King at the Court of Cassation;
- The Minister of Justice notifies the requirements of criminal justice policy, in writing, to the General Prosecutor of the King at the Court of Cassation;
- The General Prosecutor of the King at the Court of Cassation, shall notify legal written instructions to the General Prosecutor of the king in different courts;
- The General Prosecutor of the King at the Court of Cassation, shall inform the Justice Minister of the actions and measures taken regarding criminal justice policy;
- The General Prosecutor of the king to the Court of Cassation shall submit an annual report to the High Council of the judiciary Power on the implementation of the criminal policy and the work of the General Prosecutor Office. This report shall be the subject of discussion within the Council.
- Organic law no. 100.13
After the organic law N.100.13 on Superior Council of Judicial Power, entered into force on April 14, 2016, the Ministry of Justice replaced by the SCJP concerning the management of judicial system.
Under the said law, the SCJP sees to the application of the guarantees accorded to the magistrates, notably concerning their independence, their appointment, their advancement, their retirement and their discipline.
The article 110 of the cited law embodies the independence of public prosecution of the minister of justice by stating:
“The Council receives reports on judiciary and judicial system, notably reports of:
- The prosecutor-general of the king at the Court of Cassation, as president of public prosecution, on the implementation of criminal justice policy and public prosecution progress, before it has been presented and discussed before the two committees of legislation in parliament”.
- Organic law n. 106.13concerning the Statute of Magistrates :
First, it is important to point out that the organic law N. 106.13 concerning the statute of magistrates was a subject of the examination of the constitutional council (as described below) before publishing on the official journal.
The article 25 of the organic law N. 106.13 concerning the statute of magistrates, states: “The prosecution magistrates are under the authority and control of the General Prosecutor of the King at the Court of Cassation, and hierarchic authority”. This article was mainstay of public prosecution independence, especially after the constitutional council decision was issued, which has definitely settled the matter of prosecutorial dependence upon the ministry of justice. The council pointed out that presidency of the public prosecution, as a part of the judicial power, can only be assigned to who is affiliated to such power.
- The decision of the Constitutional Council992/2016:
As the competent body to rule on constitutionality of laws, on March 15, 2016 the constitutional council promulgated its decision on the constitutionality of the organic law N.106.13, which was being referred by government in conformity with the applicable legislation.
In its commentary on the article 25 of the organic law N.106.13 which states following: “The prosecution magistrates are under the authority and control of the General Prosecutor of the King at the Court of Cassation, and hierarchic authority”. The constitutional council concluded that:
- Matters concerning chairing public prosecution can only be determined within the framework of the provisions of the Constitution, especially as it concerns the status of prosecutors and their affiliation or non-affiliation to the judicial power.
- The 2011 constitution judicialized prosecutors, it regarded them magistrates enjoying a similar status to judges notably concerning their independence, their appointment, their advancement, their retirement and their discipline.
- Whereas independence from the legislative authority and the executive authority is a “prejudice condition for belonging to the judicial power, which prevents those who do not belong to the judicial power from undertaking judicial functions, rather chairing a core body in it”.
- As the prosecutorial function is judicial in nature (according to the constitutional provisions), the presidency of the public prosecution, as a part of the judicial power, can only be assigned to who is affiliating to such power.
- Act No. 33.17 concerning the transfer of competencies of the governmental authority charged to justice to the general prosecutor of the king at the court of cassation:
On the basis of articles 110 and 116 of the constitution, provisions of organic law related to the supreme council of judicial power and articles 110 and 117 of the organic law on the statute of magistrates, the law 33.17 concerning the transfer of competencies of the governmental authority charged to justice to the general prosecutor of the king at the court of cassation as a president of public prosecution, had been adopted on august 30, 2017.
Consequently, this shift was the right move towards a full harmonization between constitutional provisions and statutes concerning judicial power, it is a practical expression of the principle of separation of powers set out in the 2011 constitution. Thus, the public prosecution is no longer affiliated with ministry of justice.
The main outlines the law referred to above:
- Assigning the presidency of the public prosecution had been to the general prosecutor of the king at the court of cassation.
- The general prosecutor of the king at the court of cassation exercises the competencies which were formerly assigned to the minister of justice, in particular, implementation of the criminal justice policy, overseeing prosecuting magistrates…
- The public prosecution became an independent body of the executive power.
- The state shall put at disposal of the presidency of public prosecution necessary resources for its functions (movables, real estate…), as well as administrative, financial and technical structures needed to its work.
- Specifying the organization of the presidency of public prosecution.
The entering into force of the said law was followed by a power handover ceremony, where the minister of justice assigned the presidency of the public prosecution to the general prosecutor of the king at the court of cassation.
III. Prosecutorial Independence Effects on Human Rights and Rule of Law
The independence of the judiciary is as much an essential element of constitutional democracy as human rights and the rule of law that the courts are mandated to protect.Thus, the independence of the public prosecution gives concrete expression to two essential elements of democracy – as it has been stated in several international and regional documents- namely the rule of law and the protection of human rights.
- Independence of public prosecution for strengthening the rule of law
The rule of law as a principle of governance refers to the situation where all people, institutions including the state itself are accountable and equal before the law under the rule of independent judiciary.
The independence of the Judiciary as a whole and the independence of judges and prosecutors play a critical role in strengthening the rule of law. This crucial role has been highlighted by all inter-governmental human rights systems. The United Nations General Assembly has repeatedly stated that “the rule of law and the proper administration of justice […] play a central role in the promotion and protection of human rights” and that “the administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to democratization processes and sustainable development”.
By the same token, the Special Rapporteur on the independence of judges and lawyers affirmed that “The rule of law cannot be upheld, nor can justice be effectively administered, if justice officials cannot act independently, impartially, objectively and with integrity, autonomy and neutrality in the performance of such a sensitive function that comes with a high level of responsibility”.
A legal system based on respect for the Rule of Law needs – besides the guarantees awarded to judges – strong, independent and impartial prosecutors willing to open an investigation and to prosecute suspected crimes and suspects, regardless of the status or the influence in society of the suspects. The authority that starts the application of the law in criminal justice, on behalf of the society and the public interest should enjoy a certain type of independence, similar to that of the judges. In this regard, International documents underline that in every system the prosecutor is expected to act in a judicial manner and the qualities required of a prosecutor are similar to those of a judge.
As result, in several judiciaries, a strong and independent prosecution service has proven to be the appropriate measure for the fight against corruption and for strengthening the Rule of Law.
Eventually, it is an essential task of a democratic State based on the rule of law to guarantee that fundamental rights and freedoms as well as equality before the law are fully respected, in accordance, in particular, with the constitutional provisions concerning human right protection as well as the other statutes related to human right and fundamental freedoms. At the same time, it is important to ensure security and justice in society by assuring effective measures in respect of criminal conduct. Security in society must also be guaranteed in a democratic state by an effective enforcement of penalties imposed for criminal conduct.
- Independence of public prosecution as a prerequisite for human rights protection
The prosecutors are public authorities whose object is to protect the public interest, to ensure the application of the law where its violation attracts a criminal sanction. Wherefore, prosecutors must take into account respect for human rights and procedural guarantees. They should defend the general interests of the society even against members of the executive or the legislature. Prosecutors thereby play a critical role in protecting human rights.
The separations of the state’s powers and the right to a fair trial are inconceivable without the independence of judicial power including prosecutor, especially under legal systems based on total separation of executive power. In order to achieve the independence of prosecutors, states require measures to allow prosecutors to carry out their main activity – namely to prosecute – protected from interference by the legislature, executive power or any other influence.
The Inter-American Court of Human Rights has said that “guaranteeing rights involves the existence of suitable legal means to define and protect them, with intervention by a competent, independent, and impartial judicial body, which must strictly adhere to the law, where the scope of the regulated authority of discretionary powers will be set in accordance with criteria of opportunity, legitimacy, and rationality”. Similarly, the Inter-American Commission on Human Rights has pointed out that “the independence of the judiciary is an essential requisite for the practical observance of human rights”.The Commission also considered that “the right to a fair trial is one of the fundamental pillars of a democratic society. This right is a basic guarantee of respect for the other rights recognized in the Convention, because it limits abuse of power by the State”.
Furthermore, the Special Rapporteur on the Independence of Judges and Lawyers in his 2020 report asserted “One of the priorities in building institutions and protecting human rights is therefore to strengthen the independence of the judiciary and ensure that it can resist attempts by political authorities or corrupt forces to exert control over it”.
One of the controversial issues on the prosecutorial independence namely discretion power, in particular the discretion to decide to press charges or not, has long been recognized by legal scholars as a quite powerful feature of a state’s prosecutorial organ, a power that comes with risks of abuse. On the one hand, a biased use of this discretion can negatively impact defendant’s and victims’ rights. A consistent refusal or neglect to prosecute certain type of cases can create or sustain a policy of impunity. For example, a lack of independence in a state’s prosecutorial organ has already been recognized as a factor contributing to impunity in corruption cases.accordingly, states must provide an accurate check on prosecutorial discretion power through judicial review of prosecutorial decisions.
Conclusion and findings
Looking beyond the controversy over the advisability of the step of the prosecutorial independence, for several reasons, it is crucial to focus on the consolidation process of the prosecutorial independence. First, prosecutorial independence certainly does not mean lack of accountability to the laws passed by legislature. Clearly, during trial proceedings prosecutors are not free agents, as they are under oversight of the hierarchic authority, and their decisions are subject to court review and scrutiny. Moreover, according to Moroccan criminal procedure law, charges against anaccused may recharacterized by the court owing to its discretion power. Second, a prosecution service is an institutional actor embedded in a political process -it is not an isolated, insulated element removed from politics- and should be evaluated by its de facto relationship with other political and social actors. Thus, a substantive assessment to check to what extent the public prosecution (and judicial power as a whole) independent is must take into account the generic nature of the political system, political will of the government and the state rank in the democracy index.
- Fahed Abul-Ethem, The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective, Fordham International Law Journal, Volume 26, Issue 3 2002.
- Veronica Michel, The Role of Prosecutorial Independence and Prosecutorial Accountability in Domestic Human Rights Trials, Article in Journal of Human Rights, January 2017.
- RIOS-FIGUEROA, Julio. (2006) Judicial Independence: Definition, Measurement, and Its Effects on Corruption. An Analysis of Latin America, PhD Dissertation, Department of Political Science, New York University.
- Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. P.119 (Professional Training Series No. 9), by OHRCH in cooperation with the international bar association.
- SUJIT CHOUDHRY, International standards for the Independence of the Judiciary (January 2013).
- Access to Justice: The Prosecution Service, United Nations Office on Drugs and Crime, Vienna, 2006.
- League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), entered into force March 15, 2008.
- Report of the Special Rapporteur on the independence of judges and lawyers, adopted by the General Assembly March 23, 2020. P.2. further infos on https://undocs.org/en/A/HRC/44/47
- The Situation of Human Rights in Cuba: Seventh Report, OAS document OEA/Ser.L/V/II.61, doc. 29, rev. 1, 1983.
- Report Nº 78/02, Case 11.335, Guy Malary v. Haiti, 27 December 2002.
- Legal status and human rights of the child, Advisory Opinion of the Inter-American Court of Human Rights
(IACtHR) OC-17/2002, 28 August 2002.
- Opinion No.12 (2009) of the Consultative Council of European Judges (CCJE) and opinion No.4 (2009) of the Consultative Council of European Prosecutors (CCPE) to the attention of the Committee of Ministers of the Council of Europe on the Relations Between Judges and Prosecutors in a Democratic Society.
- The Constitutional Council Decision N.992/2016 on March 15, 2016, on the constitutionality of the organic law N.106.13 concerning the status of magistrates.
- Council of Europe Committee of Ministers Recommendation 19/2000 [Rec. 2000/19] of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system.
- The United Nations Social and Economic Council, by resolution 2006/ 23.
- ACHPR, Civil Liberties Organization, Legal Defense Centre, Legal Defense and Assistance Project v. Nigeria, Communication No. 218/98, decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, p. 3 of the text published on http://www1.umn.edu/humanrts/africa/comcases/218-98.html;
- Moroccan constitution of the 1996.
- Moroccan constitution of the 2011.
- Organic Law N.100.13 on Superior Council of Judicial Power.
- organic law N. 106.13 concerning the statute of magistrates
- Act No. 33.17 concerning the transfer of competencies of the governmental authority charged to justice to the general prosecutor of the king at the court of cassation.
- The Charter of the Judiciary System Reform (July 2013): The seventh sub-goal – Public prosecutor’s independence from executive power.
- Universal declaration of human rights.
- European Convention on Human Rights.
- the Inter-American Convention on Human Rights.
- Arab Charter on Human Rights.
- Basic Principles on the Independence of the Judiciary.
- United Nations Guidelines on the Role of Prosecutors.
- Bangalore Principles of Judicial Conduct.
- Draft Code of Professional Conduct for Prosecutors of the International Criminal Court, at http://www.iap.nl.com/icc_guidelines.html [ICC Draft Code]; see also Draft Regulations of the Office of the Prosecutor, at http://www.icc-cpi.int/library/organs/otp/draft_regulations.pdf
- عز الدين المحمدي، سيادة القانون والعدالة والاعتدال طريقنا للسلام والتنمية والاستقرار، بحث منشور على شبكة النبأ المعلوماتية بتاريخ 14-11-2018. انظر : https://m.annabaa.org/arabic/studies/17244، اطلع عليه بتاريخ 20/12/2020.
- ورقة عمل المركز العربي للبحوث القانونية والقضائية حول “الآلية التي تقترحونها والواجب إتباعها لإعادة ودعم الثقة بالقضاء” المقدمة إلى المؤتمر السادس والعشرين لمديري المعاهد القضائية في الدول العربية بيروت 26 – 28/03/2018.
- رشيد القديري، استقلالية النيابة العامة عن وزارة العدل «دعامة أساسية لتكريس مبدأ الاستقلالية القضائية»، منشور على الموقع الالكتروني بتاريخ 07 غشت 2019، اطلع عليه بتاريخ 21/06/2020 على الساعة الرابعة مساء :http://article19.ma
- عرض حول استقلال النيابة العامة، من انجاز مجموعة من الباحثين، منشور على الموقع الالكتروني بتاريخ 20 فبراير 2020، اطلع عليه بتاريخ 20/06/2020 على الساعة الثامنة مساء.https://www.elkanounia.com/2020/02/istiklaliat-niaba-alaama.html
- مداخلة عبدالله بو وان ورئيس فريق العدالة والتنمية بمجلس النواب، أثناء اجتماع للجنة العدل والتشريع وحقوق الإنساني الأربعاء 7 يناير 2015.
Fahed Abul-Ethem, The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective, Fordham International Law Journal, Volume 26, Issue 3 2002 Article 8, P 761.
 Adopted 20 December 2004, the resolution was officially published in 2005.
Adopted by the United Nations General Assembly by Resolution 217 at its third session on 10 December 1948.
 Article 10 of the UDHR.
 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. entry into force 23 March 1976.
 Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. P.119 (Professional Training Series No. 9), by OHRCH in cooperation with the international bar association.
 Para.1, chapter 1 of the Basic Principles on the Independence of the Judiciary.
 Para.4, of chapter of the Basic Principles on the Independence of the Judiciary.
 Para.2, of chapter 1 of the Basic Principles on the Independence of the Judiciary.
United Nations Guidelines on the Role of Prosecutors (adopted by Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Aug. 27-Sept. 7, 1990), U.N.
The preamble of the UN Guidelines on the Role of Prosecutors.
 Principle 2(a) of The UN Guidelines on the Role of Prosecutors.
 Principle 4 of The UN Guidelines on the Role of Prosecutors.
 Principle 5 of The UN Guidelines on the Role of Prosecutors.
 Principle 7 of The UN Guidelines on the Role of Prosecutors.
 The United Nations Social and Economic Council, by resolution 2006/ 23.
 Preamble of Bangalore Principles of Judicial Conduct
 Value 1 of The Bangalore Principles of Judicial Conduct.
 Value 1, para. 1.3 of The Bangalore Principles of Judicial Conduct.
Value 1, para. 1.2 of The Bangalore Principles of Judicial Conduct.
 Registrar of the International Criminal Tribunal for the Former Yugoslavia, Standards of Professional Conduct for Prosecution Counsel.
 Draft Code of Professional Conduct for Prosecutors of the International Criminal Court, at http://www.iap.nl.com/icc_guidelines.html [ICC Draft Code]; see also Draft Regulations of the Office of the Prosecutor, at http://www.icc-cpi.int/library/organs/otp/draft_regulations.pdf
 Cf. Access to Justice: The Prosecution Service, United Nations Office on Drugs and Crime, Vienna,
2006, at 1.
 It was opened for signature in Rome on 4 November 1950 and came into force in 1953.
 The article 6(1) of the European Convention on Human Rights.
 Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.
 article 8(1) of the Inter-American Convention on Human Rights
 Adopted in Nairobi on June 28, 1981, came into force on October 21, 1986
 The article 7(1) of the African Charter on Human and Peoples.
 ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Communication No. 218/98, decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, p. 3 of the text published on http://www1.umn.edu/humanrts/africa/comcases/218-98.html; accessed on 12/08/2020 at 17h00.
 League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), entered into force March 15, 2008.
 the article 13(1) of the ACHR.
 Council of Europe Committee of Ministers Recommendation 19/2000 [Rec. 2000/19] of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system
(adopted Oct. 6, 2000).
 Adopted by the Heads of State of the Association of South East Asian States, Phnom Penh, 18 November 2012.
 Adopted by the Council of Europe Consultative Council of European Judges, Strasbourg, 17 November 2010.
 Adopted by the Committee of Ministers on 13 October 1994 at the 518th meeting of the Ministers’ Deputies
 Adopted as part of the African Commission’s activity report at 2nd Summit and meeting of heads of state of the African Union, Maputo, 4-12 July 2003.
 Adopted by the Conference of Chief Justices of Asia and the Pacific Resources, Beijing, 19 August 1995.
 Adopted on 19 June 1998 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association.
 Adopted by the OAS General Assembly at its special session held in Lima, Peru, 11 September, 2001.
 The article 82 of the 1996th constitution states “The judiciary is independent of the legislative power and of the executive power”.
 The article 107 of the constitution of 2011.
 The article 109 of the constitution of 2011.
رشيد القديري، استقلالية النيابة العامة عن وزارة العدل «دعامة أساسية لتكريس مبدأ الاستقلالية القضائية»، منشور على الموقع الالكتروني بتاريخ 07 غشت 2019، اطلع عليه بتاريخ 21/06/2020 على الساعة الرابعة مساء :http://article19.ma
عرض حول استقلال النيابة العامة، من انجاز مجموعة من الباحثين، منشور على الموقع الالكتروني بتاريخ 20 فبراير 2020، اطلع عليه بتاريخ 20/06/2020 على الساعة الثامنة مساء.https://www.elkanounia.com/2020/02/istiklaliat-niaba-alaama.html
مداخلة عبد الله بووانو رئيس فريق العدالة والتنمية بمجلس النواب، أثناء اجتماع للجنة العدل والتشريع وحقوق الانسان يوم الأربعاء 7 يناير 2015.
 As in Bulgaria and France, where prosecutors and judges are considered members of the Magistracy.
 Article 3 of the statute of magistrates
 The article 82 of the Moroccan 1996 constitution.
ورقة عمل المركز العربي للبحوث القانونية والقضائية حول “الآلية التي تقترحونها والواجب إتباعها لإعادة ودعم الثقة بالقضاء” المقدمة إلى المؤتمر السادس والعشرين لمديري المعاهد القضائية في الدول العربية بيروت 26 – 28/03/2018، ص 1.
 Paragraph II of article 110 of the 2011 constitution states: “The prosecuting magistrates are held to the application of the law and must conform to written instructions, conforming to the law, emanating from the hierarchical authority.”
 Last paragraph of article 116 states: “In the matters concerning the prosecuting magistrates, the Superior Council of the Judicial Power takes into consideration the reports of evaluation established by the hierarchical authority to which they relate.”
 See the royal speech on July 30, 2008 marking The Throne Day.
 In this regard, see the royal speech on August 20, 2009 marking the Revolution of the King and the People anniversary.
 The High Commission for the National Dialog created an enlarged Commission on national dialog composed of 175 members, later expanded to 190 representing 14 categories among those concerned by the dialog.
 In July, 2013 the commission adopted the Charter of the Judiciary System Reform.
The Charter of the Judiciary System Reform (July, 2013): The seventh sub-goal – Public prosecutor’s independence from executive power, P 64.
Hereinafter referred to as SCJP.
 According to the article 113 of the 2011 constitution.
 Article 110 of the Organic Law N.100.13 on Superior Council of Judicial Power.
 Entered into force on April 14, 2016, official journal N.6456, P.3160.
Article 25 of the organic law N. 106.13.
 It replaced by the constitutional court on August 13, 2014 pursuant to the article 130 of the 2011 constitution.
 The Constitutional Council Decision N.992/2016 on March 15, 2016, on the constitutionality of the organic law N.106.13 concerning the status of magistrates.
 Article 1 of Act No. 33.17
 Article 2 of Act No. 33.17
 Article 6 of Act No. 33.17
 SUJIT CHOUDHRY, International standards for the Independence of the Judiciary (January 2013) P.2.
 عز الدين المحمدي، سيادة القانون والعدالة والاعتدال طريقنا للسلام والتنمية والاستقرار، بحث منشور على شبكة النبأ المعلوماتية بتاريخ 14-11-2018. ينظر : https://m.annabaa.org/arabic/studies/17244اطلع عليه بتاريخ 20/12/2020.
 See, for example, resolutions 50/181 of 22 December 1995 and 48/137 of 20 December 1993, entitled
“Human rights in the administration of justice”.
 Venice Commission CDL-AD(2010)040.
 Opinion No.12 (2009) of the Consultative Council of European Judges (CCJE) and opinion No.4 (2009) of the Consultative Council of European Prosecutors (CCPE) to the attention of the Committee of Ministers of the Council of Europe on the Relations Between Judges and Prosecutors in a Democratic Society.
 For example, if they are involved in organized crime or other criminal actions.
 Legal status and human rights of the child, Advisory Opinion of the Inter-American Court of Human Rights
(IACtHR) OC-17/2002, 28 August 2002, para. 120.
 The Situation of Human Rights in Cuba: Seventh Report, OAS document OEA/Ser.L/V/II.61, doc. 29, rev. 1,
1983, Chapter IV, para. 2
 Report Nº 78/02, Case 11.335, Guy Malary v. Haiti, 27 December 2002, para 53.
Veronica Michel, The Role of Prosecutorial Independence and Prosecutorial Accountability in Domestic Human Rights Trials, Article in Journal of Human Rights, January 2017. P.195.
 RIOS-FIGUEROA, Julio. (2006) Judicial Independence: Definition, Measurement, and Its Effects on Corruption. An Analysis of Latin America, PhD Dissertation, Department of Political Science, New York University.