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Criminal prosecution: investigation, public oral trial and appeal • Revista Brasileira de Direito Processual Penal 11 (1) • Jan-Apr 2025 • https://doi.org/10.22197/rbdpp.v11i1.1109 linkcopy

Open-access Public prosecutor’s independence in Morocco: in a difficult search for a judicial authority

Independência do Ministério Público no Marrocos: na difícil busca de uma autoridade judicial

AuthorshipSCIMAGO INSTITUTIONS RANKINGS

Abstract

Over the last decade, the Kingdom of Morocco has opted for the independence of the Public Prosecutor’s Office from the executive, severing any link that might have existed between it and the Ministry of Justice. This choice was not straightforward to make. Today, while the change is a step in the right direction and may dispel the suspicions that some people like to harbour about the links between the public prosecutor and executive institution, the new status is nonetheless the subject of several controversies and concerns. In this article, the author highlights the experience of the independence of the Public Prosecutor’s Office in Morocco and the efforts to intensify the independence of the judicial institution. By studying the challenges and opportunities raised by the new status of the Public Prosecutor’s Office, the author tries to prove that the choice based on the limitation of independence to the absolute separation of the Public Prosecutor’s Office from the Ministry of Justice remains a narrow approach to independence and pleads for a general renewal of the status and missions of the Public Prosecutor’s Office.

Keywords
independence; impartiality; public prosecutor; judicial authority; judicial police

Resumo

Durante a última década, o Reino de Marrocos optou pela independência do Ministério Público em relação ao poder executivo, cortando qualquer ligação que pudesse existir entre este e o Ministério da Justiça. Esta opção não foi fácil de adotar. Hoje, embora a mudança seja um passo na direção certa e possa dissipar as suspeitas que algumas pessoas gostam de alimentar sobre as ligações entre a instituição do Ministério Público e o executivo, o novo estatuto é, no entanto, objeto de várias controvérsias e preocupações. No presente artigo, o autor procura destacar a experiência da independência do Ministério Público no Marrocos e os esforços para intensificar a independência da instituição. Ao estudar os desafios e as oportunidades suscitadas pelo novo estatuto do Ministério Público, o autor tenta provar que a escolha baseada na limitação da independência à separação absoluta do Ministério Público do Ministério da Justiça continua a ser uma abordagem estreita da independência e apela a uma renovação geral do estatuto e das missões do Ministério Público.

Palavras-chave
independência; imparcialidade; Ministério Público; autoridade judiciária; polícia judiciária

Summary: Introduction; 1. Public prosecution: second facet of judicial authority; 2. Public prosecutors: between external independence and internal dependence; 2.1. An authority with absolute external independence; 2.2. An authority with rigid internal dependence; 1. Public prosecutors’ independence in Morocco: shortcomings and proposals for change; 1.1. Public prosecutors, an impartial judicial authority?; 1.2. A public prosecutor independent of the executive, what about the parties?; 3.3. Police and public prosecutor relationship: what impact on judicial independence?; Conclusions; References.

Introduction

At United Nations congresses on the prevention of crime and the treatment of offenders, the status of the public prosecutor has always been the subject of discussions and recommendations, as an institution essential to the balance of any criminal trial. Given this institution’s decisive interest and crucial role in the repression of crime, many democratic countries have undertaken structural and recurrent reforms of its functions and role.

In this context, in early 2013, the Kingdom of Morocco launched the first steps of a project promising to bring about a comprehensive reform of the justice system. This project has continued throughout 2018 and has given rise to demands and lively political and doctrinal debates. Historically, under the executive’s control, the public prosecutor’s status and independence from the Ministry of Justice have received particular attention because of the great importance of an independent and impartial judicial institution in a democratic society.

In light of the historical relationship with the French Judiciary2 and the opposition to it,3 the decision to make the Public Prosecutor’s Office independent was not easy to adopt. A body dependent on the executive for some and independent of the Judiciary for others, the actors in the debate - politicians, magistrates, and law professors - set out their legal arguments to defend their positions.

At present, the independence of the Public Prosecutor’s Office is guaranteed by the state, enshrined in the Constitution and respected by all government institutions. In addition, the Moroccan state ensures all the structural and functional guarantees against political or other interference in the Public Prosecutor’s Office. However, while this development is a step in the right direction and may dispel the suspicions that some people like to harbour about the links between the public prosecutor and the executive, the new status is nonetheless the subject of several controversies and concerns.

This article examines the challenges and opportunities raised by the new constitutional status of the Moroccan public prosecutor as an independent judicial authority and argues for a general renewal of its status and missions. To this end, the first part will be devoted to highlighting the status of the public prosecutor as an integral part of the Judiciary under the principle of the unity of the Judiciary. While the Public Prosecutor’s Office is an independent part of the Judiciary, the second part attempts to clarify that the independence of its members is different from that of judges. An authority with absolute external independence, the Public Prosecutor’s Office is subject to a particular hierarchical organisation, characterised by rigid internal dependence. Certainly, the approach of limiting independence to the separation of the prosecution service from the Ministry of Justice remains a very narrow approach to independence. For this reason, the third part will address the significant concerns raised by the constitutional and functional status of prosecutors. By forming part of the independent Judiciary and combining the powers of a prosecuting party with the exercise of judicial functions, the question of the impartiality of the Public Prosecutor’s Office and its independence from the parties to the proceedings needs to be explored in depth. Moreover, the nature of the relationship between the Judiciary and the judicial police is always a source of debate about its impact not only on the independence of the Public Prosecutor’s Office but also on the independence of the Judiciary as a whole.

1. Public prosecution: second facet of judicial authority

Moroccan judicial institutions are based on the principle of unity.4 The Judiciary comprises judges and prosecutors, who form the second level of the body. According to the Moroccan Constitutional Council (MCC), “the Constitution grants the status of “magistrate” to judges and prosecutors, which means that they all belong to the Judiciary - a unified power - and are thus protected by the principle of independence associated with that power.”5

Public Prosecutor’s Office members enjoy judicial independence as part of the unified Judiciary. They benefit from the same guarantees as judges,6 which the Supreme Council of the Judiciary is keen to respect.7 In addition, they have taken the same oath and share the same judicial quality and legal nature, which has long been exclusive to the judges. In the view of the MCC, the new Constitution of 20118 “differentiates between judges and prosecutors only in certain aspects inherent, like their work,”9 which consists of defending the general interests of society while respecting individual freedoms.

As previously established, public prosecutors and judges form the same judicial body.10 This desire for unity stems from the nature of prosecutors’ functions, which are based on defending the interests of society while respecting individual freedoms.11 However, while both types of magistrate are subject to an independent and unified judiciary, the independence of public prosecutors differs from that established for the rest of the Judiciary.12

In fact, unlike judges, public prosecutors are subject to special status. The Constitution provides for establishing a hierarchical authority to which public prosecutors are subordinate,13 and they must comply with its instructions.14 The second paragraph of Article 110 of the Constitution states that “the law binds public prosecutors and must comply with written instructions, under the law, issued by the hierarchical authority to which they report.” In addition, Article 116 of the Constitution15 also makes a distinction between the tasks of the High Council of the Judiciary (HCJ), which relate to the management of the professional careers of public prosecutors, including their appointment, the rules of disciplinary procedure, their promotion and their retirement; and the management of their judicial tasks, which is entrusted to a hierarchical authority outside the Council. In this respect, Article 110 of the same Organic Law states that the King’s Attorney General to the Court of Cassation, in his capacity as head of the Public Prosecution Service, shall submit a report to the HCJ on the implementation of criminal policy and the functioning of the Public Prosecution Service. However, Article 25 of Organic Law No. 106-13 on the SM states that “public prosecutors are placed under the authority and control of the King’s Prosecutor General at the Court of Cassation and their hierarchical superiors.”

In addition, to promote equality, consistency and efficiency in implementing criminal policy, Public Prosecutor’s Office members are subject to a specific hierarchical organisation. In performing their duties, they form a pyramidal organisation, a hierarchical judicial body independent, indivisible, irresponsible and irrecusable. In other words, by remaining bound by the application of the law, Public Prosecutor’s Office members are independent in their decisions. At the same time, they must follow the written instructions under the law issued by their hierarchical superiors.16 While judges are only required to apply the law, Public Prosecutor’s Office members are obliged to comply with written instructions by the law from their hierarchical authority.

Moreover, the President of the Public Prosecutor’s Office may issue instructions to members of the Public Prosecutor’s Office, which must be in writing and comply with the law. These instructions, which may be general or relate to individual cases, are given in the form of notes or periodic circulars sent to all members of the Public Prosecutor’s Office or members of the public prosecutor’s office responsible for certain types of cases. These instructions may apply to specific cases.17

In summary, the Constitution has ensured, on the one hand, that the unity of the Public Prosecutor’s Office is maintained and that its members belong to a pyramidal hierarchical authority. On the other hand, it has ensured the independence of magistrates, empowering them not to comply with unwritten or unlawful instructions from the President of the Public Prosecutor’s Office.18

2. Public prosecutors: between external independence and internal dependence

2.1. An authority with absolute external independence

In the years leading up to 2018, the Public Prosecutor’s Office remained under the supervision of the Minister of Justice, who exercised real powers concerning the direction of the prosecutors’ judicial functions and the management of their professional status. In fact, at that time, as Vice-Chairman of the former HCJ, the Ministry of Justice had the power to propose, appoint or transfer public prosecutors and could arrest a magistrate and refer him to the disciplinary board or appoint a rapporteur in disciplinary proceedings and impose sanctions at first instance.

This situation has provoked strong criticism at both national and international level because it violates the principle of the independence of the Judiciary stipulated by the Constitution and as a universal principle enshrined in the human rights covenants and conventions ratified by the Moroccan State.19

With the advent of the 2011 Constitution, Morocco enshrined the independence of the Judiciary, which became a constitutional authority independent of the legislative and executive powers. The HCJ20 is responsible for protecting the independence of judges and prosecutors.21

In this respect, the 2011 Constitution incorporated the Public Prosecutor’s Office into the independent judiciary.22 However, it also provides for an independent authority, the HCJ, to which the magistrates of the Public Prosecutor’s Office are subject. Article 110 states that, “magistrates of the Public Prosecutor’s Office must apply the law. They must also comply with the written legal instructions issued by the authority to which they report.”23 Consequently, it is clear that the Public Prosecutor’s Office is submitted to an authority other than the HCJ and that the latter is obliged to take into account the assessment reports prepared by this authority concerning the magistrates of the Public Prosecutor’s Office when managing their professional status. In assessing the constitutionality of Article 25 of Organic Law 106-13 on the SM, the MCC considered that, “the Constitution has granted the status of “magistrate” to both judges and magistrates of the Public Prosecutor’s Office, which places them all within the judiciary, which is a unified authority, and they are therefore subject to the independence inherent in that authority.”24

Furthermore, although the Constitution does not explicitly name the authority to which the public prosecutors belong, Organic Law No. 100.13 on the HCJ does and entrusts it to the King’s Procurator General at the Court of Cassation as Head of the Public Prosecution Service.25 Thus, Article 110 provides that the HCJ shall receive reports from the Public Prosecutor at the Court of Cassation as Head of the Public Prosecution Service. Article 25 of Organic Law No. 106.13 on the SM stipulates that “magistrates in the Public Prosecutor’s Office are placed under the authority and control of the public prosecutor at the Court of Cassation and their hierarchical superiors.”26

As a result of these requirements, Act No. 33-17,27 promulgated on 30 August 2017, on the transfer of powers from the government authority in charge of justice to the King’s Prosecutor General at the Court of Cassation in his capacity as Head of the Public Prosecutor’s Office was promulgated enacting rules for organising the presidency of the Public Prosecutor’s Office, which granted the President of the Public Prosecutor’s Office the powers stipulated under the Constitution and the two aforementioned regulatory acts.28

Moreover, the independence of public prosecutors is different from that of other judges. The MCC referred to this situation when it stated that the Constitution “made no distinction between judges and magistrates of the public prosecutor’s office other than in respect of certain aspects relating to the nature of their function...”29 However, the Constitution has added an essential characteristic to public prosecutors compatible with their membership in the presidential hierarchy by making them subject to written legal instructions from their presidents, unlike judges, who are subject only to the law.30

It is clear that the legislator has established the total independence of the Public Prosecutor’s Office from the legislative and executive authorities. The Constitution, which elevates the Judiciary, of which the Public Prosecutor’s Office is an integral part, to the rank of constitutional authority, confers on this authority the function of managing its affairs and powers in complete independence from Parliament and the Government, which cannot interfere in the affairs of the Judiciary, which is not only considered distinct from the two aforementioned authorities but is also independent of them.31 On the other hand, if the separation of powers does not prevent overlapping relationships authorised by different constitutions, allowing one authority to dissolve the other or withdraw confidence from it, then independence prevents the existence of such relationships. The constitution, therefore, endeavours to preserve the independence of the judiciary so that it is not influenced by other authorities that primarily implement political agendas.32

Nevertheless, according to the MCC “the constitutional principle of the correlation between responsibility and accountability cannot be applied to the judicial authority, which is independent of other authorities, in the same way, and with the same tools as in other areas, given the nature of the judicial authority, its independence, its operating mechanisms and the methods established to correct its errors.”33 In this respect, the independence of the Public Prosecutor’s Office does not mean that it is exempt from control and responsibility; on the contrary, it is subject to the control of the Judiciary regarding the decisions it takes, as well as to the control of the HCJ, to which periodic reports are submitted regarding the implementation of criminal policy and the conduct of the Public Prosecutor’s Office. Similarly, the President of the Public Prosecutor’s Office remains accountable for how he has implemented criminal policy, primarily to the authority that appointed him, represented by the President of the HCJ.

In parallel, the Minister of Justice remains responsible for overseeing the management and administrative direction of the courts. In this context, Article 72 of the Organic Law of the Supreme Council of the Judiciary stipulates that the Supreme Council of the Judiciary shall take into account - when appointing judicial officials - the reports drawn up by the Minister of Justice on the level of performance of judicial officials in supervising the management and administrative direction of the courts. In addition, Article 54 of the same Organic Law created a joint body between the Supreme Council of the Judiciary and the Ministry of Justice to ensure coordination in judicial administration.34 In addition, under Article 55 of the same law, the Ministry of Justice is also responsible for taking the necessary measures to implement the decisions of the HCJ relating to the administrative and financial situation of magistrates in cooperation with the relevant departments of the Council.

2.2. An authority with rigid internal dependence

The hierarchical subordination of the Public Prosecutor’s Office members is one of its fundamental and historical characteristics of purely Napoleonic origin. Given the problems posed by the Judiciary’s independence in France, linked to political traditions that showed no acceptance of Judicial authority, with Napoleon’s legalisation, the Public Prosecutor’s Office35 took on the role of judge, employee and administrator.36

In fact, to impose the control of political power over the courts, it used two mechanisms: firstly, a public prosecutor was set up within each court, a public prosecutor before each court of first instance and a general public prosecutor before each court of second instance. They and their representatives are organised hierarchically and are subject to a central executive power. On the other hand, they are submitted to the Judiciary by the principle of the unity while retaining certain guarantees for sitting magistrates, such as security of tenure.

However, the hierarchy that characterises the relationship within the Public Prosecutor’s Office can negatively influence the assessment of promotions and the direction of magistrates’ career paths.37 The Moroccan constitutional legislator explicitly approved this observation when it obliged the HCJ to take into account the assessment reports submitted by the authority to which the magistrates of the Public Prosecutor’s Office are subject, in all matters relating to their career path, in particular the promotions they may receive.38

Clearly, the Moroccan legislator’s choice to establish a hierarchical system based on which public prosecutors are organised, and to link their submission to orders and instructions issued by their hierarchical superiors to the need to give them according to the law and in writing, has strengths and weaknesses. Indeed, while the last two conditions may appear at first sight to be a guarantee against any hegemony emanating from the hierarchical superior and a protection of the accused against arbitrariness, this guarantee loses all sense of its existence and collapses in the face of a criminal procedure many of whose requirements, even the most serious, are too general and broad. However, the legislature has given the public prosecutor a wide discretionary power that is difficult to control, surrounded by vague and ambiguous concepts.

In approving the hierarchical system and the legal and written instructions addressed to the magistrate of the Public Prosecutor’s Office by his superior, the Moroccan legislator should have distinguished between general instructions and orders concerning the guidelines of criminal policy and those that take the form of written instructions relating to individual matters likely to affect the private interests of individuals.

while the first type of instruction remains acceptable and even desirable because it ensures the unified application of criminal policy and the embodiment of an indispensable unity in its application throughout the national territory, its generality prevents it from undermining the independence of the Public Prosecutor’s Office members.39 Furthermore, it does not prevent magistrates from exercising their discretionary powers and thus establishes equality in applying criminal policy.

On the other hand, the second type of instructions, which are of a private and individual nature, or the possibility of substituting themselves for the public prosecutor, involve an explicit threat to his independence and constitute a source of arbitrariness for the rights of individuals, and a direct violation of the principle of equality of those subject to trial, as it abolishes the discretionary power of the magistrate of the Public Prosecutor’s Office, as long as he is the most and best informed about the merits of the case.

In addition, given the impossibility of opposing the instructions of their superiors, with all that this may entail, whether, in terms of their professional career or the progress of the case as a whole, the magistrates of the Public Prosecutor’s Office are obliged to carry out at least the written orders, on pain of exposing themselves to disciplinary liability in the event of any breach, which makes them magistrates of instructions.

However, when regulating judicial instructions to prosecutors, the Moroccan legislator insisted on issuing them in written form, ruling out any possibility of responding to oral instructions. Conversely, it has not determined the fate of these written instructions, nor has it required their written text to be attached to the case file so that their legal legitimacy and the extent of their impact on the rights of the parties and the conduct of the trial can be monitored at a later date.

In the same context, the removability to which prosecutors are subject is a sign of strong dependence. Although the Moroccan Constitution has adopted the principle of the unity of the judiciary40 and made the Public Prosecutor’s Office an integral part of the judicial authority, it has not granted prosecutors the same guarantees as those provided for judges, in particular, the guarantee against irremovability, which limits the effectiveness of the guarantee of independence granted to them and reinforces their submission to the pyramid hierarchy. Thus, prosecutors can be transferred automatically without their approval and disciplinary procedure.

It is clear that the relationship based on hierarchy and mandatory instructions remains very special. It weakens the Public Prosecutor’s Office more than it strengthens it, especially as it leaves discretion and special authority to the heads of the Public Prosecutor’s Office. Similarly, this relationship remains very sensitive regarding its impact on appearances and even on the requirement for independence. In addition, the hierarchy also contributes to intensifying the fear and anxiety surrounding the public prosecutor. It fuels legitimate doubts, particularly in the event of the application of its judicial powers.

Furthermore, the distinction between the prosecutor’s submissions during the hearing, in which he enjoys a certain freedom of speech, and the binding orders he receives in writing, or the adage ‘the pen is served, but speech is free,’ allows him only limited independence and is often symbolic, even illusory. Similarly, this freedom is threatened by the principle of the indivisibility of the Public Prosecutor’s Office members, as long as a subordinate who is not convinced by the written submissions can always be replaced by another during the hearing.

In summary, any criminal policy must be limited to general guidelines, excluding instructions relating to individual cases. The relationship between all the Public Prosecutor’s pyramidal hierarchy components must be clear, transparent and balanced. In other words, all instructions of a general nature must be in written form and justified before being attached to the file to establish a reconciliation between hierarchical subordination and independence. Similarly, a subordinate claiming the illegality of his instructions must be guaranteed a right of appeal.

3. Public prosecutors’ independence in Morocco: shortcomings and proposals for change

3.1. Public prosecutors, an impartial judicial authority?

Impartiality is the cornerstone of the right to a fair trial.41 It lies at the heart of judicial functions,42 establishes the legitimacy and credibility of the judge as an impartial,43 disinterested third party and, consequently, increases the parties’ confidence in the decisions handed down.44 Impartiality, which is enshrined in several international instruments for the protection of human rights45 and reflected in national constitutions46 and laws,47 is a quality that merges with the idea of justice,48 maintaining a close link with the principle of equality of arms.49 In this respect, impartiality can be defined as being impartial and fair, showing no prejudice or bias, and carrying out one’s duties by “excluding all considerations extraneous to the case.”50 It is a human quality, “a state of mind in which the subject is in perfect balance between the parties.”51

Classically, impartiality is assessed both subjectively and objectively.52 Subjective or personal impartiality refers to personal conviction53 and requires that “the judge approach each case brought before him without prejudice.”54 In this case, the magistrate remains presumed impartial as long as the defendant has not provided proof of serious elements, prejudice or bias on his part. Hence, the magistrate’s presumption of personal impartiality may be denounced.55 Furthermore, objective or functional impartiality involves assessing whether the member of the judiciary offers sufficient guarantees to exclude any objective factors that might give rise to legitimate doubts of partiality.56 Thus, the assessment of objective impartiality is essentially based on hierarchical relationships, the internal organisation of the courts, how judicial functions were performed during the proceedings or other relationships between members of the Judiciary and other parties involved in the proceedings. Functional partiality can only be ruled out by establishing a right of recusal.57

Moreover, the Moroccan legislature inherited the provisions laid down by the French legislature concerning the irrecusability of the Public Prosecutor’s Office58 when the new Code of Criminal Procedure was adopted. Thus, Article 274 of the new code expressly states that public prosecutors are irrecusable. Impartiality is a quality inherent in the very status of a judge.59 The public prosecutor is excluded from this requirement; he is always represented as an accusing party in the trial who does not decide based on a charge. It is not a judge, even if the law confers several judicial powers.60 His role is limited to requesting summonses, and the court that decides cases by issuing judgements.61 For the Criminal Chamber of the French Court of Cassation, “because the Public Prosecutor’s Office does not decide on the merits of the charge in criminal cases, a magistrate of the Public Prosecutor’s Office cannot be criticised for his impartiality during the conduct of the prosecution.”62 The same chamber, in ruling out the guarantee of impartiality, considered that “the public prosecutor, whose role is to support the prosecution, takes no part in the trial of the accused; it follows that this magistrate does not fall within the scope of Article 663 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,”64 which “applies only to judges and not to the representative of the prosecution or the representative of the defence,”65 even though the representative of the prosecution is bound by a duty of loyalty that consists in not distorting the reality of the case before the criminal court.66

Nevertheless, the Moroccan criminal legislator has allowed judges to recuse themselves without offering the same possibility to those of the public prosecutor.67 In Article 275 of the Code of Criminal Procedure, the same legislator obliges any judge - the Article uses the term ‘judicial quality’ without specifying the judicial body concerned - between himself and the accused a ground for recusal to declare it to the first president of the Court of Cassation or the Court of Appeal, as appropriate.

On the other hand, legal logic requires the public prosecutor to be recused for sharing the same judicial status as the judges responsible for handing down sentences.68 In theory, Moroccan Public Prosecutor’s Office members should enjoy the same guarantees as judges. Thus, they are constitutionally part of the Judiciary. Their statutory independence from the executive is a guarantee of their impartiality, which justifies requests to subject them to the recusal procedure.

Furthermore, Public Prosecutors are subject to the principle of impartiality69 in executing their duties.70 Under Article 40 of Organic Law No. 106-13 on the SM, all magistrates, whether prosecutors or judges, must take an oath when they are first appointed to the Judiciary and before taking up their duties, in the following terms “I swear before Almighty God to perform my duties impartially (...) and to commit myself to the impartial application of the law.”71 The Moroccan legislator has deemed any breach of the undertakings contained in the oath to be a breach of professional duty.72

Furthermore, in his practical treatise on the functions of the King’s Prosecutor, De Molène referred to the versatility of the powers of the public prosecutor “the powers of the public prosecutor, properly understood, are the finest in existence.”73 In this respect, the Moroccan public prosecutor is not simply a prosecuting authority. It has two distinct roles: a party to criminal proceedings and a magistrate empowered by law to exercise judicial functions. In this regard, the public prosecutor is a prosecuting party. It initiates public proceedings on a vague principle of discretionary prosecution, with no definition of the general guidelines serving as a reference for decisions in individual cases, which increases the chances of partiality on the part of the public prosecutor, who may resort to motivations guided by private interest, given the hierarchical instructions to which he is bound. In other words, the risk of partiality on the part of the public prosecutor may be intensified if he uses his power to prosecute or not to prosecute, which is dominated by the principle of opportunity.74 Thus, the prosecutor’s family and personal considerations may influence his decision to initiate a prosecution, which may affect his personal impartiality.

In addition to the powers of the prosecution, the public prosecutor performs judicial functions.75 While impartiality is a requirement that is consubstantial with the judicial function, the purpose is to decide between adversaries fairly and equitably.76 For this reason, the magistrates of the Public Prosecutor’s Office only have legitimacy in the exercise of judicial functions, especially about the qualification of prosecutions and infringements of liberty, when appearances do not show a prejudice, just as the accumulation of functions does not appear to be a commitment on the part of this magistrate in favour of one of the parties to the criminal proceedings.

In contrast, functional impartiality presupposes that the Public Prosecutor’s Office does not perform both prosecution functions and functions relating to detention and release.77 Consequently, if the public prosecutor combines prosecution and judicial functions, whether in the same case or several cases, this can only be a legitimate reason to fear for the impartiality of the public prosecutor.78 In other words, while appearances are undeniably important in criminal trials, there can be no denying any doubt of bias on the part of the standing magistrate when he makes a decision on a person’s liberty before later becoming a prosecuting party in the same case.

Certainly, the magistrate of the Public Prosecutor’s Office cannot be recused if he were only a principal and necessary party to the criminal trial, an adversary of the accused who exercises the public prosecution, conducts the investigations and uses the remedies. In this case, irrecusability may be justified, as the adversary cannot recuse his adversary. Whereas the latter holds judicial functions that belong to a judge bound by guarantees of independence and impartiality, which makes any partiality or prejudice potentially detrimental to the interests of the accused.79

In addition, despite the significant weight of the competence to qualify the facts conferred on the public prosecutor and its impact on the trial’s outcome, the law did not authorise the accused to recuse the magistrate who took this decision, even if there were grounds for doing so. Also, the chances of the existence of reasons contrary to the presumed impartiality increase in the case of the public prosecutor, given the broad judicial powers granted to him, which are based on discretion, which intensifies the risk of miscarriages of justice.

In summary, the enshrinement of the public prosecutor’s right of recusal and the obligation to give reasons will lead to greater transparency in initiating prosecutions and, consequently, greater impartiality.

Moroccan legal writers supported the idea that all magistrates should be recused during the drafting and discussion of Moroccan criminal procedure legislation.80 Nevertheless, the legislator has departed from this approach by limiting the scope of the recusal procedure to trial and investigating judges without including public prosecutors.

However, the recusal procedure introduced by the Code of Criminal Procedure is not a judicial.81 On the contrary, it is an administrative procedure with special rules. The magistrate recused is not a party to the proceedings but a passive subject. The procedure is neither public nor adversarial. In addition, the decision is not subject to the obligation to state the reasons it is based, and there is no right of appeal. Similarly, no legal provision requiring the first president to rule on a recusal request. Therefore, the first president’s failure to respond to a request appears to be an interesting alternative. The legislator has not set any deadline for responding to a request for recusal.82

This obscurity that characterises the recusal procedure impact the civil penalty decision handed down if the plaintiff’s application is rejected, as the plaintiff will have no right to defend himself or lodge an appeal. The prerogative of recusal entrusted to the parties to the trial whose unfavourable outcome would always result in a pecuniary penalty.83 All unfounded claims result in a fine, which remains open to criticism regarding the rights of the defence. This situation can leave the claimant in a state of uncertainty and lack of confidence in the judicial institution.

Nevertheless, a recusal procedure to guarantee impartiality must be judicial and subject to the procedural requirement of the right to a fair trial. It must comply with the adversarial principle through the communication of the submissions and documents of the recused magistrate to the applicant, in addition to the opening of a judicial debate. Moreover, the order ruling on the recusal must state the reasons on which it is based, be handed down within a specific time limit and be subject to appeal. However, if the public prosecutor is not impartial, what about independence from the parties?

3.2. A public prosecutor independent of the executive, what about the parties?

Independence is one of the foundations of the concept of the rule of law, a guarantee of the fairness of criminal proceedings84 and a corollary of the principle of equality before the law.85 It guarantees fair justice and is a prerequisite for any legal system.86 It strengthens the role of the public prosecutor in the rule of law, therefore, enhances the effectiveness of the judicial system.

Similarly, the guarantee of independence is always associated with impartiality, but the two requirements are conceptually distinct.87 Independence is a precondition for impartiality; you cannot be impartial if you are not independent, but an independent judge can be partial in a particular case.88

Therefore, independence means that no member of the judiciary is subject to undue influence from outside or inside the Judiciary. Thus, it means independence not only from the executive and legislative powers89 but also from the parties to the proceedings.90 In other words, the Public Prosecutor’s Office members must offer the requisite guarantees of independence from the executive and from the parties, which means that he cannot subsequently act against the applicant in the criminal proceedings.

Independence from the parties is the same as the requirement for impartiality, which involves verifying the magistrate’s independence from the parties to the proceedings.

Constitutionally part of the Judiciary, the Moroccan public prosecutor shares the same judicial status as the judges and exercises several judicial functions but is primarily a party to the criminal proceedings, an accusing party whose role is to support the prosecution. Whereas in civil proceedings, the public prosecutor is usually a party in interest, in criminal proceedings, he is always the primary and necessary party, acting on behalf of and in the interests of society.91 No criminal court can validly rule on a criminal case without the presence of a representative of the public prosecutor.

In this respect, the public prosecutor is a prosecuting party. He assumes the powers of a prosecuting authority, which initiates the trial by initiating and exercising the public prosecution in applying the principle of discretionary prosecution. It also conducts investigations, requests summonses and uses legal remedies. The prosecutor is the defendant’s adversary. As the plaintiff at the hearing, the public prosecutor presents his conclusions in an oral indictment and all the evidence supporting his claims before requesting the conviction of the accused.

In summary, while the Public Prosecutor’s Office was statutorily independent of the executive, it depended on the parties to the proceedings since they initiated the prosecution and directed the investigations. Consequently, it did not satisfy the independence requirement concerning the parties, ruling out the possibility of their subsequently acting against the applicant in the criminal proceedings. In these circumstances, and taking into account the principle of the indivisibility of the Public Prosecutor’s Office and its monopoly on the exercise of public prosecution, it is considered that the King’s Public Prosecutors in Morocco did not meet the guarantees of independence to qualify, within the meaning of the international covenants signed by the Kingdom, as magistrates authorised by law to exercise judicial functions.

3.3. Police and public prosecutor relationship: what impact on judicial independence?

The relationship between the Judiciary and the police92 has always been the subject of debate in Moroccan legal doctrine. It remains highly complex and particularly sensitive, notably due to the sensitivity of the judicial police’s missions and the duality of its subordination. Given the great diversity of its functions, the judicial police is of great importance. It intervenes before, during and at the end of criminal proceedings. It is directed and controlled by the Public Prosecutor’s Office.

In this respect, while the Constitution makes the relationship between the public prosecutor and the judicial police an authoritative one,93 criminal procedure distinguishes between the public prosecutor and the general public prosecutor. Even though the latter two share the status of a superior judicial police officer and are affiliated to the same judicial system, the legislator has made the relationship between the public prosecutor and the judicial police officer a management relationship. In contrast, the relationship between the latter and the general public prosecutor is one of authority.

Certainly, this latter relationship is broader than the management relationship, representing only a marginal part of the former. This implies restricting the influence of the Public Prosecutor’s Office in favour of the original authority: the Ministry of the Interior. It often makes the control of the judicial authority over the judicial police more theoretical than real.94 For Dintilhac, “the notion of direction does not necessarily imply depriving those who are directed of their own powers: it is both by a posteriori control and by the possibility he has of initiating investigations or intervening in investigations in progress that the public prosecutor exercises his power of direction.”95

Furthermore, the control relationship has to contend with the complexity of the judicial police’s dual-functional organisation, which makes it very difficult.96 In addition, judicial police officers are not only under the command of the public prosecutor but also under the authority of their superiors.97 However, absolute authority still rests with administrative superiors as straightforward and binding authority of origin. Their instructions and orders take precedence over the instructions of the public prosecutor.

In addition, the judicial police’s affiliation with an independent, non-judicial authority gives them greater freedom of manoeuvre, which limits the effect of judicial control on their actions. Their hierarchical subordinates pursue their pure objectives and priorities, which the Ministry of the Interior generally determines.98

Consequently, implementing the public prosecutor’s instructions is often subject to the goodwill of judicial police officers, who are not placed under his direct authority. They may resort to procrastination or not attach much importance to the case.99 According to Cedras, “judicial police officers are answerable to an administrative hierarchy to which they send reports and from which they may seek or receive instructions in the course of their investigations. As these are sensitive cases, the possibilities open to the executive to influence the course of these judicial investigations are therefore not small. Remember that a police truth often becomes a judicial truth.”100

In the same context, the judicial police officer always works under the authority of his administrative superiors, who control the management of resources that are subject to numerous restrictions and who are also often responsible for operational management and determining the most appropriate material and human resources to achieve efficiency in carrying out the instructions of the judicial authority.101 As a result, the relationship between the administrative head and the public prosecutor impacts the effectiveness of the judicial police’s interventions.102

However, as long as magistrates are absent from the field, they need the judicial police. In addition, they deal with dozens of cases simultaneously, leaving them little time to work closely together on each case. Mohanna adds that “not only are magistrates never in the field, which limits their ability to control the work of the police or gendarmes effectively, but they are also subject to a more direct and binding authority than that of the public prosecutor or the investigating judge: their hierarchy, which pursues its own objectives and priorities, generally set by the Ministry of the Interior.”103

Morocco has a significant shortfall in public prosecutors, with no more than three per 100,000 inhabitants, compared with a European average of 12. This makes it challenging to exercise any control over judicial police officers or even to ensure the independence of the Public Prosecutor’s Office.104 Therefore, a considerable discrepancy exists between the formal powers that the Code of Criminal Procedure confers on public prosecutors and their resources to assert themselves against the police and their administrative and hierarchical apparatus.105 As a result, the management of judicial affairs remains in the hands of the police and their goodwill.106

Furthermore, the role of the judicial police is decisively enhanced by the probative value of the minutes. Thus, investigations carried out by the judicial police are recorded in minutes and compiled in an official file kept by the Public Prosecutor’s Office, which forms the backbone of the trial.107 As a result, all procedural acts are recorded in minutes to which criminal procedure accords probative value.108 This file, containing all the facts of the investigation, is given to the judge, who bases his decisions mainly on the written evidence gathered by the judicial authorities. In other words, the evidence gathered during the police investigation generally determines the framework within which the crime will be examined. This leads to the principles of orality and adversarial, governing the criminal hearing, being emptied of their substance.109

For the Moroccan National Council for Human Rights, “this probative value is not compatible with the presumption of innocence and limits the judge’s authority to control and assess the means of proof.”110 In addition, it reverses the burden of proof, forcing the accused to prove his innocence, which encourages torture and ill-treatment of suspects.111 Paradoxically, the various changes made to criminal procedure only reinforce the strength of the case file, consisting mainly of minutes prepared during the police investigation.

In summary, the general environment, the organisation of the Public Prosecutor’s Office and local police and gendarmerie services, and the nature of the case in question are all criteria that shape any professional relationship between a public prosecutor and a judicial police officer.112 For this reason, any approach to the independence of the Public Prosecutor’s Office remains very difficult, given the presence of the judicial police on the ground, while retaining an administrative affiliation with elements of strength that limit the supervisory role of the judicial authority. Most requests sent to the police by the latter leave them a great deal of room for manoeuvre.113

Moreover, the Public Prosecutor’s Office’s material and human organisation will further weaken it. In the same way, the freedom of intervention of the judicial police, the absence of a legal deadline for the presentation of their reports to the judicial authority and the failure to set a deadline for the intervention of the Public Prosecutor’s Office in investigations are all causes that weaken the effectiveness of control by the judicial authority. Under such conditions, it would be illusory to claim to be directing police action from the Public Prosecutor’s Office, given that the deputies assigned to real-time processing give the impression of being more subject than initiators of anything.114 Practice shows they have no real authority over the judicial police officers because they were not placed directly under their authority.115

Conclusions

The independence of the Public Prosecutor’s Office in Morocco has always been at the forefront. Since 2018, the Moroccan legislature has chosen to proclaim the complete independence of the Judiciary from the executive. While the move may seem innovative and promising, it is the subject of several concerns.

The Public Prosecutor’s Office in Morocco has a hybrid status. Submitted to a rigid hierarchical subordination, it is simultaneously totally independent of the executive and remains dependent on the parties to the proceedings. As a magistrate and guardian of individual freedom, the public prosecutor directs the judicial police, supervises investigations and ensures that infringements of freedom are legitimate. Moreover, the independence of the Public Prosecutor’s Office remains very fragile. The human and financial resources it needs to enshrine this independence and function effectively are not guaranteed.

The real problem at the heart of the status of a public prosecutor is not its lack of independence or impartiality but its ambiguous status. Thus, it combines the functions of an investigating magistrate, a prosecuting authority, a liberty and detention magistrate, a party to the trial, and a quasi-judge.

Establishing independence remains a pressing need and a necessary response to several concerns. However, such independence can only be achieved as part of a comprehensive and far-reaching reform of the procedural system to establish compatibility with the primary principles governing any right to a fair trial.

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Edited by

  • Editorial team

    • Editor-in-chief: 1 (VGV)

    • Reviewers: 2

Publication Dates

  • Publication in this collection
    28 Apr 2025
  • Date of issue
    Jan-Apr 2025

History

  • Received
    07 Oct 2024
  • Reviewed
    20 Nov 2024
  • Reviewed
    27 Jan 2025
  • Reviewed
    03 Feb 2025
  • Reviewed
    17 Feb 2025
  • Reviewed
    28 Feb 2025
  • Accepted
    09 Mar 2025
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