Key Benefits:
( Plenary Assembly of 21 May 2015 - Adoption: unanimously)
1. France and Morocco are bound by the mutual legal assistance agreement in criminal matters signed on 18 April 2008, authorized for approval by the Act No. 2010-609 of 7 June 2010 published by Decree No. 2011-960 of 16 August 2011, which repealed, in its specific area, the provisions of the Franco-Moroccan Agreement for Mutual Legal Assistance, Exequatur and Extradition of 5 October 1957 (1). The new convention regulates the different facets of classical judicial cooperation such as, for example, the content of requests for mutual assistance, their transmission, their execution, etc. The application of this convention, as in any form of judicial cooperation between France and Morocco, was unilaterally suspended by Morocco in February 2014 (2).
2. A bill authorizing the approval of the additional protocol to the Convention on Mutual Assistance in Criminal Matters between the Government of the French Republic and the Government of the Kingdom of Morocco was tabled on the office of the National Assembly in the context of the accelerated procedure (3). This protocol aims to introduce a new article 23 bis to this mutual assistance agreement. An Impact Study, at the very least summarized, notes that the protocol is likely to tighten ties with one of our main partners " while noting that this "more sustainable and effective cooperation between France and Morocco" comes " in accordance with the domestic law and the international commitments of the two Parties " (4).
3. The CNCDH can at the outset only reiterate its firm opposition to the implementation of the accelerated procedure in matters sensitive to rights and freedoms (5). The 2008 constitutional reform has certainly led to a decrease in parliamentary time devoted to the review of bills, which in practice leads the Government to more frequently implement the accelerated procedure. However, it does not allow a normal functioning of Parliament, as long as it significantly restricts the time for reflection and maturation necessary for democratic debate, and night, by ricochet, to the quality of the law. This concern for consistency, intelligibility of the law and legal security is particularly important for the conduct of international relations. As the CNCDH noted in its opinion of 19 March 2015 on the high-level conference in Brussels, a comprehensive human rights impact study should be carried out systematically for any draft or proposed legislation (6). Similarly, the CNCDH referral should be carried out in a timely manner to allow for an informed debate, despite the constraints of the accelerated procedure.
4. The CNCDH has decided to commit itself to the bill, considering that it does not only raise political considerations, but that it puts into question legal issues whose consequences exceed bilateral diplomatic relations between two countries with close cooperation. Despite its intentional anodinity (a single article allows for the approval of an additional protocol, which is itself limited to adding a single article to the Convention on Mutual Assistance of 2008), the bill contains important legal and judicial issues, particularly in the light of the rules relating to the international criminal jurisdiction of French laws and jurisdictions.
5. In this regard, CNCDH particularly wishes to recall its studies and opinions on international criminal justice, especially its opinion of 23 October 2012 on the balance sheet of the International Criminal Court, which specify its principled positions and recommendations on universal jurisdiction (7). She regretted that the Government ' s responses to her concerns and recommendations remained far from the expectations expressed regarding the transfer of the Rome Statute into French law (8). CNCDH also recalls the converging preconizations on the topic of human rights treaty bodies, such as the Committee against Torture in 2010 (9) and the Committee on Enforced Disappearances in 2013 (10).
6. Moreover, and above all, if the CNCDH readily recognizes that Franco-Moroccan cooperation is of particular importance, particularly in the fight against terrorism, it recalls that this agreement cannot be established at the expense of respect for constitutional rights and freedoms and other international commitments undertaken by France, that they pursue an object of own repressive or protection of human rights. Moreover, since the additional protocol was signed on 6 February 2015, by France and Morocco, it is to be feared that its ratification by Parliament appears as a mere formality, especially since the debate concerns an extremely technical legal issue.
7. The bill introduced in the 2008 mutual assistance agreement, following an article 23 entitled "Denunciation for prosecution" and before an article 24 entitled "Spontaneous exchange of information", a new article 23 bis entitled "Implementation of international conventions" and composed of four paragraphs. Its unclear and unclear drafting shows that it is actually a sui generis protocol, whose implementation will lead to the circumvention of the traditional rules of criminal jurisdiction arising from both domestic and international law (11). It appears to the CNCDH that, through an amendment to a bilateral treaty, the two States intend to establish a sui generis regime of mutual legal assistance, thereby indirectly revising legal obligations established by multilateral conventions. Without mentioning in abstracto the technical question of the hierarchy of international commitments, it should be recalled that, as stated by the International Court of Justice in its opinion of 28 May 1951 on reservations to the convention on genocide: "we can consider as a recognized principle that any multilateral convention is the result of an agreement freely concluded on its clauses and that therefore it cannot belong to any of the contractors to destroy or compromise, by particular unilateral decisions or
8. For the examination of the protocol, the CNCDH will formulate a number of observations by following the order of the new stipulations and placing itself from the point of view of France's obligations.
I. - The title of Article 23 bis
9. At the outset, the CNCDH will not fail to identify the unusual nature within bilateral or multilateral mutual legal assistance agreements of the title: "Implementation of international conventions". Moreover, the protocol does not specify what these international conventions are: conventions whose purpose is specifically repressive, whether it is to criminalize conduct or cooperate in the judicial sphere, conventions whose purpose is general, conventions for the protection of human rights? What about multilateral, bilateral conventions? etc. The Impact Study refers to "the good implementation of the conventions" that bind France and Morocco, "such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984 or the United Nations Convention against Transnational Organized Crime, adopted in New York on 15 November 2000 " (13). For the CNCDH, this indicative list does not clarify the scope of the protocol. It also contains serious gaps such as the international convention for the protection of all persons against enforced disappearances to which France and Morocco are parties, or the numerous international conventions relating to the criminalization of terrorism. It should also be questioned about the implementation of the conventions that bind only one of the two partners, beginning with the obligations imposed on France by the Rome Statute of the International Criminal Court.
10. With regard to the above, the imprecision of the title of Article 23 bis, such as the blur of its scope and the indetermination of its scope, is, for the CNCDH, in itself contrary to the quality requirements of the law, a fortiori in repressive matters, and more broadly of legal law and security, guaranteed at both the constitutional and European levels.
II. Paragraph 1
11. The first paragraph reads as follows:
" As part of their respective commitments and in order to contribute to the effective implementation of the international conventions that bind them, the Parties shall promote more effective cooperation and exchanges between the judicial authorities for the proper conduct of the proceedings, including where the facts reported have been committed in the territory of the other Party. "These new stipulations, of course, impose a general obligation on States parties to exchange information, but without setting the technical terms, namely the diplomatic channel or a simplified path (14). In addition, the reference to "denounced facts" seems to evoke at first sight a "denunciation for prosecution" in the technical sense of Article 23 (15), even as:
- paragraph 2 provides for a strengthened reporting obligation (see infra);
- paragraph 3 with a view to the "removal" of the procedure, can be interpreted as organising a real divestiture of the French judge (see infra) (16) and not a "denunciation for the purposes of prosecution" as well as suggests the Impact Study (17).
Nevertheless, in reality, the expression "denounced facts" undoubtedly refers to all criminally sanctioned facts " brought to the attention of the French authorities by a victim.
In the light of the above, the CNCDH can only regret the lack of precision and clarity, which undermines the quality of the text.
III. - Paragraph 2
12. In the hypothesis referred to in the first paragraph, that is, the facts committed in the territory of one of the two States parties, the second paragraph provides that " each Party shall immediately inform the other Party of proceedings relating to criminally punishable acts in the commission of which nationals of the latter are liable to see their liability incurred". These stipulations enshrine a strengthened obligation of information at the expense of the States parties (not directly from the French and Moroccan judicial authorities), while imposing the immediateity of its grant (18). However, on the one hand, the obligation of information here referred to is distinct from that of "unnouncing" unfitly referred to in the previous article, making it difficult to understand these two paragraphs together. On the other hand, it would be a simple obligation of information, as the CNCDH thinks, it would be critical. First, the CNCDH regrets the vagueness of the notion of immediateness and is surprised that, paradoxically, the transmission of this information is carried out through the diplomatic channel (from Party to Party and not of judicial authority to judicial authority) heavy and therefore slow. Second, this obligation of information contravenes the independence of justice and the effectiveness of the investigation, apart from any procedural guarantees. A risk of manipulation of evidence prejudicial to the implicated is not to be excluded (destruction of existing evidence, creation of false evidence) (19). Thirdly, this obligation of information may be, in sensitive cases, detrimental to victims or witnesses of the facts, provided that the risks of pressure or intimidation against them are far from being non-existent. Fourthly and finally, the immediateness of this information inevitably leads to the suspension of the French procedure pending the reaction of the Moroccan authorities (20).
IV. Paragraph 3
13. This paragraph includes four preambular paragraphs whose CNCDH considers that some of them will pose serious difficulties in interpreting the magistrates responsible for their application.
A. - First preambular paragraph
14. The first paragraph (21) refers to the hypothesis of a procedure initiated with the French judicial authority by a person who does not have French nationality - therefore foreign without being necessarily Moroccan - for acts committed in Morocco by a Moroccan. In this case, the French judicial authority seized collects, "as soon as possible" from the Moroccan judicial authority, "his observations or information".
15. On the one hand, the CNCDH intends to clarify that, in the case of the French judicial authority of an offence committed abroad by a foreigner on a foreign victim, in the absence of any connection with France, the only jurisdiction exercised by French courts and laws is here implicitly but necessarily the universal jurisdiction provided for by the French courts and laws. articles 689-1 et seq. of the Code of Criminal Procedure on the basis of multilateral repressive conventions ratified by France. The offences concerned are crimes deemed to be of extreme gravity, such as torture, terrorist crimes or enforced disappearances. In order to avoid the impunity of their alleged perpetrator in the State in whose territory they were committed, some international conventions to combat these crimes stipulate that any person in the territory of a State party to the convention and suspected of committing such an act must be arrested by the authority of that State, and then prosecuted and tried according to its criminal law.
16. On the other hand, it always results implicitly but inevitably from the new text, that the procedure conducted in France is called to be paralysed pending the "information and observations" of the Moroccan judicial authority. The CNCDH can therefore, once again, deplore the imprecision of the new stipulations.
B. - The second paragraph
17. It provides that in this case (the one provided for in the preceding paragraph), the Moroccan judicial authority " shall take all the measures it deems appropriate including, where appropriate, the opening of a proceeding". In this regard, the CNCDH recalls that a procedure is already initiated in France. It would therefore have been desirable for the stipulations to more clearly provide for the articulation of the two procedures (French and Moroccan), as well as the preservation of the procedural guarantees of the parties.
C. - Third preambular paragraph
18. The third paragraph, which illuminates and supplements the previous paragraph, provides that "In view of the elements or information received", the French judicial authority seized " determines the actions to be given to the procedure, priorityly its reference to the Moroccan judicial authority or its "closing". If words have a meaning, the verb "determine" does not mean the simple examination of the follow-ups to be given to the procedure, but rather the decision on these follow-ups. In other words, except without further classification by the parquet (article 40, paragraph 1 of the Code of Criminal Procedure), or refusal to inform ab initio by the investigating judge (in the cases provided by theArticle 86, paragraph 4, of the Code of Criminal Procedure (22), the French judicial authority is requested to "remove the matter to the Moroccan judicial authority, and not simply to denounce the facts for the purposes of prosecution, as suggested by the Impact Study, to the lesser of normative value (23). Moreover, if it was technically a denunciation for the purposes of prosecution provided for in Article 23, the new stipulations would refer to the latter text and its terminology ("denunciation " and not "removal").
For all these reasons, the CNCDH questions the technical and procedural modalities of what is similar to a divestiture by stating that:
- the Code of Criminal Procedure, in its current drafting, does not provide for a hypothesis of dismissal in favour of a foreign judge (24);
- the Impact Study expressly states that the adoption of the protocol " does not involve any adaptation of national legislative or regulatory provisions" (25).
In all cases of figure, the priority of the "removal" or the "closing" seems to be at first reading the power of appreciation of the French magistrate. However, the CNCDH believes that the CNCDH will consider itself in related practice, as soon as the conditions of application of the protocol are met (26).
19. In addition, regardless of these technical points, the CNCDH questions the scope of this text at the very outset, noting that it is considerable. Indeed, the universal jurisdiction imposed on France, in particular by treaties such as the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, acts whose prohibition is imperative in international law, should be erased from the Moroccan territorial jurisdiction, classical jurisdiction, reactivated here by a bilateral agreement, even though universal jurisdiction has been specifically intended to avoid the excessively frequent impunity provided by the exclusive exercise of the State
20. Even better, it would be enough that bilateral agreements of this kind would multiply from close to close to emptying the Convention against Torture of 1984 and, beyond that, all multilateral conventions providing for the universal jurisdiction to which France is a party. In addition, the training effect that the French attitude would produce on that of its partners is added. However, it is difficult to see how France could refuse to other partners the privileged regime that Morocco would benefit from. For the CNCDH, the approval of the Franco-Moroccan Additional Protocol would inevitably lead to an obstacle to an effective fight against impunity for the perpetrators of these most serious crimes.
21. Moreover, it is also necessary to consider the specific qualification of the terrorist crime, which also obeys French universal jurisdiction. With regard to positive French law, a Moroccan national alleged to have committed a terrorist attack in Morocco that has caused damage to Moroccan victims, if arrested in France, may be prosecuted and tried by a French court in accordance with French criminal laws of jurisdiction, substance and procedure. In the case that the additional protocol would be approved, this individual should be given priority and tried in Morocco. In this regard, the Moroccan National Human Rights Council recently recalled that the consecration of the guarantees of fair trial, namely access to justice and the independence of the judicial authority, is currently a major challenge for Morocco (27). He also noted the persistence of acts of torture and the existence of inhuman and degrading treatment, particularly with regard to persons deprived of their liberty (28). In addition, the death penalty, if it is impossible in France, remains possible in Morocco, only the execution of the penalty subject to a de facto moratorium (29).
22. In total, for the CNCDH, where the preference given to Moroccan justice can cause fear of the impunity of the alleged perpetrator of acts of torture, leading to a denial of justice for victims, on the contrary, in the matter of terrorism, the suppression of French justice can cause fear of a violation of the right to a fair trial of the person prosecuted. The latter finding weakens, in the light of European law, the "removal" provided for in the Additional Protocol, provided that the European Convention on Human Rights protects all persons under the jurisdiction of France, including those who are handed over by its authorities to those of a third State, in order to be tried in conditions that may constitute a violation of a right protected by its stipulations (30).
As for the victim of such crimes, it is, for the CNCDH, certainly losing, in law, as long as it is deprived of all the guarantees attached to its civil status by the CNCDH. French Code of Criminal Procedure (31), a quality of civil rights guaranteed by Article 6 of the European Convention on Human Rights (32), but also, in fact, as long as it is obliged to move to Morocco to ensure the effective defence of its interests during the proceedings and then during the trial.
In addition, the CNCDH is concerned about the absence of any recourse available to this victim against the decision to "remove" which constitutes a potential violation of Article 16 of the Declaration of 1789, as interpreted by the Constitutional Council (33), and Article 13 of the European Convention on Human Rights.
D. - Fourth preambular paragraph
23. The fourth and last paragraph of paragraph 3 (34) seems to reflect the fears raised by the whole article 23 bis by establishing a safety valve to waive the exercise by the French judicial authority of universal jurisdiction. It provides that: "In the absence of a response or in the event of an inertia" of the Moroccan authority, the French judicial authority seized shall continue the procedure on the basis of the universal jurisdiction laid down by the conventions already cited. For the CNCDH, this valve in practice risks having no effectiveness, as long as it is difficult to imagine the lack of response or inertia of the Moroccan authorities in relation to a procedure initiated in France by the head of torture or terrorism, given the extreme gravity of such facts (35). Finally, it is the result of the latter paragraph that the conduct of the procedure in France is well secondary, provided that the "removal" or "closing" are priority (see above).
V. - Paragraph 4
24. The stipulations of paragraph 4 are thus drafted: "The provisions of paragraph 3 of this article shall apply to individuals with nationality of either Party." They aim to extend, without universal jurisdiction, the scope of application of the previous paragraph (mainly the "removal" of the French judge) in ambiguous terms, two readings of this text seem permissible, which greatly undermines its intelligibility.
A. - Restrictive reading of paragraph 4
25. According to the first, restrictive, which is the one retained by the CNCDH, the expression "individuals possessing the nationality of one and the other Party" echoing the expression "procedures committed (...) by a person who does not have the nationality of that person" (paragraph 3), that "individual" may be only a victim. And with regard to acts committed, for example, in Morocco by a Moroccan and obviously provided for by international conventions (conventions whose object is unknown) (36), paragraph 4 necessarily refers to a Franco-Moroccan victim. It is no longer the French universal jurisdiction which is excluded for the benefit of Moroccan territorial jurisdiction, but the passive personal competence attached to the French nationality of the victim of the facts. Unexpected international conventional as is universal jurisdiction, it is provided by theArticle 113-7 of the Criminal Code "The criminal law is applicable to any crime and to any offence punishable by imprisonment committed by a Frenchman or by a foreigner when the victim is a French national at the time of the offence. "In this case, the prosecution in France is more conditioned by theArticle 113-8 of the Criminal Code a request from the Public Prosecutor's Office, itself, preceded by a complaint from the victim or his or her legal persons or an official denunciation by the authority of the country where the act was committed.
26. Certainly, as the CNCDH recognizes, this jurisdiction applicable to all crimes not falling within French universal jurisdiction, that is, the majority of them, and to offences punishable by imprisonment, is not an international obligation, but rather the responsibility of France to its own citizens, that their dual nationality cannot deprive of the protection of French justice for, in particular, crimes committed against them. Accordingly, the Commission considers that the legal and judicial situation of the Franco-Moroccan victim is less favourable than that of the victim of exclusively French nationality, for the reasons already recalled (37). However, since a binational remains, under French law, a French citizen and another citizen, with the same rights and subject to the same obligations (38), paragraph 4 creates discrimination at the expense of the binational civil party, potentially constitutive of a combined violation of articles 6 and 14 of the European Convention on Human Rights, which would not fail to condemn the Court of Strasbourg.
B.- Extensive reading of paragraph 4
27. The hearings conducted at the CNCDH indicated that a broader reading of paragraph 4 could be made, under which the expression "individuals with the nationality of either Party" would indifferently refer to the perpetrator or victim of the facts (39) criminally sanctioned by an international convention. Therefore, it would not only be the rules relating to passive personal competence, but also those relating to active personal competence, which would yield the step before Moroccan territorial jurisdiction (Article 113-6 of the Criminal Code (40) and, with regard to the end of non-receiving public action already mentioned, Article 113-8 of the Criminal Code).
In this regard, fears of a breach of equality between a Frenchman who committed an offence in Morocco and a French-Moroccan binational who committed the same offence in Morocco are real. For the CNCDH, the questioning of the French rules of repressive jurisdiction is in contradiction with the statements of the Impact Study which emphasizes that the adoption of the additional protocol is "in accordance with the internal law "French (41).
In conclusion
28. For all of the reasons examined, the CNCDH expresses in the state its strong opposition to the adoption of the bill authorizing the approval of the additional protocol, as long as it leads to the upheaval of many French rules of international repressive competence in the relations between France and Morocco. The CNCDH particularly insists that France is bound by the 1984 UN Convention which imposes a universal jurisdiction over crimes of torture in order to prevent impunity for its perpetrators. For the CNCDH, France could not adopt a bilateral agreement that ran counter to the purpose and purpose of this convention.
Synthesis of CNCDH recommendations
Recommendation 1: CNCDH recommends that the French authorities not challenge the legal order that French diplomacy has helped to develop in a multilateral framework in order to combat impunity and strengthen international criminal justice.
Recommendation 2: CNCDH recommends that Franco-Moroccan cooperation, more necessary than ever, be based on respect for the rule of law and the independence of justice in both countries, by strengthening the contribution of national human rights institutions and civil society bodies, including the media, in an exemplary relationship.
Recommendation No. 3: The CNCDH therefore recommends that, in the future, the bill authorizing the approval of the additional protocol to the Convention on Mutual Assistance in Criminal Matters between the Government of the French Republic and the Government of the Kingdom of Morocco be withdrawn or rejected.
