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Arbitrary Detention report of 24 December 2012, A/
HRC/22/44, §60]
To meet their obligations under international law,
MENA States must ensure that all detainees are
held and registered in official detention facilities,
including by disclosing: their identity; the date,
time and place of their detention; the identity of
the authority that detained and interrogated them;
the grounds for their detention; and the date and
time of their admission to the detention facility.
In order to comply with these obligations, MENA
states should undertake comprehensive reforms of
the framework relating to detention.
Indeed, in many MENA countries, acts of torture
and other ill-treatment have been facilitated, and
sometimes even exacerbated, by domestic laws
relating to detention. In Morocco, for example, the
Counter-Terrorism Act, N°03-03 of 28 May 2003,
permits the extension of the length of garde à vue
(detention in police custody) in “terrorism” cases to
96 hours, renewable twice upon the authorisation of
the public prosecutor. Furthermore, during the garde
à vue, prosecutors, at the request of the police, may
also delay the detained person from contacting a
lawyer for up to 48 hours after the commencement
of the first renewal period. Therefore, a “terrorist”
suspect might be prevented from communicating
with a lawyer for the first 6 days of garde-à-vue. Under
international standards, anyone arrested or detained
has the right to be assisted by a lawyer without
delay and to communicate and consult with his/her
lawyer without interception or censorship and in
full confidentiality. This right may be delayed only
in exceptional circumstances and must comply with
strict criteria determined by law. In any event, the
person deprived of their liberty should have access to
a lawyer within 48 hours of their arrest or detention.
An effective means to combat policies and practices
of arbitrary detention, torture and other illtreatment and enforced disappearance is to ensure
that detention is subject to independent judicial
review. Under international law and standards, all
detained persons have the right to challenge the
lawfulness of their detention and to be brought
before a judge or a judicial authority within 48
hours of their arrest. However, in many of the MENA
States, detention is subject to review by the Office
of the Public Prosecutor (OPP). It is notable that in
these States, prosecutors are under the authority
of the Minister of Justice. As such, they cannot be
considered as officers authorised to exercise judicial
power. The Human Rights Committee considered
that “it is inherent to the proper exercise of judicial
power, that it be exercised by an authority which is
independent, objective and impartial in relation to
the issues dealt with”. The Committee argued that it
was “not satisfied that the public prosecutor could
be regarded as having the institutional objectivity
and impartiality necessary to be considered an
“officer authorized to exercise judicial power” within
the meaning of article 9(3)”. [For further details,
see Human Rights Committee, Vladimir Kulomin v.
Hungary. Communication N°521/1992, 22 March
1996. CCPR/C/56/D/521/1992, §11.3.]
In many MENA countries, the subordination of
the OPP to the executive has resulted in a lack of
prompt, independent and impartial investigations
into allegations of torture and other ill-treatment.
Prosecutors regularly refuse to register complaints
of ill-treatment or torture. In the limited cases
where inquiries have been ordered subsequent
to such complaints, investigations have been
unreasonably prolonged and have failed to address
the responsibility of superiors for the conduct of
their agents.
Such practices breach the obligations of these
States under international law, including the CAT
and the ICCPR. Under Article 12 of this convention,
“Each State Party shall ensure that its competent
authorities proceed to a prompt and impartial
investigation, wherever there is reasonable
ground to believe that an act of torture has been
committed in any territory under its jurisdiction”.
This obligation is also reflected in Principles 33
and 34 of the Body of Principles for the Protection
of all Persons under any form of Detention or
Imprisonment. In addition, Article 13 of the CAT
recognises the right of individuals to make a
complaint regarding allegations of torture and “to
have his case promptly and impartially examined
by, its competent authorities”. Those carrying out
The Middle East and North Africa: A Torture-Free Zone