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Monday, February 6, 2023
Speech by the First President of the Court of Cassation, President Delegate of the Supreme Council of the Judicial Power on the opening of the new judicial year 2023.

Praise be to God.

Ladies and Gentlemen,

With the high approval of HM King Mohammed VI, may Allah assist Him, we mark the opening of the new judicial year 2022, thanking Allah for our Country’s achievements in different fields, including the judiciary. The latter managed, once again, to show its serious involvement in the reforms led by HM the King in the justice field.

Our Kingdom’s judges continued to uphold their constitutional obligations in 2022 and have spared no effort to assiduously adjudicate cases of citizens and other litigants. District court judges successfully decided on 4,356,970 cases, an increase of 498,924 judgments compared to 2021. This represents an augmentation of 13 percent in judgments. Moreover, the percentage of rendered judgments of cases registered this year has reached 99.54 percent.

The number of cases filed in courts rose from 3,857,389 in 2021 to 4,377,033 in 2022 (up 13.47 percent), leading to an increase of 20,063 pending cases in comparison with 2021 (up 2.8 percent).

Overall, the total pending cases filed in trial courts in 2022 rose by 483,476 cases (up 10.48 percent) to reach 5,094,712.

It is worth mentioning that courts managed to accomplish this achievement despite the difficulties they encountered, especially with regard to writs of summons and the preparation of cases. This year has also witnessed a lawyers’ boycott of court sessions last November. The boycott delayed more than 41,000 cases due to a lack of defense, in addition to a setback in judicial proceedings.

Indeed, judges have spared no effort to decide on cases within a reasonable time, and this has not clouded their interest in rendering superior-quality judgments and decisions. In fact, the quality of judges’ work improves constantly due to their awareness of their duties and keenness to carefully study cases brought before them, following the Council’s strategy in this regard. However, one cannot discern this progress as the mammoth increase in the number of cases exceeds judges’ capacity, which calls for finding adequate solutions.

The urgency of the matter calls for an increase in the number of judges according to the above-mentioned statistics, namely as the number of cases allocated to each judge is estimated at 1,700, meaning seven judgments per day (250 days), and this only covers final judgments and not preliminary ones or the other decisions and procedures processed by judges. Other circumstances also add to the delicacy of the situation, such as the opening of 14 new courts, some of which are ready for service, and the need to activate 23 resident judge centers, 15 of which were created recently. In addition to the need to replace judges who stepped down from their positions either because their term of service came to an end or for other reasons (more than 1,000 judges every year), as well as to address the shortage that courts suffered from recently and to keep abreast of the rise in the number of pending cases in courts that matches an increase of 10 percent every year.

As a consequence, the Supreme Council of the Judicial Power works to coordinate with the Ministry of Justice and the Higher Institute of Magistrates in order to compensate for the shortage of judges, as three classes of trainee judges await graduation in the next three years. It should also be noted that the present situation, which is expected to continue in 2023 and 2024, is characterized by an increase in the number of disputes brought before courts against the number of sanctioned judges. This shortage poses a threat to the efficiency of justice, which requires rendering fair judgments within a reasonable time. However, the number of sanctioned judges falls short of the increasing pendency, causing undue delays. To prevent this, each case will need adequate time for preparation, investigation, and reasoning, as the quality of judgments is affected by the number and backlog of cases.

It is also noticeable that court dockets are piled up with cases that could have been settled outside of the judiciary by means of alternative dispute resolution, namely non-litigation cases (registrations, legal notices, inspections...). Therefore, minor conflicts should be resolved outside of court, regardless of case type (criminal or civil), by setting mediation means and restorative justice to motivate parties. Hence, I would like to seize this opportunity to express my wish to expedite the adoption of legal provisions pertaining to these issues, such as alternatives for pretrial detention and custodial sentences which fall under the regulation of certain draft laws, namely civil law and criminal law. These draft laws are included in the justice reform project.

Ladies and Gentlemen,

Heavy caseloads are not unique to trial courts. In fact, the Court of Cassation is also considerably behind on its dockets and struggles to perform its cassation duties of unifying jurisprudence and keeping abreast of judicial work in courts in order to achieve judicial security.

As such, in 2022, the Court of Cassation registered 52,676 cases as opposed to 48,919 in 2021, an increase of 3,757. In addition to the backlog of 45,644 cases from previous years, last year’s pending cases reached 98,320, an increase of 8.25 percent in comparison to 2021 (7,497 cases). Consequently, the number of cases handled by judges jumped to 550, more than twice the maximum number of decided judgments issued by cassation judges (230 decisions per counselor). Indeed, a large number of cases to handle by cassation judges.

Judges made great efforts to produce 48,423 decisions, an increase of 6.88 percent compared to 2021 (92 percent of registered cases); however, this number only accounts for less than 50 percent of pending court cases.

Indeed, cassation court judges have truly put their shoulders to the wheel this year, as each counselor managed to process 230 decisions this year (5 decisions a week per counselor). Along the same line, the individual production of the Court of Cassation Chambers ranged between 100 and 758 decisions a year. The average annual number of decisions rendered by each counselor reached 400 for the Criminal Chamber, 320 for the Administrative Chamber, 207 for the Social Chamber, 168 for the Civil Chamber, 160 for the Commercial Chamber, and 131 for the Personal Affairs Chamber. As you may have noticed, these numbers are truly a heavy burden to bear.

Ladies and Gentlemen,

These numbers remind us that achieving judicial security on the one hand and preserving the Court of Cassation’s position as an overseer of the consistency of jurisprudence on the other is a crucial issue that prompts the legislator to set more precise indicators to appeals in cassation. In this sense, the Court of Cassation interprets the relevant law and does not examine the facts of a case. Therefore, so as to discharge its duty, the number of appeals brought before it has to be monitored to give its judges adequate time to examine cases. In this regard, I call upon the law’s intervention to achieve this end using the right means, and I should re-make the same suggestions I proposed on prior occasions. At the forefront of these suggestions are the following: cease referring appeals in cassation regarding small value claims, render the bail stipulated in article 530 of criminal law mandatory, and raise its value to prevent abusive appeals while exempting those in need from paying the fee. I also suggest providing public prosecution judges and lawyers specialized in cassation cases with technical training in this regard; as well as setting the time limit for appeals in cassation for the public prosecution starting from the date of the submission of the judgment, as the motion for reconsideration targets the decision itself and not the result. In this sense, the appellate decision must be taken after assessing the judgment on its merits.

Ladies and Gentlemen:

The Court of Cassation pulled out all the stops to render judgments within a reasonable time, as 68 percent of its pending cases were filed in 2022, and only 25 percent date back to 2021, meaning that 93 percent of cases awaiting judgment backdate to less than two years; whereas 6 percent of cases go back to 2020 and 1 percent to the year before. Additionally, the court issued last year landmark decisions that we may consider as jurisprudence, among which we cite the following:

  1. All Court of Cassation Chambers ruled that “a court’s motivation involving a breach of express statutory provisions or a flagrant violation of a clear rule of law that admits only one interpretation” is equivalent to an error of law, calling for a reconsideration of its decisions. Therefore, the Court of Cassation gave precedence to principles and values of justice over the principle of immunizing final decisions against appeals and considered that justice requirements have priority over the principle of statutory positions and that only fair judgments which conform to the law and its precedents should enjoy immunity. (Decision Nº 12/253 of March 8, 2022, review file Nº 11954/6/12/2018).
    The Court has also ruled in the same decision that “submitting a request for reconsideration of an appeal from and against the same parties and decision is allowed only once.
  2. The administrative Chamber of the Court of Cassation has also rendered this year a decision stating that “in the event that each beneficiary is entitled to a portion of a will, the latter becomes an inheritance if one of the beneficiaries goes missing. (Decision Nº 417/1 of 05/31/2022, civil file Nº 3205/1/1/2022).
  3. In another decision, the administrative Chamber deemed that “when article 64 of the code of rights in rem stated that an easement has to be “amply compensated”, it did not specify its attributions; therefore, the compensation does not need to be monetary, it could be in-kind if it benefits the dominant estate”. The Chamber considered that the trial court ought to examine the appellant’s request to exchange the servient estate with a parcel of the appellee’s land along the boundary between their lands and that by failing to do so, its decision was incomplete and liable to cassation. (Decision Nº 860/1 of 12/13/2022, file Nº 99532/1/2019).
  4. The Chamber of personal affairs stated that when the trial court “rejected the permission to appeal filed by appellants on the ground that the time limit for hearing the petition for recognition of marriage should be filed before February 05, 2019 (the statutory deadline for the legal temporary authorization to file petitions for recognition of marriage as stipulated in article 16 of the Family Code), and that by filing the petition on 08-14-2021 (i.e., outside of the time limit provided for in article 16), whereby the presumed marriage dates back to 2007, meaning the period when article 16 was still in force (it ended on 02/05/2019), the court has violated the said article”. The Chamber also added in the same decision that: “even if on the hypothesis that the interim period ended or in the absence of a text fixing the date of hearing of the petition for recognition of marriage, the case shall therefore be deferred, in accordance with article 400 of the Family Code, to the Maliki school of thought and jurisprudence which observe justice, equality, and peaceful co-existence”. (Decision N°358/1 of 06/21/2022 personal status file N°372/2/1/2022).
    Thus, by virtue of its decision, the Chamber has legitimized the hundreds of decisions rendered by trial courts that applied article 400 of the Family Code with regard to marriage contracts registered after the invalidity of article 16, most of which have certainly produced children.
  5. For its part, the commercial Chamber of the Court of Cassation has decided that “the abstention of a manager of a company provided for in law N° 05-96 from sharing with one of the partners the documents stated in article 70 of the said law constitutes an error giving rise to statutory liability” (Decision N° 93/1 of 02/17/2022, commercial file N° 272/3/1/2021).
  6. The same Chamber considered that “the court is obliged to comply with the conditions contained in the arbitration agreement, including determining the compensation agreed upon by the parties, and that any non-observance shall constitute a violation of article 3 of the 1958 New York Convention. (Decision N°159/1 of March 30, 2022, file N° 356/3/1/2022).
  7. In another decision, the commercial Chamber held that “pacta sunt servanda (agreements must be kept)” is a rule of national and international public policy and the exceptions to this rule are agreements outside of the contract, the terms listed on the contract, and the implicit accession to a contract. Therefore, in these cases, a person may be considered a party to the contract even if they did not sign it, thus extending the arbitration clause to them” (Decision N° 615/1 dated October 3, 2022, commercial file N° 377/3/1/2015).
  8. Among the decisions of the administrative Chamber, the latter held that “political or diplomatic decisions issued by the Moroccan government as regards international relations are not considered decisions rendered by an administrative power but rather sovereign acts that do not fall under appealable administrative acts subject to dismissal, nor are they subject to any censorship by the administrative law”. The said Chamber added in the same decision that “the appealable administrative act subject to dismissal is the individual legal act issued by the administration in its capacity as an administrative power, which influences the statutory positions of the concerned people”. (Decision N° 783/1 of 23/06/2022, file N° 4147/4/1/2022).
  9. With regard to the application of health emergency law, the administrative Chamber concluded that the imposition of a vaccine pass to travel and access administrations, institutions, and certain spaces “is a procedure that is part of temporary and urgent restrictions aimed at preventing the spread of the pandemic, protecting the lives of individuals, and ensuring their safety, which is at the government’s discretion…and in no way constitutes an infringement of rights and freedoms" (Decision Nº 785/1 of 23/06/2022, administrative file Nº 5710/4/1/2021).
  10. In the same context, the administrative Chamber considered that the decisions taken by the government regarding the prevention of the pandemic outbreak (whether to ban movement, impose wearing masks, or suspend certain industrial or commercial activities), are measures taken under the provisions of article 3 of Decree-Law Nº 2-20-292, a legislative text, which allowed the government to issue such decisions and measures without being required to publish them in a specific manner or in the official gazette. In this sense, the tacit decision of the Head of Government to refuse to publish these decisions in the official gazette cannot be qualified as illegal and does not constitute an abuse of power as no delinquency was detected”. (Decision Nº 911 of 21/07/2023, administrative file Nº 1003/4/1/2022).
  11. For its part, the social Chamber decided that violence perpetrated by the teacher against a student is considered a violation of the Convention on the Rights of the Child, and “constitutes serious misconduct under article 39 of the Labor Code”. The social Chamber overturned the decision of the trial court which considered that the misconduct was not proven “despite that the documents of the file presented by the plaintiff clearly state in the report of the administrative manager the blows inflicted on the student, the complaint lodged by the student’s guardian, and a medical certificate" (Decision Nº 1289-1 of 02/11/2022, file Nº 1980/5/1/2022).
  12. The criminal Chamber overrode, in explanation of article 143 of Law Nº 36-15 on water, the failure of the General Directorate of Water to include a cost estimation in the certificate of offense”. The Chamber held that this “is not a sine qua non for prosecution, as long as the court can estimate the cost of the said project by means of adequate research and investigations”. The purpose of the Chamber’s decision is to preserve water resources against any indiscriminate exploitation by ensuring the observance of administrative and legal procedures in well-drilling. (Decision Nº 1055/6 of 04/06/2022 criminal file Nº 21370/6/2022).
  13. In another context, the same Chamber held that “taking proceedings before a neutral court constitutes one of the guarantees of a fair trial and one of the rights of defense everyone enjoys”. The court, therefore, decided to refer the case to a court other than the one where the civil plaintiff works as a judge “for fear that the said court would not respect the principle of impartiality and independence”. (Decision Nº 635/1 of April 13, 2022, criminal file Nº 6356/6/1/2022).

Ladies and Gentlemen,

The Supreme Council of the Judicial Power announced last year its interim strategy, which tackles seven major objectives. These objectives aim to enhance the Council’s institutional capacities, enable it to implement its strategy, and discharge its constitutional duties. They also seek to promote the independence of judicial power and assist the Council’s contribution to the improvement of the effectiveness of the justice system, strengthening communication, moralizing justice, fostering trust in the judiciary, and advancing cooperation and partnership.

The strategy includes 21 axes based on 45 projects. These projects are divided into 163 actions, which the Council prioritizes their implementation between 2021 and 2026. In fact, the Council has already started implementing them following their establishment and will announce in due course the outcome of the efforts carried out in this regard.

The past year was marked by good coordination in the field of judicial administration, which gave way to the transfer of financial and administrative decisions regarding judges from the Ministry of Justice to the Council. This transition came into force in January 2023. The coordination has also yielded draft projects which support the independence of judicial power and manage judges’ professional situations, namely the draft amendment of the Council’s Organic Law and the Statute for Judges, as well as the draft law on the Higher Institute of Magistrates. I would like to seize the opportunity to extend my gratitude to the government and both parliament’s Chambers for their support for all the initiatives that aim to consecrate and promote the judiciary’s independence. My deepest gratitude is also in order to the Justice Minister and the Ministry’s officials for the fruitful collaboration and effective performance of the joint committee on coordination in judicial administration. I would also like to thank the Secretary-General of the government, the officials of the General Secretariat, the Ministry of Finance, and the General Treasury of the Kingdom for their contribution to the elaboration and execution of these legislative and regulatory initiatives.

On another note, the Council continues to manage judges’ professional statuses. Thus, in addition to its decision to appoint 150 new judges, the Council decided to promote 632 judges and advance 13 other judges to higher positions. The Council has also promoted 1664 judges.

Additionally, the Council decided on 425 transfer requests for judges and allocated 602 positions for judges following their promotion. Furthermore, the Council also answered 37 requests for made-in availability and secondment with different institutions and administrations, and 7 judges were seconded with the Kingdom’s embassies and consulates in several countries. The Council has also decided to terminate the made-in availability or secondment of 26 judges.

With regard to the disciplinary matter, the Council took measures regarding 168 reports conducted by the General Inspectorate of Judicial Affairs, 86 of which were assigned a rapporteur, and 17 others were subjected to an assets’ estimation. The Council has also taken decisions to take no further action regarding 65 reports of the General Inspectorate.

Additionally, the Council rendered decisions on 53 reports of the rapporteurs resulting in the referral of 42 judges to the disciplinary board and the filing of 11 judges’ cases with no further action, in addition to conducting complementary investigations on five more cases.

The Council also issued 33 disciplinary decisions to convict 25 judges of violation of values of professional ethics, honor, reverence, and dignity. Moreover, 8 judges were exonerated and the penalties imposed by the Council varied between impeaching two judges, forcing three judges into retirement, the temporary severing of 8 judges from work, and imposing 12 punishments of the first degree.

In a similar context, the Council decided to reinstate six judges.

On another note, the Council decided to extend the retirement age limit for 282 judges and superannuate 87 judges. As far as disbarment from the judiciary is concerned, the number of judges removed from the judicial body in 2022 hovered around 108 judges, 6 of whom passed away. May the Almighty envelop them in mercy and forgiveness and May He grant ease to the hearts of their family and friends.

As part of the Council’s openness to its surroundings and contribution to public activities, the President Delegate granted, under the competencies entrusted to him by virtue of the law, permissions for 572 judges to participate in various workshops, namely 102 permissions to teach at the Higher Institute of Magistrates and 49 to teach at universities across the country.

Ladies and Gentlemen,

On a similar occasion a year ago, the Council launched a website for the jurisprudence of the Court of Cassation and pledged to continue supporting judicial security. I am pleased to announce that the number of published decisions has risen from 7,000 at the launch of the website to more than 12,043 decisions, an increase of 5,000 decisions. Furthermore, the Court of Cassation continues to produce a hard copy of some of its decisions for those who prefer the feel of pen and paper.

Along the same vein, the Council, in coordination with the Court of Cassation, shall proceed with publishing the most important decisions rendered by the said Court. The Council has also been publishing decisions of certain appeals courts, namely on commercial law, with a view to publishing more on different fields of the law.

On this occasion, I would like to extend my sincere appreciation to the Presidents and counselors of the Court of Cassation, the Presidents and judges of trial courts, and the Council’s officials, for their contribution to classifying judgments, defining their legal bases, and preparing them for publication.

It is also a suitable occasion to extend my heartfelt gratitude and appreciation to the Kingdom’s judges and prosecutors for their diligent and fruitful work. I hope they continue to hold on tight to their devotion to the lofty principles they swore to serve so that we can uphold the trust HM the King placed in us and fulfill citizens’ and litigants’ expectations.

I should also like to thank all employees and officials of different courts, associates, and auxiliaries of the judiciary, and Presidents and members of partner institutions for the efforts they exert and continue to expend to assist coordination and cooperation in justice fields and other relevant ones.

I also like to thank members of the Supreme Council of the Judicial Power for their distinguished involvement in judicial moralization programs and for their ongoing efforts to discharge their solemn duty. I also extend my gratitude to the Secretary-General, the General Inspector of Judicial Affairs, the Presidents of Poles, the administrative officials of the Council, and judges and employees of the Council for their distinguished services to the judiciary and for their efforts to further the Council’s performance.

And thanks are certainly due to the Prosecutor General, President of the Public Prosecutor’s Office, and to his associates including judges and officials for their professional partnership which preserves the unity of the judiciary, while respecting competences; and I also thank the departments of the Public Prosecutor’s Office for their outstanding work to increase the judiciary’s effectiveness.

Thank you, ladies and gentlemen, for honoring this inauguration with your presence and for allowing our judges the opportunity to connect with you and feel your support for the judiciary. You represent a plurality of affiliations and a thrust of competencies.

I conclude my speech with a message to all of the Kingdom’s judges extracted from the Speech of HM the King He delivered on August 20, 2009, where he said: “Justice represents, in our eyes, the keystone for the concretization of a principle to which we are particularly attached, namely the equality of citizens before the law. It constitutes the recourse and the pledge of equity, as a factor of consolidation of social stability. Better still, the very legitimacy of the State and the inviolability of its institutions draw their strength from that of justice, which constitutes the very foundation of power”. His Majesty also believed that we should “boost confidence and credibility in an effective and fair justice, for it is the bedrock of the rule of law, the keystone of judicial security and good governance, and a catalyst for development”. This is the desired goal of the reform of justice and the judiciary. Therefore, I call upon the Kingdom’s judges to fathom the deeper meaning of these royal lessons and continue to work toward achieving the intended objective.

Wassalamu alaikum warahmatullah.

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