Arab Commission for Human Rights
Commission Arabe des Droits Humains
"The People’s Court"
Hostility against the Right of Political Organization in Libya
A Report Issued by the Arab Commission for Human Rights
C.A.DROITS HUMAINS – 5 Rue Gambetta – 92240 Malakoff – France
Phone: (33-1) 4092-1588 * Fax: (33-1) 4654-1913 *
http:// home7.swipnet.Se/~w-79939 and www.come.to/achr
The International Law, Local Law and Executive Authority:
The Libyan model may be little comparable to any other model, partly in respect of ratification of a large number of international conventions and pacts of human rights, and partly in respect of settingthese conventions aside when dealing with whatever regulates the relationship between the Executive Authority and those who disagree with it in opinion, whether such disagreement is on the level of the opposition (non-governmental organizations, independent personalities, non-governmental figures of information and culture…) or the political community that differs in its vision of the state and of running the public affairs with Colonel Mu’ammar al-Qadhafi and his approach of regulating this relationship through implicit convergence of the executive, judicial and legislative authorities in a flexible jelly-like way under the direct power of the Executive Authority.The So-Called Issue of the Islamic Groups in Libya
The practices of the Executive Authority, in many of their features, do not differ from the model of the despotic authorities in Syria and Iraq, but even in several laws the very names of the cruel laws in these countries have been copied (as is the case in the law of "Protecting the Revolution" enacted in December 11, 1969).
While we observe some exaggeration in some of the aspects of the Nasserite experiment, the ban of parties goes so far as to regard any party activity "capital offence against homeland" deserving capital sentence as stated in the Law of "banning parties" enacted in June, 1972. In the same stream we find Law no 5 of the year 1988 that authorizes the bureau of public prosecutor to investigate political crimes without specifying the authorities entitled to detain persons; and the law of the so-called "Promotion of Freedom"(sic) of the year 1991 that permits sentencing to death any person whose life endangers the community or disrupts it.
In addition to the discrepancies between the local laws and Libya’s international commitments, there is the moody disposition in the laws and procedures, which makes Colonel Mu’ammar al-Qadhafi, regarding physical punishment, an example of the arbitrary nature of making a decision and giving it up to go back to it once more, resembling in that the Fatimid Caliph al-Hakim bi-Amr Allah, as is reportedby Arab and Muslim historians. In the early seventies the Colonel enacted Law no 148 of the year 1972 and Law no 70 of the year 1973, and the Law no 52 of the year 1972, and then he annulled them disappointedly. Twenty years later the Colonel returned tohis decision again in April 3rd, 1993. In mid 1993 the Libyan leadership declared that those who practiced economic activity without a permit would undergo hand amputation.
Ahmad al-Meslamani summarizes the crises of the Libyan situation thus: "Meaninglessness is what covers everything in Libya: the green book, the revolutionary committees, the public committees, the public conferences, the tents, the billboards, the universities: all have no meaning. Hence, we observe "the general nonsense": it is meaningless and of no significance to be gifted or unskilled, a devoted patriot or of no affiliation, a truthful hardworking person or an idle disabled one, to spend generously and hope or to work and wait. Nobody knows exactly his daily program or his future’s probabilities. Here in Libya lies the real crisis of human rights … it is the agnosticism or indifference "that overwhelms people everywhere; the meaninglessness that wraps things and persons. Out of this political crisis there arise wide human rights violations that find for themselves a helpful legal framework and a political system well-equipped by its nature to realize the maximum level of violations. (Human Rights in Libya. The Limits of Change: CIHRS, 1999, pp. 8-9)
In an attempt to avoid international commitments, the General People’s Congress enacted at the end of the eighties "the Major Green Document of Human Rights in the Age of the Masses" (1988). It is an abridged text quoted from the Universal Declaration of Human Rights. It ignores the right of political organization and retains temporarily the capital sentence, leaving many of the issues related to the judicial power and its independence unstable and undetermined. The Libyan authorities had issued a constitutional declaration in 1969 after the September 1st Movement and then annulled it in 1977 when the People’s Authority was declared and the Qur’an alone was taken as a Constitution.
It is worth mentioning that Libya had acceded the Universal Declaration of Human Rights, and ratified the International Covenant on Economic, Social and Cultural Rights (ICESC), the International Covenant on Civil and Political Rights (ICCPR) and his optional protocol annexe, The Convention Against Torture, CIDAW and The Convention on the Rights of the Child.
The People’s Court
We can say that shar’iyya and civil courts still have the basic structures characterizing them prior to the first of September; for the three levels (criminal courts, courts first instance and courts of appeals) are still within the old specializations, even though the authorities have been specified and the persons’ option has been confiscated. Nomination of the Supreme Court are appointed by the General People’s Congress according to the Congress’s Law no. 6 of 1982. The General Popular Committee of Justice administratively supervises the judicial system. The Ministry of Justice and the Ministry of Home Security were merged into one ministry called: the Secretary of the General Popular Committee of Justice and Public Security in 1999. Thisarrangement, however, does not cover the public and political issues that are all referred to the People’s Courts or special military courts.
Regarding the People’s Courts, we can compare this type of courts in Libya to the model of the Red Khmer and the People’s Court in Cambodia during the regime of Pol-Pot. This court, which belongs to the so-called "the exceptional courts" is basically characterized by deviating from the familiar rules that are adopted to realize the securities of just courts.
The People’s Court was established by Law no 5 of 1988. The subsequent amendments of this law, particularly the one that was introduced by Law no 3 of 1997, however, have turned the court and its extension, the Department of Public Prosecutions--by virtue of its serious and important role in the investigation and presenting the case--into one of the devices of the regime and not a means of realizing justice.
The People’s Court is blamed for its lack of impartiality, objectivity, and honesty for two reasons:
First: The legal texts that control the People’s Court contradict the basic securities of just courts, for article no 26 of the law of the People’s Court, according to its afore-mentioned amendment, states that: taking into consideration the rulings in this law, the investigation conducted by the Department of Public Prosecutions is subjected to the rulings of investigation, known to the examining magistrate, that are stated in the Code of Criminal Procedures. In exclusion of the ruling of the previous paragraph,the Department of Public Prosecutions in the investigations it conducts in the crimes mentioned in the first chapter of the second book of the Criminal Code and Law no 71/1971 A.D concerning the criminalization of involving in political parties and the decree of the Revolutionary Command Council regarding the protective of the Revolution passed on 11/12/1969, does not have to abide by the articles: 58, 60, 61, 62, 68, 69, 72, 73 and 80 of the above–mentioned Code (the Code of Criminal Procedures).
The above-mentioned articles are related to the securities of the investigation, the court and justice, as shown below:
Article 61 deals with the right of the defendants’ agents (the lawyers) to attend the investigation. This right of attending and watching the investigation is annulled.
Article 62 is concerned with notifying the defendants of the day and the place of starting the procedures of investigation.
Article 68 refers to the right of the defendant and the victim to obtain copies of the investigation’s documents at their expense.
Article 69 is concerned with the necessity of the presence of examining officer at the procedures of the experts.
Article 72 is concerned with the defendant’s right to seek the aid of an advisory expert and to enable him to have access to the documents.
Article 73 is concerned with the defendant’s right to revoke the experts if he has good reasons.
Article 80 is concerned with the impermissibility of confiscating the documents kept by the defendant’s lawyer, and the immunity of mutual correspondence between them.
Thus, the law annuals the investigation securities mentioned above, and by so doing it contradicts the basics of just trial.
By its exceptional nature of the People’s Court’s, the law renders transferring its judgments to another office of the Court itself, as an office of appeals, a formal process. This office of appeals is composed of judges chosen from the People’s Court itself, for article no 16 of the law of the People’s Court states that the defendant can appeal to an office of appeals belonging to the People’s Court and not to a higher Court as is the case with normal judging. It even confines the right of appealing before the Supreme Court only to the case of death sentence. This entails that withholding the right of appealing to the Supreme Court in respect of serious sentences, such as life imprisonment, is a deviation from the legal rules stated in the Code of Procedures.
Thus, the law has annulled the right of appealing to a higher court and deprived the defendant of transferring the judgment to the Supreme Court. It is known that the reason of passing this amended law was the fact that the judgment of the People’s Court had repeatedly been revoked or reversed by the Supreme Court for their violation of the law. The amendment was made to close that door.
Article 22 of the law entitles the member of the Department of Public Prosecutions (who is not an examining magistrate) to detain the defendant for the purpose of investigating for 45 days. The chairman of the Department of Prosecutions (who is not a judge either) is entitled to detain him for extra 90 days in contrast with the right of the General Prosecution mentioned in the Code of Procedures to detain him for 6 days only. This implies the excessiveness of the Department of Prosecution by detaining the defendant for the purpose of investigation for a total of 135 days.
Second: in respect of oppression
Through inspecting the cases handled by the Department of Public Prosecutions and the People’s Court, we may conclude the following:
The Department of Public Prosecutions always tried to conceal the cruel practices of the Executive Authority by apparently setting free the defender who was brought to it having been illegally detained for a long period (extending for several years) to arrest him at the same time again. It has been regularly reported that the People’s Court presents its judgments before it passes them, particularly in important cases, to secure the approval of the ruling executive authority before passing them, which violates the Court’s independence and impartiality.
Lawyers and even jurists in general always call for the abolition of the People’s Court, for it is unnecessary in the presence of ordinary judiciary capable of judging in relevant cases.
Third: Following are the relevant articles of the Code of Criminal Procedures that have been invalidated by article no 62 of the Law of the People’s Court.
Article 61: The persons who are entitled to attend the investigation sessions:.
The general prosecution, the defendant, the victim and the prosecution of civil rights and the one responsible for those rights and their agents (lawyers) to attend all the investigation procedures. The examining magistrate has the right to conduct the investigation in their absence, if necessary, to discover the truth, and as soon as that necessity is over, they are allowed to peruse the investigation. Yet the examining magistrate may start with some of the investigation procedures in the absence of the opposing parties in cases of urgency. These are entitled to have a look over the papers documenting these procedures, and the opposing parties have the right to attend the investigation along with their lawyers.
Article 62: Notifying the opposing parties of the day and location of the investigation: The opposing parties shall be informed of the day the judge will start the investigation procedures and their location.
Article 68: The copies of the papers: The defendant, the victim, and the prosecutor of civil rights and the one responsible for those rights are entitled to demand, at their expense during the investigation, copies of the papers of any kind, unless the investigation took place in their absence due to a certain decision in that respect.
Article 69: Inviting experts: If necessary to attest the case, the aid of a physician or other experts may be sought. The examining magistrate should be present at the time of the work to observe it.
Article 72: The consultative experts: The defendant has the right to seek the aid of a consultative expert and demand that the expert be allowed to peruse the papers and whatever has been presented to the expert already nominated by the judge, provided that this should not delay the proceedings of the case.
Article 73: Rejecting the experts: The opposing parties are entitled to reject the expert if there are good reasons to do so. The rejection petition is to be submitted to the interrogator to make his decision. The petition should include the causes of rejection. The interrogator should givehis decision within three days from the day of submitting the petition. The petition entails the interruption of the expert’s work, except in urgent cases and on the judge’s command.
Article 80, banning the confiscation of the papers kept by the defense orthe consultant. The examining magistrate is not entitled to confiscate the papers and documents that the defendant has delivered to his lawyer or the consultative expert to carry out the task he has entrusted to them. Nor is he entitled to confiscate themutual correspondences on the case between them.
In June 1998 a move of arrests was waged against about 152 university professors, students and other professionals on the pretext of their belonging to the Libyan Islamic Group, which called for peaceful change in Libya and was also known by the name "Muslim Brotherhood". The visit of one of the Leaders of the Arab Commission for Human Rights to Libya and the information Amnesty International confirmed that this group does not use violence or advocate its use.
Since the arrest of the group the detainees have been imprisoned in isolation from the outer world. Their places of confinement remained secret. For more than two years they were deprived of their rights to have legal counsel or to receive visits from their relatives. There was no public report of any investigations into the allegations of torture raised by some of the defendants.
The trial of this group started in March 2001. It was agreed that the relevant People’s Court failed to conform to the international standards for fair trial, including the right of the defendant to choose a lawyer. All the sessions of their trial were held behind closed doors in a military compound in Tripoli’s suburbs. The lawyers deputed by the defendants’ families were not permitted to peruse the dossiers or meet their clients. In the second session held on April 29, 2001, they were prevented from entering the court, and the judge appointed some clerks from the Public Bureau of Lawyers. The defendants met with their relatives for the first time and for a short while on April 29, 2001 during the second session of the trial. Then their petition for a permit to receive visitors in Abu Salim prison in Tripoli was refused till at least December, 2001. The judgments were passed in the session of 16/02/2002.
Amnesty International presented two petitions to the Libyan authorities for judicial observation, but their petitions were rejected. More than one Libyan diplomat abroad refused to answer the questions addressed to him concerning this matter.
Till now the text of the official judgments has not reached the Arab Commission for Human Rights. Yet the relatives of the detained persons have received the judgments passed against them. Some say that the judgments are based on articles nos. 2 and 3 of Law no. 71 of 1972 and article no. 206 of Penalty Law that defines political activities in a way to make them cover almost all types of social activity that is based on a political program opposing the principles of September I movement, 1969. Article no 3. of Law no. 71 and article no. 206 of the principle of Penalty Law states that "death sentence" is the fate of whoever calls for establishing any group, organization or society banned by law", or supports such organizations or be a member in them.
There are the sentences against persons concerned:
First: (2) sentenced to death:
1- Dr. Abdullah Ahmad 'Izz al-Din (b. 1950) He has got 4 children – Professor of Nuclear Engineering/ Al-Fatih Univ.-Triopli. He was arrested on June 7.
2- Dr. Salem Muhammad Abu Hanak (b. 1956). He has got 5 children – Professor of Chemistry, College of Science / Qar Younes Univ. – Benghazi. He was arrested on June 5, 1998.
Second: sentenced to life imprisonment:
1- Dr. Abdullah Muhammad Shamiyyah – Professor of Economics / Qar Younes Univ. and Chairman of the Economic Research Center.
2- Dr. Abdul-Latif Karmus – College of Agriculture/ Al-Fatih Univ. – Tripoli.
3- Dr. Rajab al-Jarushi-Professor of Civil Engineering / Qar Younes Univ.
4- Dr. Sulayman Khitroush – Professor of Civil Engineering / Qar Younes Univ.
5- Dr. Abdul–Mun’im Ali al-Husadi – Professor of Chemistry/ Qar Younes Univ.
6- Khalid al-Hashimi al-Zuruq – Engineer – Businessman – Tripoli.
7- Faysal Muhammad al-Safi - Engineer, Libyan Airlines.
8- Muhammad Faraj al-Qallal – Accountant/ Benghazi.
9- Ramadan Muhammad al-Kur- Lather, Freelancer / Benghazi.
10- 'Ayad Muhammad al-Mahdi - teacher / al-Bayda
11- Ahmed al-Maqtuf Dans – teacher / Sabrata.
12- Kamel al-Wash – Aviation Engineer/ Mistrata.
13- Mukhtar Abdullah al-Mahmudi – Aviation Engineer / Tajura – Trapoli.
14- Dr. Sulayman al-Fandi – Professor in the Computer Dept. College of Engineering / Al-Fatih Univ. – Tripoli.
15- Salah 'Umar al-Shamikh – instructor in the College of Science – Qar Younes Univ. / Benghazi.
16- Tariq Ahmed Buzribah – Computer Engineer – Benghazi.
17- Tahir Abdul-Qadir al-Thani – freelancer.
18- Muhammad Ibrahim al-Taib – Imam and Khateeb of a mosque – Benghazi.
19- Muhammad Muhammad al-Ziyani – Engineer, Manufacturing Committee – Bin Walid.
20- Ahmed Abdullah al-Suqi – Engineer – the Factory of Iron and Steel.
21- Hamid Nasr Bashir al-Warfli – B.Sc. – teacher – Benghazi.
22- Abadal-Rahman Salim Wali – teacher – Zliten.
23- Muhammad Hasan Swan – Director of Administrative Affairs -Misratah.
24- Ali al-Sadiq al-Huni – M.A. Engineering – Benghazi.
25- Dr. Abdul – Bari Ali Al-Hadi Al-'Arusi – Erosion Engineering – Sert Company – al-Braqa.
26- Salih Faraj al-Mismari – an official - al-Bayda.
27- Dr. Jamal Fadl-Allah al-Majiri – a veterinary physician – Drana.
28- Abdul-Qadir Muhammad Hamad al-Ajtal – Engineer of fine instruments.
29- Abdul-Fattah Baraka Muhammad al-Awjali – Engineer – al-Marj.
30- 'Awad Baraka Muhammad al-Awjali – Agricultural Engineer – al-Marj.
31- Muhammad al-Mabruk al-Riayan – Agricultural Engineer – al-Marj.
32- Bashir Salim al-Warfli – teacher and Quran tutor – al-Kafra.
33- Fawzi Wanis al-Qadhdhafi – Communication Engineer – Arab Gulf Company – Benghazi.
34- Farahat Mustafa al-Huni – Specialist in Engineering Laboratories / Qar Younes Univ. – Benghazi.
35- 'Umar Miftah al-Slak – programmer, Arab Gulf Company for Petroleum – Benghazi.
36- Dr. Abdul-Salam Ali bin Khyal – Ph.D. in Organic Chemistry / Qar Younes Univ.
37- Nur al-Din Ali Gweyli – official in the Arab Gulf Company for Petroleum. Benghazi
38- Fawzi Bashir Bukatf –Engineer, Gulf Company.
39- Khalid Muhammad Shu’ayb – Civil Engineer – Imam and Quran tutor – Benghazi.
40- Salih Muhammad Dakhil – Mechanical Engineer – al-Marj.
41- Nouri Wanis Balnour, economist, Imam, and Quran tutor.
42- Abdallah Mohamed al-Madani.
43- Kamal Eddin Ramadan.
44- Awad Asour Hududi.
45- Ahmad Muftah Rafida, Misrateh.
46- Salah Ali Azzarouk, Civil Engineer, Benghazi
47- Ahmad Hassan Kashlaf, worker, Misrateh.
48- Abdel Karim Abdel Maksoud al-Houti, worker, Benghazi.
49- Mohamed Fathi Ambiq.
50- Omar Mohamed Ben Taher al-Zawi.
51- Saleh Mohamed Ibrahim al-Zawi.
52- Issa Abdel Jamid al-Zawi, Civil Engineer, Benghazi.
53- Sharif Mohamed Bu Farda al-Sheikhi, Student, Benghazi.
54- Al-Salheen Abdallah al-Mahdowi, Treasurer, Benghazi.
55- Abdelsalam Ali Ashivni.
56- Faraj Hussein al-Dharrat.
57- Mohamed Hussein Balras Ali, Lecturer, Misrateh.
58- Khalifa Hassan al-Jihani.
59- AbdelKarim Ahmad Badi, Engineer, Misrateh.
60- Ali al-Sanousi al-Mismari, economist, Benghazi.
61- Moukhtar Abdelmajid ALMANI, Mechanical Engineer, Misrateh.
62- Abderrahman Abdelmajid al-Dibani, Physician, Benghazi.
63- Soufian AbdelGhani al-Ubaidi, economist, Benghazi.
64- Ali Salem Al-Abbani.
65- Abdel Hafiz Sowesi, Professor, Sarman.
66- Othman Ali Ben Sreti, Commercial field, Benghazi.
67- Fawzi Mohamed Natfa, Jurist, Imam, Dariyana.
68- Abo Bakr Ramadan al-Mikrahi, administration, Benghazi.
69- Khalil Ali al-Bakouch, Civil Engineer, Misrateh.
70- Ali Abo Bakr al-Saghir, Computer Engineer, Misrateh.
71- Tarek al-Taher al-Naas, Engineer, Tajoura.
72- Naser Abdessalam Kashlaf, Commercial field, Benghazi.
73- Omar Al-Warfali, administration, Benghazi.
THIRD: Sentenced to ten years of imprisonment:
1- Akram Yousef al-Ubaidi, Medical student in medicine, Benghazi.
2- Ahmad Mohamed Ibrahim Zaed, administration, Sarman.
3- Ahmad Omar Balteeb, student in medicine, Benghazi.
4- Mohamed Ashraf Faraj Fanoush.
5- Hamad Abdessalam Farisi, student in medicine, Benghazi.
6- Anis Hassan al-Quedi, student in medicine, Benghazi.
7- Mohamed Salah Eddin Abu al-Naja, student in medicine, Benghazi.
8- Omar Ali al-Maghoub, student in chemistry, Benghazi.
9- Yousef Soleiman Bu Sha’ala, engineering student, Benghazi.
10- Nizar Milad Krekesh, student in medicine, Darna.
11- Hamdi Abdelhadi al-Dayhoum, Student in the HSSS, Quran tutor, Benghazi.
Forth: 66 persones released.
Fifth: No sentence for Abdallah Mohamed Shibani because of death.
The Arab Commission for Human Rights considers the way the trial was carried out and the rules of the so-called "the People’s Court" and the special Laws it used, as violations of Human Rights and Libya’s World Commitments. This court represents a new act of the political trials in Libya that has taken upon itself during the last three decades the task of suppressing and physically eliminating the political cadres through mass arrests and unjust trials and changing the society into a security body where citizens’ watching each other is part of allegiance to the ruler.
On this occasion the Arab Commission for Human Rights calls upon non-governmental organizations to organize a campaign of cooperation with Human rights defenders and democrats in Libya and in the exile to demand the freedom for all the detainees of opinion in this country and the termination of the use of exceptional courts and the recognition of the principle of the superiority of the International Human Rights engagement vis-à-vis the Libyan Laws.