The principle of legality of crimes and penalties in Libyan law
Ibrahim Belguith
Lawyer at the Tunisian Court of Cassation and before the African Court for Human and Peoples’ Rights and the International Criminal Court. He taught law, and published numerous legal articles in French in 2022 on the legal profession in Tunisia, titled ‘An authority in chaos… A temple without a guard’. He is a legal advisor to the Adala for All Association and the editor-in-chief of Mawazin magazine.
Article 1 of the Libyan Penal Code states
“There is no offence and no penalty except as provided by text.”
This is in line with Article 31 of the 2011 Constitutional Declaration, which states:
Part FourJudicial Guarantees
Article (31)
There shall be no crime or penalty except by virtue of the text of the law. Any defendant shall be innocent until he is proved guilty by a fair trial wherein he shall be granted the guarantees necessary to defend himself. Each and every citizen shall have the right to recourse to the judiciary in accordance with the law.
These brief articles summarize one of the most important principles of criminal law, namely the principle of legality of crimes and penalties. Most modern positive laws adopt the principle of the legality of crimes and penalties and have been the subject of human rights declarations and conventions since 1948.
In The Universal Declaration of Human Rights was adopted on 10 December 1948 in Paris.
Article 11 states, “2
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”
The United Nations International Covenant on Civil and Political Rights in its Article 15 stipulates, “1.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.
If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” Article 7 of the African Charter on Human and Peoples’ Rights states, “2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.” Article 7 of the European Convention for the Protection of Human Rights states, “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” Article 9 of the American Convention on Human Rights stipulates the same principle.
The principle of non-retroactivity of penal laws, whether by emphasizing the need for a previous provision or by emphasizing the rule of non-retroactivity of penal laws in time, is enshrined [1] in almost every criminal or penal statute.
It seems self-evident that such a principle exists in domestic laws, especially if the state concerned has ratified the International Covenant on Civil and Political Rights or the African Charter on Human and Peoples’ Rights, as Libya has done. But it is still important to recall the root of the principle Rights. Article 15 of the Arab Charter on Human Rights, which states, “No crime and no penalty can be established without a prior provision of the law. In all circumstances, the law most favorable to the defendant shall be applied.”
The principle enshrines the supremacy of the law in procedural or formal aspects and can be rooted in historical reasons that coincided and evolved with the concept of the modern state and the various stages of human thought in rationalizing the relationship between the individual and the authority, and the state and the law. Regarding legality and legislation, it was logical that the state, represented by its competent bodies and through the law, as an expression of national sovereignty and its exercise on behalf of the group or society, is the only one with the authority to define criminal behavior as a threat or harm to society or the people it represents. The exercise of this jurisdiction by the state or, more specifically, the legislative body, is subject to controls in form and content and is not absolute, allowing for the prevention of its encroachment on other general principles governing legal articles in general and the criminal article in particular. This restriction does not stop with the legislative authority, as by exercising its functions, it draws the limits of the judge’s exercise of judicial authority. Without a pre-determined text, the judge may not invent crimes or impose penalties not stipulated by the legislator, thus guaranteeing rights and freedoms for the individual and separation and balance of powers for the group.
Often, when addressing the principle of the legality of crimes and penalties, the focus is on the original substantive aspect, and the procedural aspect is neglected. This omission is unjustified, given the importance of procedures and the close relationship between the procedures and the original article of the misdemeanor and felony law. The general principles and objectives of the legislation in that article cannot be respected without applying the principles and their requirements to the procedures. A criminal or misdemeanor procedure cannot be applied without being preceded by a law. Otherwise, the principle of the legality of crimes and penalties would be emptied of its content, which highlights the complementarity of the general principles of form and origin in the article of crimes and misdemeanors.
Without delving into the origin of the principle in Islamic legislation,[2] which has its own specificities and logic and does not necessarily coincide with positive law, Libya defined the principle with the Royal Constitution of 1951. Article 17 thereof stipulates, “All crimes and penalties shall be subject to the law. No penalty shall be inflicted except for actions subsequent to the issuance of the relevant law. The penalty inflicted shall not be heavier than the penalty applicable at the time the crime was committed.” This principle remained despite the succession of constitutional declarations and the transition of the Libyan Kingdom to the Jamahiriya regime, as well as after the 2011 revolution, as evidenced by the aforementioned Article 31 of the Constitutional Declaration. The draft constitution, or rather the final draft of the pending draft constitution, further adopts this principle. There is no controversy as to the necessity and importance of the principle in any contemporary criminal system that claims to respect human rights, including principles of fair trial.
The tempting simplicity of this principle should not hide the issues it poses in every legal system, both in text and application. Criminal law, whether procedurally or substantively, is not devoid of complexities that may deepen the problems of applying the principle, especially since it is concerned with setting controls for legislative and judicial authorities at the same time, and concerns the public rights of litigants, such as human rights, and is one of the most important pillars of a fair trial. Therefore, it is a matter of searching for balance between all these considerations, which differ and vary from the relationship of the authorities to each other to the details of criminal procedures and rules of origin, as well as the science of criminalization and penal policy.[3] This analysis will not deviate from the traditional approach to the topic in an attempt to analyze the issues posed by the principle in Libyan law, while addressing what is related to the existence of the text (Part I), before focusing on its formulation (Part II). This analysis does not claim to include the numerous issues posed by the principle to the issues addressed herein.
Part I: The existence of the text
This requirement raises the issue of knowing the source and form of the text. Article 1 of the Penal Code stipulates that a text must be written, which excludes all other unwritten sources of law. A text is necessarily written according to the formal, procedural, and constitutional standards established for the nature of each text. Written texts in Libyan law are not limited to ordinary legislation issued by the legislative authority. The executive authority can further issue legal texts, which are undoubtedly lower in the hierarchy of legal texts. However, the legal texts issued by the executive authority, (the government), is known as the regulatory authority, taking many forms, the most important and highest ranking of which is what is known as the regulatory bylaw [CB1] . Can governmental regulations act as legal text to determine or legislate offenses and penalties? Is the matter exclusive to the legislative authority, and is criminalizing or determining punishment by a regulation a violation of the principle of separation of powers?
A law or legal text authorizes the regulatory bylaw to define some criteria for criminalization, without violating Article 1 of the Penal Code. The regulatory bylaw adds an application and supplementation of the text and a partial intervention in the process of defining the offense, which is justified in all cases in practice to keep pace with the development of society and avoid revising the law every time, inherently changing matters and purposes.
We may resort to international conventions for the answer, given their place in the hierarchy over domestic law, (the Penal Code), although they rank lower to the Constitution, in accordance with the principle of the supremacy of international conventions, whether it is the International Covenant on Civil and Political Rights or the African Charter on Human and Peoples’ Rights. The solution is clear in returning to the law in its ordinary sense, namely the legislative text issued by the national legislator, while the addition of the texts of international sources will not keep the evidence of domestic law more certain and important.
What does Article 1 of the penal code mean by “provided by text”? Does the term “text” include regulations and even other government decrees? Or is it limited to the law in its narrow sense, i.e. the legislative text issued by the legislative authority? The general wording in Article 1 may lead to a hasty conclusion that the term text is absolute and must be taken at face value. However, we must take into account the nature of the criminal article aside from the rest of other legal articles.
Regarding the nature of the criminal article, there is a general principle in the interpretation of criminal law, namely the principle of narrow interpretation, which is one of the basic legal principles in the article. Unlike other laws, especially civil law, criminal articles can only be interpreted in their narrow sense. Thus, the term “text” in Article 1 of the penal code can only be interpreted in the narrow sense as a law, and not as any text of law, which is the text issued by the original legislative authority.[4]
The majority of the rest of the articles of the Penal Code, starting with Chapter 2, uses the term “law” rather than a “text,” and the law is interpreted within itself. However, this justification may be criticized because a regulation is further considered a law, and replacing the term “text” in Article 1 with the term “law” in the rest of the articles does not solve the issue. However, if this argument is true, and replacing the term “law” in the rest of the articles with the term “regulation” is logically and legally possible, which is not valid in most cases, then the legislator failed to choose his terms accurately or made a mistake. It is a violation of a fundamental principle of interpretation, which is the principle of not tampering with the legislator, that the legislator cannot be presumed to have erred, otherwise the interpretation becomes a re-legislation under that pretext. The interpretation should be based on interest and logic, which is established in the opinion that the “text” referred to in Article 1 is an ordinary law issued by the legislative authority, in accordance with the principle of separation of powers. Article 17 of the Constitutional Declaration of 2011 confirms that principle and enshrines the exclusivity of legislation with the representative of the legislative authority. This is also consistent with Articles 1 and 4 of the aforementioned Declaration, emphasizing the democratic and civilian character of the state that the principle of separation of powers requires.
The interpretation of Article 1 as described,[5] may oppose Article 507 of the Penal Code[6] to infer that regulations may be a source of criminalization and punishment, which is an unreasonable view. Article 507 is contained in the last chapter (Chapter 4) of the code, titled Other Misdemeanors and Infractions Pertaining to the General Protection of Property, while Article 1 is contained in the first chapter. It can be concluded that the content of Article 1 is the principle and this is evidenced only by the title of the Chapter 1: General Rules. Article 507 is a detailed exception, as evidenced by the narrow scope of the regulation and the limitation to certain types of offenses and the maximum possible penalties. Article 507 acknowledges that the regulation is an incomplete source of criminalization and punishment, when assuming the possibility of issuing a regulation that defines the offense, criminalizing but not defining the punishment, and establishes the penalty of the symbolic dinar, thus confirming the exceptional and marginal nature of the regulation in criminalization and punishment, as an exception to the provisions of Article 1 of the same code.
Part II: Formulation of the text
After addressing the source of the text and the question of “who” (which authority), we address the question of “how.” How a legal text is formulated and edited, which is a crucial matter. A criminal text may pose a threat to public freedom and rights and cannot be drafted or written in an ambiguous or unclear manner or subject to wide interpretation. If a criminal text fails to define a crime or punishment, the executive authority or the judicial authority may freely interpret as it wishes, effectively eliminating the role of the legislative authority in legislation. The criminal text must be as precise, clear, and easy to understand as possible, in order to be applicable to individuals to modify their behavior to respect the text and their ability to anticipate the consequences of their behavior according to criminal texts.[7] This is known as legal predictability. The purpose of the principle of the legality of crimes and penalties does not begin with the role of the judge or law enforcement agencies, but rather with the general public. The general public must be aware that if they engage in criminal behavior, they know or should have known that they are committing a crime and its legally prescribed penalty, or at least be under suspicion in that sense. Article 3 of the Penal Code stipulates, “Ignorance of the criminal law may not be pleaded as exculpation for an act.” Article 3 requires a legal basis, and the presumption of knowledge of the law and the inadmissibility of pleading ignorance of the law, and for the purpose, the law must be clear in its criminalization, penalties, and procedures.
The clear and precise wording and terminology prevent arbitrary application of the law, whether by the public prosecution and security forces at the pre-trial stage, or judges at the trial stage. Caution must be taken because the legal text is sensibly limited, contrary to the circumstances and facts. The application of the principle of crimes and penalties does not require turning the representatives of the judiciary or the executive branch into machines that apply the law, but the margin of assessment remains wide, and should not transgress the criminalization and punishment contained in the law. Articles 27 and 28 of the Penal Code recognize the judge’s assessment.
After taking this precaution, it should be noted that the Libyan Criminal Code, due to the circumstances of the issuance of most of its political texts, did not respect the legal drafting duties required by the principle of the legitimacy of crimes and punishments. Despite Article 1 stipulating that principle, Libyan criminal texts abound, or rather suffer from a large number of examples of broad wording that contradicts the principle and the nature of criminal law more generally.
The Libyan Penal Code, due to the circumstances in which most of its provisions were politically promulgated, fails to respect the legal drafting obligations required by the principle of the legality of crimes and penalties, despite Article 1 stipulating this principle. Libyan criminal articles abound, or rather suffer from many examples of broad wording, contrary to the principle and the nature of criminal law.
The penal code and other laws include examples of formulations inconsistent with the principle of legality of crimes and penalties. With focus on the Penal Code, we address the formulation of some articles regulating extremely dangerous crimes to society, which the law stipulates the maximum penalties, including Articles 206[8] and 207[9], both of which stipulate the death penalty.
Article 206 stipulates, “Anyone who promotes, founds, organizes, funds, or directs any assembly, organization or formation prohibited by law.” The text fails to specify the form of the promotion, and assumes the existence of a previous prohibition of an assembly, organization, or formation, which is not stated in any legal text. Even if we assume that governments or the executive authority are the ones who classify the assemblies, organizations, or formations, there is no governmental or even administrative list of these prohibited structures. The text does not use the term “deemed prohibited,” “violating the law of political parties or associations,” or “established contrary to the law.” However, the text uses the wording “provides any assistance,” and the term “any” opens the door wide to qualify any act or omission as criminal assistance in general. The broad wording extends to the entire article, stating “directly or indirectly in any manner money or benefits of any type from any person or entity,” or “regardless of his rank in the assembly, organization, formation or the like.” These phrases contradict the requirements of accuracy and clarity required by the constitutionally enshrined principle of the legality of crimes and penalties.
Article 207 stipulates another example of a serious crime for which the maximum penalties are prescribed, but its words and formulation allow for arbitrary application and do not allow the individual to modify his behavior accordingly. These imprecise terms of Article 207 include “Anyone who circulates,” as the concept of circulation is unclear, whether it relates to mere publication and rumor, or to the intention to circulate, by mobilizing, enticing, and recruiting, to urge the public or the recipient to adopt that call for the use of violence, terrorism, or any other unlawful means. The term “Anyone who circulates,” does not objectively allow a distinction to be made between those concerned, which poses serious implications, given that the penalty is death, especially if considering the possibility of utilizing the text to settle political or ideological scores and other purposes for which the law was not designed. While the criteria for the use of violence or terrorism are relatively clear, the term “or any other unlawful means” is ambiguous. This is unacceptable for a special criminal text that criminalizes serious acts and a crime for which the only penalty is death. The law seems to leave a margin for the executive authority, the public prosecution, or the courts to cram whatever acts or defendants they want into this article, to be convicted and sentenced to death, which contradicts constitutional rules and the principle of legality. The second and third paragraphs of Article 207 use of the terms “advocacy” and “promoting” pose an opportunity to qualify any act or omission as advocacy or promotion. It would be less dangerous if the text used the term “with the intent to promote,” instead of “for the purpose of promoting,” which is contrary to the requirements of precision and clarity required by the constitutionally enshrined principle of legality of crimes and penalties. The ambiguous and broad wording further poses a threat to other constitutional rights, including freedom of opinion or expression, enshrined in Article 14 of the Constitutional Declaration. The Human Rights Committee’s General Comment No. 34, 102nd session, 2011, paragraph 46, states, “States parties should ensure that counter-terrorism measures are compatible with paragraph 3. Such offences as ‘encouragement of terrorism’ and ‘extremist activity’ as well as offences of ‘praising,’ ‘glorifying,’ or ‘justifying’ terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression.” Paragraph 25 thereof states, “a norm, to be characterized as a ‘law.’ must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.”
Examples of laws other than the Penal Code include Law No. 76 of 1972 on Publications. The publications law includes numerous examples of vague and broad wording. Article 29 thereof,[10] contains a list of what cannot be published, including terms such as “questioning the goals and principles of the revolution,” “calling for the rule of a class or individual,” “contempt of recognized religions and religious sects,” “violating the sanctity of morals,” “the negative side of any topic or issue,” “the positive side,” “inciting sectarian strife, revenge or calling for jahiliyyah (ignorance/pre-Islam period),” “news that would devalue the national currency,” or “breach of trust at home and abroad.” The terms of Article 29, irrespective of the uselessness of its content or its conflict with the right to information or freedom of opinion, which is beyond the scope of this article, are imprecise, legally undefined, and broad terms that allow for a kind of impressionism in their application, making them absolutely contrary to the principle of the legality of crimes and penalties. This issue is found in laws prior to the 2011 revolution and of the former dictatorship, which remain in force despite their contradiction with the Constitutional Declaration of 2011. However, the same issue persists in newer laws post-2011, including Law No. 5 of 2022 Regarding Combating Cybercrimes, in which the same violations persist. Article 4 stipulates, “The use of the international information network and modern technology is lawful unless it violates public order or public morals or harms or damages others,” which are broad terms and concepts. Article 7 stipulates, “The National Authority for Information Security and Safety may monitor what is published and displayed on the international information network or any other technical system and block any content that incites discord or ideas that may destabilize society’s security and stability or harm its social peace.” Article 22 consists of the ambiguous term “satisfy their sexual desire.” Article 29 includes another term, stating, “Anyone who publishes or distributes information that incites racial, regional, or sectarian discord.” Cybercrimes Law includes numerous other terms that are inconsistent with the logic of criminalization.
Summary
This analysis article addresses the principle of the legality of crimes and penalties from the perspective of the text of the law in its form and its content, without the temporal dimension and other issues raised by the principle. Part I of the analysis focuses on the text of the law, more related to public law than criminal law, and raises issues of the relationship between the authorities and their jurisdiction, with a somewhat theoretical nature. Part II of the analysis focuses on the content of the law and its practical importance in the wording of the text, and covers the entire criminal law. The wording of the text is an indicator of the extent of the rule of law and the principles of the state of law and institutions that respect human rights and public freedoms, which may be impossible to respect without the principle of the legality of crimes and penalties. However, the outcome of the law in Libya by that criterion still requires legislative, judicial, and even executive will until these texts, their wording and even their content, are amended. Unfortunately, despite the challenges posed by the Constitutional Declaration of 2011, particularly in its articles 1, 4, and 15, on the legislative authority in Libya in adapting previous existing texts to its principles and requirements, and what was supposed to be legislative frameworks and societal dialogues to crystallize the revolutionary legislation has remained unchanged until today. The governmental, legislative, and judicial scene often resembles a return to the pre-revolutionary mentality by adhering to old texts and enacting new ones similar to the old.
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[1] Koni Ali Abuda, “The Supreme Court and the Principle of Legality,” Mawazin. Edition 1. September 2023. p.6. The principle of legality in Administrative Law.
[2] The Libyan legislator codified the Islamic Shari'a, whether for tazir offences or hadd offences, which is a form of respecting the principle of crimes and penalties and reconciling between positive law and Islamic legislation, and the issues started when the positive law ignored detailed matters.
[3] Dr. Mukhtar Abu Sabiha al-Shibani and Professor Ahmed al-Tayeb, “The Role of the Libyan criminal legislator in drawing punitive policy.” Legal Research Journal. Issue 12. December 2021.
[4] Tarek el-Gamli, “Sources of the Penal Code: Criminalization and Permissibility” in Libyan law to a contrary solution by interpreting the term in Article 1 of the Penal Code as a term encompassing ordinary and statutory legislation.” Journal of Legal Studies. Issue 20. p.13.
[5] Ibid.
[6] Article 507 of the Penal Code titled Regulations stipulates, “Anyone who violates police regulations issued by public, municipal, or local administration shall be punished by the penalties prescribed by those regulations, provided that the period of detention does not exceed one week and the fine does not exceed LYD 10. If the penalty prescribed by the regulations exceeds these bounds, then the penalty shall be reduced thereto. If the regulations do not prescribe a penalty, anyone who violates the same shall be punished by a fine not exceeding LYD 1.”
[7] European Court of Human Rights decision, Sunday Times v United Kingdom (A/30). “A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.”
[8] Article 206 of the Penal Code stipulates, “Anyone who promotes, founds, organizes, funds, or directs any assembly, organization or formation prohibited by law, or allocates a location for its meetings; anyone who joins or incites the same in any manner, provides any assistance therefor; anyone who receives or obtains directly or indirectly in any manner money or benefits of any type from any person or entity with the purpose of establishing a prohibited assembly, organization, or formation or prepare therefor, shall be punished with the penalty of death. In application of the penalty, the superior and subordinate shall be deemed equivalent, regardless of his rank in the assembly, organization, formation or the like, and regardless of whether the assembly is located domestically or abroad.”
[9] Article 207 of the Penal Code stipulates, “Anyone who circulates within the country, by any means, any views or principles that aim to alter fundamental constitutional principles, or the fundamental structures of the social order, or to overthrow the political, social, or economic order of the State, or to destroy the fundamental structures of the social order, by the use of force, terror or any other unlawful means, shall be punished by death.
Anyone who possesses books, leaflets, drawings, slogans, or any other items with the purpose of advocating the said acts, or who advocates them in any other way.
Anyone who receives or acquires, directly, through an intermediary, or any other way, money or benefits of any type from any person or entity, domestically or abroad, if such is for the purpose of promoting any of the acts set forth in this article, shall be punished by life imprisonment.”
[10] Article 29 of Law 76 of 1972 on publications stipulates, “It is not permissible to publish in any publication:
1. The deliberations and decisions of the Revolution Command Council and the Council of Ministers without authorization from the competent authorities.
2. The movements of the armed forces and matters relating to their organization, mobilization, formation, numbers, armaments, signaling, locations, training or the names of their members, together with their positions, except with the authorization of the Commander-in-Chief of the Armed Forces.
3. Secret trials and their transcripts.
4. Cases prohibited to publish by the courts.
5. Questioning the goals and principles of the revolution.
6. Calling for the rule of class or individual.
7. Contempt of recognized religions and religious sects.
8. Violating the sanctity of morals or defaming the reputation of persons.
9. Photographs of the deceased unless authorized by the competent authority.
10. Customs tariffs or decisions of supply committees related to pricing, import wages, or currency decisions, before authorizing their publication.
11. The negative side of any topic or issue and ignoring the positive side with the intention of misleading the masses.
12. Incitement of sectarian strife, revenge or calling for jahiliyyah (ignorance/pre-Islam period).
News that would devalue the national currency, or government loan bonds, or breach of trust at home or abroad.
Any violation of the provisions of this article shall be punishable by imprisonment and a fine of not more than one thousand dinars, without prejudice to more severe penalties stipulated in the Penal Code or any other law.
A publication may be suspended by a decision of the competent minister, in which case the procedures stipulated in Article 33 of this Law."