The right to access to justice in Libya
Sarra Ben Sedrine
Tunisian lawyer at the courts of appeal and occasional professor at the Faculty of Juridical, Political and Social Sciences of Tunis. She holds a Master of Business Law from Faculty of Law and Political Sciences of Tunis, and a certificate of competence in law practice from Institut supérieur de la profession d’avocat, and a certificate in teaching human rights from International Institute Des Droits De L’homme – Fondation René Cassin.
Every individual has the right to access to justice and to petition all courts to protect and defend his rights.[1] The real value of the legal rule lies in its implementation and enforcement, guaranteeing individuals can enjoy their full rights. This right can only be achieved through the establishment of a legal and institutional framework that facilitates access to justice in a smooth and unhindered manner.
The right to access to justice gradually crystallized with the development of the theory and content of fundamental rights becoming classified as a right or a guarantee, meaning that in addition to being a fundamental right, it is a precondition for the enjoyment of other complementary rights.
Since the right to access to justice is a fundamental right, it is among the rights enshrined in the highest laws of the state and benefits all individuals equally, in addition to enjoying greater guarantees through the texts that enshrine it and the bodies that ensure its protection and proper implementation.
This national enshrinement to the right to access to justice resulted from the influence of international human rights law. International law, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights,[2] does not explicitly enshrine the right to access to justice, but rather enshrines the right to “effective access to courts”[3] and “right to a fair trial.”[4]
The right to access to justice is often reduced to other rights that complement or guarantee it, including the right to litigation and the right to a fair trial, which are enshrined in most constitutions in the world, making the explicit enshrinement of this right an exception. This is the case of the Charter of Fundamental Rights of the European Union, issued on 7 December 2000, which explicitly states in Article 47 the principle of guaranteeing access to justice.[5]
It is clear that the Libyan Constitutional Declaration issued by the Interim National Transitional Council on 3 August 2011, in turn, guaranteed the right to access to justice by establishing the right to litigation and the right to a fair trial and provided the basic principles of access to justice, in accordance with international covenants and conventions, based on the supremacy of the constitutional text and the principle of hierarchy of legal rules that require adherence to its provisions and prohibit deviating from it.
The transitional situation in Libya prompts us to question and research whether individuals can access justice in the face of multiple different political and societal challenges and a judicial system that has undergone numerous revisions.
Through this study, we will examine the right to litigation (I), which is one of the most important natural human rights, and through which the individual achieves access to justice. However, this right remains incomplete if not accompanied by the guarantee of a fair trial for the litigant (II), which opens the doors of justice wide.
I- The right to litigation is a guarantee of the right to access to justice
The Libyan Constitutional Declaration chose the title for its fourth chapter “Judicial Guarantees,” reflecting an urgent desire to establish a state of law and institutions stemming from a revolutionary popular will, which can only be achieved by providing a set of guarantees that ensure “citizenship, justice, equality, prosperity, progress and welfare,” and reject “injustice, despotism, tyranny, exploitation, and individual rule.”[6]
The right to litigation is one of the most important fundamental rights, as it guarantees a number of other individual rights that, in the absence of guarantees, lose their value and importance, and are deprived of the status of a “right.”
It is indisputable that the right to litigation is one of the most important results of the right to access to justice, as protecting violated rights and achieving justice can only be achieved through resorting to competent courts (1), which observe the principle of two degrees of litigation (2).
1- The right to resort to competent courts
Article 31 of the Libyan Constitutional Declaration states, “Each and every citizen shall have the right to recourse to the judiciary in accordance with the law.” Article 33 thereof adds, “Right of resorting to judiciary shall be preserved and guaranteed for all people. Each and every citizen shall have the right to resort to his natural judge.” This right has gradually been established since 28 November 1953, when the Code of Civil and Commercial Procedure[7] and the Code of Criminal Procedure[8] were promulgated, as well as the Law of the Supreme Court.[9]
On 14 June 1970, the Supreme Court issued a Constitutional Appeal No. 4/14, stating that “If any written constitution does not stipulate the right of every citizen to resort to the judiciary, in which he is guaranteed the rights of defense, this right is guaranteed without the need to explicitly stipulate it, because it is a right derived from the commands of the Almighty and is one of the natural rights of man since his creation.”[10]
On 18 October 1958, the legal framework for the right to litigation was strengthened, coinciding with the date of publication of the Royal Decree Law promulgating the Judicial System Law, which was repealed by Law No. 29 of 1962.
The Libyan judicial system gradually developed under these laws. The Libyan judicial system enshrines the principle of judicial unity to consist of Summary Courts,[11] which are courts of first instance that are competent to rule in the first instance in civil, commercial, and personal status cases specified exclusively in Articles 46 and 47 of the Code of Civil and Commercial Procedure, and to hear cases of misdemeanors and violations.[12]
The Libyan judicial system also consists of primary courts of first instance, which are competent to rule in the first instance in all civil, commercial, and personal status cases that are not within the jurisdiction of the summary court.[13] It is a common law court that adjudicates all disputes and crimes except for those excluded by a special provision.
The judicial system further consists of courts of appeal,[14] which are courts of second instance that hear appeals against rulings issued by courts of first instance.
At the head of all these courts is a supreme court,[15] the Court of Cassation, which hears appeals against rulings issued in civil, commercial, and personal status matters in the cases stipulated in the Code of Civil and Commercial Procedure, and rulings issued in criminal matters in accordance with the Code of Criminal Procedure, as stated in Article 24 of the Code of Civil and Commercial Procedure.
Within the aforementioned courts, there is a type of specialized judiciary, through the establishment of specialized chambers, to hear certain cases. This includes the Constitutional Judicial Chamber of the Supreme Court, which has exclusive jurisdiction over its combined chambers to hear appeals filed by anyone with a direct personal interest in any legislation that violates the Constitution and any substantive legal issue relating to the Constitution or its interpretation that arises in a case pending before any court, in accordance with the provisions of Article 23 of the Supreme Court Law, which was added by Law No. 17 of 1994, amending Law No. 6 of 1982 on the reorganization of the Supreme Court.
The right to access to constitutional justice cannot be addressed without reference to the new Constitutional Court Law[16] and its serious impact on the right to access to justice. This new law stripped jurisdiction from the Constitutional Chamber, and the Supreme Court refrained from implementing it. There is an appeal against the new law.
The new law creates a real issue of access to constitutional judiciary in Libya. According to the new law, access to the constitutional judiciary is by defense only for litigants, and only the spokesperson of the House of Representatives, at least ten representatives, the Prime Minister, or ten ministers can directly challenge a law as unconstitutional, according to Article 21.
The defense is further subjected to the supervision of the courts of origin, which decide the seriousness of a case, and whether or not to refer it to the Constitutional Court, according to Article 25 of the new law. The new law represents a reduction in the jurisdiction of constitutional judiciary, and even a threat to the achievements represented by the jurisprudence of the Supreme Court, which under the new law has become a Court of Cassation and a disturbance in constitutional judiciary, rendering it formal and limited, thus dimishing the right of access to justice.
Administrative judiciary chambers established at the degree of appeal courts[17] are competent to adjudicate on requests to annul illegal administrative decisions.
The right to access to justice brings a person before their natural judge. However, Law No. 4 of 2017 jeopardizes that right by granting jurisdiction to the military judiciary to handle cases based on the Anti-Terrorism Law, regardless of whether the accused is civilian or military.
In practice, numerous detainees are held without trial before the military judiciary based on this amendment, posing a real threat that violates the principle of the right to access to a competent court, the principle of the impermissibility of exceptional courts, and the principle of the impermissibility of trying civilians before military courts.
As one of the most important guarantees of the right to access to justice, the judicial system must consider bringing courts closer to litigants by placing them throughout the entire Libyan country, in accordance with the geographical spread of the Libyan territory. Article 33 of the Constitutional Declaration stipulates, “The State shall guarantee to bring the judiciary authorities near the litigants and shall guarantee the swift determination on lawsuits.” Access to justice and the realization of this right can only be achieved through the proximity of courts to litigants. The proximity of courts to litigants is one of the new guarantees that did not receive attention in Libyan legislation before the issuance of this constitutional declaration. This guarantee must not remain a mere legislative enshrinement, since at the level of implementation, litigants before Libyan courts continue to experience some difficulties related to judicial decentralization.
2- Establishing the principle of Litigation on two degrees
International and regional treaties guarantee the right to litigation on two degrees as a guaranteed right.[18] Article 14, paragraph 5, of the International Covenant on Civil and Political Rights stipulates, “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”
The principle of litigation on two degrees is one of the basic principles on which judicial structure is based in various contemporary judicial systems.[19] The principle provides an opportunity for a person convicted by a court of first instance that restricts or harms his rights and freedoms to raise his case with all its factual and legal elements again before the court of second instance through appeal.
Libyan legislation enshrines the principle of dual litigation in the Code of Civil and Commercial Procedure and the Code of Criminal Procedure. Primary Courts of first instance hear appeals against rulings issued in the first instance by the Summary Court.[20] The Court of Appeals is competent to rule on appeals filed against rulings initially issued by the Primary Court of first instance.[21]
In penal matters, appeals for violations and misdemeanors are heard by the appellate bodies formed in each court of first instance. As for felonies, the Libyan Code of Procedure provides for only one degree, which is the felony chamber formed in each court of appeal. According to Libyan law, there is no appeal for rulings issued in felony cases, and the defendant has no recourse to review the ruling except to appeal to the Supreme Court. Thus, felony offences are an exception to the principle of two degrees of litigation, which is grave, given the seriousness of the provisions of this article, which makes the necessity for fair trial guarantees more important than in other articles.
For crimes described as felonies, the indictment chamber[22] hears the case, as the first instance, and is a referral court rather than a judicial court more concerned with formal and procedural matters than with the substance and the establishment of guilt or innocence, despite its jurisdiction to hear cases before referring them to the Court of Appeal, which does not make it a first instance of litigation in the technical meaning of the term.
II- The right to a fair trial is a guarantee of the right to access to justice
The foundations of justice and equality in any country and under any legal system are based on a fair trial, which is achieved by duties incumbent on states and governments to essentially guarantee an independent judiciary (1), and provide the right of defense to all litigants (2), without discrimination or distinction,[23] and further provide the necessary infrastructure, human resources, and procedures to benefit certain types of litigants, including non-Arabic speakers or those with special needs.
A fair trial represents a guarantee for individuals to exercise their rights, achieving full access to justice. A fair trial is a key criterion for evaluating the governance of various countries and a measure of their sophistication and maturity, as they are now classified by the extent of their respect for the principles of human rights.
1- The principle of judicial independence
The United Nations affirmed in its basic principles on the independence of the judiciary,[24] stipulating, “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
This principle is further enshrined in Article 10 of the Universal Declaration of Human Rights, stating “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
Accordingly, the most fundamental principle governing the judicial function in Libya is that “judges are independent and subject to no authority other than the law,” which is a universal principle enshrined in the majority of the world’s constitutions.[25] Article 32 of the Libyan Constitutional Declaration stipulates, “The judiciary shall be independent. It shall be exercised by courts of justice of different kinds and degrees. They shall issue their judgments in accordance with the law. Judges shall be independent, subject to no other authority but the law and conscience.”[26]
The independence of the judiciary is one of the most important authorities of the state and affirmed in the UN Basic Principles. “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”
The independence of the judiciary can only be achieved through other legal guarantees, most notably ensuring appropriate conditions for the judge’s work and protecting him as he carries out his duties from anything that may interfere or arbitrarily hinder his judgement.
It is established that there is a close impact between the independence of the judiciary and the issue of arbitrary dismissal of judges, which represents a constant threat to them a affects their independence and rulings, and poses a threat to their positions and reputations.
Libyan law protects against arbitrary transfers, which in some systems may represent an indirect means of putting pressure on judges or attempting to threaten them in an indirect manner and punish them by the authority.
The decision to transfer must be justified, and the judge has the right to appeal if he rejects the decision or considers it arbitrary. The provisions of Article 4 of Law No. 32 of 2023 amending some provisions of the Judicial System Law, stipulates, “A member of a body may not be transferred to another body except on the basis of a reasoned proposal from the Inspection Department of Judicial Bodies regarding transfers from or to the judiciary. Otherwise, on the basis of written reasons submitted by the head of the body proposing the transfer to the Council [E1] for its opinion, and the transfer of the member at his request is subject to the discretion of the Council, after the Inspection Department of Judicial Bodies expresses its opinion regarding judges, and after the approval of the head of the body to which the member wishes to transfer to regarding others.
A member transferred against his will may file a grievance against the transfer before the Council within ten days from the date of notification of the transfer decision. The transferred member shall continue to work until he is notified of the transfer decision, and he shall not be released until his grievance is resolved. The Council shall decide on the grievance against the transfer decision within a period not exceeding fifteen days from the filing of the grievance, and the head of the body that proposed the transfer shall not be included in the body considering the grievance, and if the deadline expires without a decision, the transfer decision shall be considered null and void without the need for further action.”
This latest revision of the Libyan judicial system is in line with the international trend, as confirmed by the UN Human Rights Committee in its General Comment No. 32, interpreting the requirements of the International Covenant on Civil and Political Rights, and clarifying the State’s obligation to guarantee the right to a fair trial by stating, “Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.
The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.”
Despite this revision, in practice, judges and prosecutors are still vulnerable to removal through transfer to other departments. This amendment faces a strong custom, process, and legacy of practices that will not be easily changed by the text, yet it should not justify the lack of insistence on changing the prevailing legal and procedural culture and creating institutionalized traditions.
The Libyan context may pose real issues regarding the effectiveness of judicial independence through instability, division of political authorities, and the lack of security for courts and judges, which pose serious challenges to the complete independence of the judiciary and judges in Libya.
2- The principle of securing the right to defense
The right to defense is the right to seek assistance from a lawyer, a right guaranteed by the law that shaped the legal profession in Libya, under Law No. 8 of 1965 regarding the legal profession, amended by Law No. 82 of 1975 regarding the reorganization of the legal profession. Article 1 of thereof stipulates, “Lawyers are assistants of the judiciary in the defense of concerned parties and carry out legal work before the courts and various authorities.”
This chapter affirms that the lawyer is the defender of the litigant and is the only one authorized to carry out legal actions, which is in line with international instruments, including the Universal Declaration of Human Rights. Universal Declaration of Human Rights affirms the provision of all the guarantees necessary for the defense of everyone charged with an offense. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, regarding the protection of persons subjected to any form of detention or imprisonment, stipulate that a detained person has the right to receive legal assistance from lawyers, to communicate with them, and to obtain their counsel.
Reaffirming the role of the lawyer in defense and the administration of justice, the new wording of Article 2 of Chapter 1 of Law No. 3 of 2014 on Law Practice, repealing Law No. 82, stipulates, “Lawyers represent and defend natural and legal persons before all courts, prosecutions and judicial, administrative and disciplinary bodies, in addition to giving legal counsel.”[27]
A lawyer is a legal professional who has the necessary expertise, understands the nuances of legal laws and procedures, and is civilly and professionally responsible.
Article 16 of the Executive Regulations of Law No. 3 of 2014 on Law Practice empowers lawyers to access all of the content of a litigant’s file, stating, “A lawyer has the right to access the case files, documents and papers at the competent authorities, and has the right to obtain an official copy of the documents with the seal and stamps of the official at the authority where they are deposited.
A lawyer may defend the accused, attend investigations and access papers on behalf of the accused who is detained pending investigation, and may attend and plead before the competent court under a power of attorney from a first or second degree relative of the accused. The accused may confirm the lawyer’s agency or dismiss him at his first actual appearance before the court, and the consent of the accused at the first session to the lawyer’s presence shall be deemed to be an acknowledgement and authorization of the agency.”
The right to access to a lawyer or the right to defense, however it is defined, is one of the foundations of justice. Law No. 3 of 2014 on Law Practice adopted this approach in defining the profession of Law Practice. Article 1 of the aforementioned law, stipulates, “Law practice is a free, independent profession that constitutes one of the foundations of justice. It aims to achieve justice and safeguard rights and liberties.”
The right to access a lawyer is a foundation of justice and one of the guarantees of access to justice, and is an essential component of a fair trial for litigants to understand and comprehend the law and the applicable procedures. It further guarantees the litigants’ protection from practices that violate applicable legislation and international standards.
Despite the importance of the lawyers, in reality it is not devoid of shortcomings, in relation to the presence of lawyers in the initial stages of the investigation or gathering evidence, which are among the most dangerous stages on the accused, in which torture and forced confessions often occur[CB2] . The presence of lawyers in the important early stages of the proceedings is not customary and not practical, especially after detention. Detainees cannot refrain from speaking before their lawyer is present, nor are lawyers accustomed to attending these stages of the proceedings. It is impossible to indicate whether this shortcoming is due to a legislative defect or to judicial practices and customs, and lawyers’ fear of humiliation or ill-treatment.
Access to legal aid is a right, and is imperative to guarantee the enjoyment of this right and facilitate access and avoid obstacles, such as distress and poverty. The legal aid system was established by Chapter 5 titled “Legal Aid” of Law No. 10 of 1958 on the Judicial System Law. Legal aid is a system enabling litigants who do not have sufficient funds to defend themselves for free[28] and exercise their rights before the judiciary without expenses of litigation[29] under special conditions[30] and procedures.[31]
After further analysis of the various legal texts, Article 81 of Law No. 2 of 2003 on Judicial Fees stipulates the exemption of basic and social security pensioners, low-income persons, and persons with large families from the judicial fees established under the provisions of this law. Article 81 thereof stipulates, “A decision by the Secretary of the General People’s Committee for Justice and Public Security, based on a proposal from the president of the court or the head of the competent public prosecution, may exempt basic and social security pensioners, low-income persons and persons with large families from the judicial fees prescribed under the provisions of this law.”
However, the questions poses itself regarding the Judicial System Law No. 29 of 1962, which amended the 1958 law, and recognized the legal aid system and provided for it in Chapter 5 of Law 51 of 1976, which repealed the 1962 law, while the provisions of Law No. 6 of 2006 on the Judicial System are devoid of any stipulation or reference to the legal aid system.
The development of laws requires preserving legislative gains and stability in legal rules to guarantee legal security for litigants.
The observer of Libyan affairs may notice the abandonment of the legal aid system, which has been in place since 1958. However, that does not reflect a legislative regression, but perhaps reflects the legislature’s will to abandon provisions that have become axiomatic. The People’s Legal Defense Law provides a way for Libyan litigants who wish to litigate and use a lawyer pro bono, according to Article 1 of Law No. 4 of 1981 on the Establishment of the Department Of People’s Legal Defense. Article 1 thereof stipulates, “The citizens of the Socialist People’s Libyan Arab Jamahiriya shall have the right to seek the assistance of a lawyer free of charge in cases filed against them or by them before judicial bodies, in accordance with the rules set forth by the executive regulation of this law.”
The People’s Legal Defense Law is not a legal aid system, but rather reflects a philosophy aimed at establishing and facilitating the right to litigation, and the right to defense is its most important component. The concept of the aforementioned law is to secure a lawyer for every citizen without any obstacles, including the financial obstacle that alone could prevent the rights from reaching their owners. Those who want a private lawyer can request one at their own expense, in accordance with the provisions of Article 2 of Law No. 10 of 1990 on the reorganization of Law Practice. Article 2 thereof stipulates, “Every person shall have the right to counsel before courts and prosecutions through an attorney from the Department of People’s Legal Defense in the manner prescribed by the aforementioned Law No. 4 of 1981. Every person may also appoint a personal attorney at their own expense to defend them in court and before all other entities in accordance with the provisions of this law and of the regulations issued in accordance herewith.”
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[1] This right can be exercised in a collective form.
[2] The African Charter on Human and Peoples’ Rights, Adopted by the eighteenth Assembly of Heads of State, Nairobi, Kenya, June 1981.
[3] Article 8 of the Universal Declaration of Human Rights, states, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Article 7 of the African Charter on Human and Peoples’ Rights, states, “Every Individual shall have the right to have his cause heard. This comprises: a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force. ”
[4] Article 10 of the Universal Declaration of Human Rights, states, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Article 14 of International Covenant on Civil and Political Rights, states, “1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
[5] Article 47 of the EU Charter of Fundamental Rights states, “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
[6] Paragraph 2 of preamble of the Constitutional Declaration of 2011 states, “Based on the legitimacy of this Revolution, and in response to the Libyan people’s desire and hopes to achieve democracy, establish political pluralism and a state of institutions, to create a society wherein all of us can live in stability, tranquility and justice; a society that can advance in knowledge and culture and achieve prosperity and health care, and that can bring up the rising generations according to the Islamic spirit and love of goodness and the nation.”
[7] The Code of Civil and Commercial Procedure, issued on 28 November 1953.
[8] Decree promulgating the Code of Criminal Procedure, on 01 January 1954.
[9] The Supreme Court was established on 10 November 1953, then reorganized by Law No. 6 of 1982 on the reorganization of the Supreme Court, and amended by Law No. 17 of 1994, Law No. 8 of 2004, Law No. 33 of 2012, and Law No. 6 of 2014.
[10] Soliman Mansour Younes, Emhedy Mohamed Emhedy, “The right of equality before the Judiciary,” (A comparative study on Libyan legislation), Journal of Economic and Political Sciences, Faculty of Economics and Commerce Zliten, June 2019, p. 350.
[11] Article 42 to Article 48 of the Code of Civil and Commercial Procedure
[12] Article 135 of the Code of Criminal Procedure states, “If the judge deems the incident a misdemeanor or a petty offense, he shall refer the accused to the summary court. Upon the issuance of the decision of referral, the Public Prosecution shall send all the documents and items seized to the court registrar within two days and notify the litigants to appear before the court in the nearest session and on the dates scheduled.”
Article 136 thereof, states, (Referral in felonies) “If the investigating magistrate deems the incident a felony, he shall refer it to the Indictment Chamber and task the Public Prosecution to send the documents immediately to it. However, instead of referring the action to the Indictment Chamber, the investigating magistrate may issue an order to refer it to the summary court if he deems that the felony was accompanied by a legal excuse or extenuating circumstances that would reduce the sentence to the limits of a misdemeanor.”
Article 188 thereof, states, (Jurisdiction of the Summary Court) “The Summary Court shall rule on each act considered by law a petty offense or misdemeanor. It shall also rule on the felonies referred to it by the investigating magistrate or the Indictment Chamber, in accordance with Articles (136) and (153) or that it decides to review in accordance with Article (279).”
[13] Article 49 to Article 51 of the Code of Civil and Commercial Procedure.
[14] Article 52 of the Code of Civil and Commercial Procedure.
[15] The Supreme Court was established by the promulgation of the Federal Supreme Court Law on 10 November 1953. “Since then, it began to exercise its jurisdiction as a constitutional court, a court of cassation in civil, commercial and legal status matters, a court of administrative jurisdiction, and a special court for electoral appeals, in addition to the role of fatwa and legislation, given the country’s need at the time (1954) for a specialized and experienced legal body to interpret and review laws before issuance by the federal and state governments.”
The Supreme Court Law has undergone several amendments, the most recent of which was Law No. 33 of 2012.
“The court consists of a president and a number of counsellors, and is composed of 12 chambers, each of which is responsible for hearing a type of case that the court is competent to adjudicate, including five chambers for civil and commercial appeals, one chamber for criminal appeals, one chamber for administrative appeals, one chamber for personal status appeals, and one chamber for constitutional appeals, in addition to the chambers of the court as a whole.” (Official website of the Libyan Supreme Court)
[16] Law No. 05 of 2023, issued on 29 March 2023.
[17] Article 1 of Law No. 88 of 1971 on the Administrative Judiciary, stipulates, “Each civil court of appeal shall establish one or more administrative judicial chambers. The chamber shall be formed by a decision of the court’s general assembly and shall be composed of three counsellors, provided that a member of the Department of Public Prosecutions attends its sessions.”
[18] This principle is enshrined in Article II of Protocol No. 7 to the European Convention on Human Rights, signed in Rome on 4 November 1950, which states, “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal.”
[19] Abdelmajid Lachhab, “The Principle of Two-Degree Litigation,” graduation thesis from the Higher Institute of the Judiciary. 1991. p. 1. Sofiane Khouini, “The Principle of Two-Degree Litigation in Criminal Law,” Faculty of Law and Political Science, Tunis, 2000-2001.
[20] Paragraph 2 of Article 49 of the Code of Civil and Commercial Procedure.
[21] Article 52 of the Code of Civil and Commercial Procedure.
[22] Article 151 of the Code of Criminal Procedure.
[23] Article 11 of Libya’s first constitution, issued on 7 October 1951, states, “Libyans shall be equal before the law. They shall enjoy equal civil and political rights, shall have the same opportunities, and be subject to the same public duties and obligations, without distinction of religion, belief, race, language, wealth, kinship or political or social opinions.”
Article 6 of the Constitutional Declaration of 2011 affirmed the same, stipulating “Libyans shall be equal before the law, enjoy equal civil and political rights with, have the same opportunities in all areas and be subject to the same public duties and obligations, without distinction on the grounds of religion, belief, language, wealth, gender, kinship, political opinions, social status, or tribal, regional or familial adherence.”
[24] UN Basic Principles on the Independence of the Judiciary, adopted 1985. Link.
[25] Article 104 of the Constitution of Bahrain, states, “b. No authority shall prevail over the judgment of a judge, and under no circumstances may the course of justice be interfered with. The law guarantees the independence of the judiciary, and the law shall lay down the guarantees of judges and the provisions pertaining to them.”
Article 117 of the Constitution of Tunisia, states, “The judiciary is an independent function carried out by judges whose judgement is subject to no authority other than the law.”
Article 97 of the Constitution of Jordan, states, “Judges are independent, and they are not subject to any authority, in their jurisdiction, other than that of the law.”
[26] The principle of the independence of the judiciary is enshrined in Article 31 of Law No. 20 of 1991 on the promotion of freedom. “Judges shall be independent. The only authority they shall be subject to in their rulings is the power of the law.”
[27] Article 23 of the Code of Civil and Commercial Procedure, titled “Legal aid,” and states, “Litigants may plead before a magistrate judge without the aid of counsel unless the judge orders otherwise. Litigants before the courts of appeal and the Supreme Court must use legal aid. Litigants of cases of personal status, may plead without the aid of a counsel, unless the case is before the Supreme Court.”
[28] Article 117 of the Judicial System Law stipulates, “1. Legal aid shall have the following effects:
Free of charge defense in the case or matter for which the aid was granted, while preserving the right of the attorney to claim the expenses and fees from the opponent with the verdict against him…”
[29] Article 112 of the Judicial System Law stipulates, “Legal aid shall be granted to people in distress or poverty, whether they are plaintiffs or defendants, regardless of the type of case, including civil suits filed during the course of criminal proceedings. Such aid may be granted to legal entities whose purpose is charity or the education of the poor.”
[30] Article 113 of the Judicial System Law stipulates, “Legal aid shall be granted only in the case of poverty and the likelihood of winning the case. The state of poverty does not mean that the applicant must be completely destitute, but it is sufficient if he is in a state in which he cannot afford the expenses of the case, and the state of poverty is considered proven for Libyans by certificates given by the local administrative authorities and for foreigners by certificates from the consulates of the countries they follow.”
[31] Article 114 of the Judicial System Law stipulates, “Legal aid shall be granted by a decision of the judge competent to hear the case or a judge or counsellor of the Court of Appeals competent to hear the case assigned by the General Assembly for this purpose.”
Article 115 of the Judicial System Law stipulates, “Any person who needs to obtain legal aid, must submit a request to the clerk of the competent court, written on unstamped paper, stating the circumstances of his case and the grounds on which he bases his claim or defense. The clerk shall notify the parties to appear at the session set for the hearing of the request, by a recommended letter accompanied by a letter of receipt.”
Article 116 of the Judicial System Law stipulates, “Upon approval of legal aid, an attorney shall be assigned to the litigant to undertake his defense.”