How the Libyan criminal justice system’s commitment to fair trial principles affects the right to access justice

Introduction

Since 2011, there has been hope that Libya would embark upon peaceful endeavors to prevent conflict and restore the foundations of justice in a post-conflict environment, strengthening the rule of law and its enforcement. Libya has faced numerous challenges, especially political and security challenges, which have led the country into a vicious cycle of insecurity and impunity. These challenges have conceivably been an obstacle to every official authority, whether legislative, executive, or judicial.

Justice activists are aware that the right to access justice is upheld under specific conditions. Institutions offering the opportunity to access justice must be available and accessible to the public, especially those afflicted by grievances. People must have the ability to seek justice and file complaints, and persons filing their cases should be supported and attended to.  In order to achieve accessible justice, institutions should be capable of settling disputes on the basis of legal rules, including religious or customary provisions, and capable of implementing these provisions and decisions within a framework based upon the rule of law.[1]

The question remains:  Are guarantees for accessing justice, as set out by international standards, available in Libya?

The answer to this question requires us to differentiate between the legal context of legislative policy, where it is necessary to calibrate the texts of Libyan law with the optimum standards for a fair trial[2], and the legal context of judicial implementation, which must be calibrated with the principles stipulated in Libyan legislation, starting with the constitution, laws, regulations, and decrees. It is necessary to examine the obstacles that hinder judicial reform towards guaranteeing the principle of accessible justice, and to explore potential solutions to overcome these obstacles.

The legal context for access to justice at the legislative policy level

Legal provisions related to a fair trial and accessible justice have a constitutional context, which should be robust and inclusive, for any country to be able to assert that justice and its facilitation are constitutionally protected. As for Libya, a permanent constitution has not been agreed upon since 2011, despite the fact that the draft constitution issued by the Constituent Assembly in 2017 contained some articles guaranteeing the right to access justice through the principles of a fair trial.

Article 61 of the draft constitution established the right to litigate, guaranteed for everyone, while affirming the right to resort to a natural judge and that no law or administrative decree should be immune from judicial oversight. Article 62 sets forth the principles of innocence and criminal legality. Article 63 stipulates several procedural principles facilitating the right to accessible justice, including the right to the assistance of a lawyer, the right to a translator, and the guarantee of the availability of state judicial assistance. Part Four focused on the constitutionality of the Judiciary Authority Regulations, the most important of which are Article 118 on the principle of judicial independence, and Article 123 on the prohibition of exceptional courts.

As for the constitutional charter in effect now, it is the interim constitutional declaration and its numerous amendments, including the 2015 political agreement and the 2021 roadmap. Chapter Four in the interim constitutional declaration is dedicated to judicial guarantees. The chapter includes three articles representing the most important principles of a fair trial and the right to justice: the principles of legality, independence, and the presumption of innocence, together with the right to the assistance of a lawyer, and the right to a fair and swift trial.

As for the political agreement, the principles of a fair trial were considered as trust measures stipulated in Article 26 of it. Some of the paragraphs of Article 26 stipulate that the obligation to provide effective protection is entrusted to the competent judicial authorities, who should be enabled to review cases of detention and arrest, and to immediately release any prisoner or detainee held without legal basis. The article also stipulates that judicial authorities retain the authority to hold detainees and prisoners in officially recognized facilities, in accordance with the Libyan laws in force.

The political agreement requires the implementation of Transitional Justice Law no. 29 of 2013, and appoints the Board of Directors of the Fact-Finding and Reconciliation Commission. The political agreement also calls for commitment to the independence of the National Council for Public Freedoms and Human Rights, and for commitment to supporting the council in fulfilling its roles, including that of visiting prisons and following up on detainees.

The roadmap linked the principles of fair trial and national reconciliation in Article 6. Article 6 states that “the path of national and social reconciliation to address the effects of various conflicts” should be launched “by ending the phenomena of arbitrary arrest and enforced disappearance, and releasing prisoners of conscience and those forcibly detained without a right, and working on the voluntary and safe return of displaced persons inside and outside of the country, and reparation without forfeiting the right to sue.”

The sub-constitutional Libyan legal context regulated the right to access justice through several principles of fair trial that are included in articles of criminal laws, including the Criminal Procedures Law of 1953, the traffic law, the drug law, the terrorism law, the juvenile law, and the military procedures law.  Although these special criminal laws provide a reasonable guarantee of the right to accessible justice, they still require legislative interventions to be compatible with and correspond to international standards for a fair trial and access to justice.

For example, Libyan legislation lacks an obligation upon the judiciary to uphold the right of the accused to access procedural information during the investigative stage of inference and investigation; the inference or investigative authority is permitted to access procedural information. Article 61 of the Code of Criminal Procedure allows for the absence of the accused in cases of necessity and urgency.  Any procedural information that is inaccessible to the accused should be in the accused’s favor or should be a decision made in the interests of the accused. If the investigative authority neglects such information or does not claim it, then by law the investigative or inference authority is waiving its right to access procedural information and/or make demands upon the accused in regards to information that it has not shared with the accused. In addition, the right to seek the assistance of a lawyer before the investigative authorities is obligatory only in felonies, in contrast to standing before the inference or investigative authority, despite its importance.

Although the right to be presumed innocent is a constitutional principle, Article 25 of the Code of Criminal Procedure may be interpreted as a breach of it. Article 25 stipulates that a judicial police officer must immediately hear the statements of an arrested suspect. If a vindication cannot be reached, the suspect should be sent to the public prosecution within 48 hours. Therefore, the burden of proof at the inference stage falls on the accused. The investigator’s manual issued by the Ministry of Justice confirms that the accused has two options: to either confess and be interrogated, or to deny the accusations, and then be confronted by the prosecution with various evidences to compel  confession.[3]

Libyan law adopts the search and investigation system in principle, containing simple features of the filing system for complaints and accusations through the ability of the victim to file a misdemeanor case directly before the judiciary. Apart from that, only the public prosecution is authorized to file cases, after approving the investigations of the judicial police authority, or verifying investigations in case of violations and misdemeanors, or after the prosecution has concluded its investigation. On criminal charges, the public prosecution as a general rule or the investigative judge as an exception, must pass through a procedural gate before reaching the judiciary, called the “accusation chamber”, consisting of an individual judge who has broad competencies in investigation and indictment.

Hence the defect in Libya’s procedural system, where the investigation is entrusted in principle to the indictment side, which is the public prosecution. This is a strange paradox. The investigative judge does not receive the case unless upon request.  Although the accused may request an investigative judge to investigate the case, the request may be refused, and the accused has no right to appeal against a refusal, as stated in Article 51 of the Code of Criminal Procedure, regardless of whether the refusal is groundless or not.

As for the right to procedural promptness, it is unclear in Libyan law. The legal periods of pre-trial detention are unlimited, and there is no legal penalty for extending the term of detention or unjustifiably prolonging it.[4]

There is no constitutional or legal guarantee of the right to reparation for error in the application of justice, for any person whom the investigative authorities decided not to file a lawsuit against or the court ruled for their acquittal. However, the right to compensation is included in Article 64 of the constitution draft.

The right to a natural judge is also subjected to legislative abuse. Military Penalty Law no. 49 of 1956 and Military Procedures Law no. 50 of 1956 have determined the jurisdiction of military courts, in terms of personal competence to:

• Officers employed in the Libyan army or belonging to a military force affiliated with it.
• Military school students, non-commissioned officers and soldiers of the Libyan army or any military force affiliated with it.
• Military prisoners, whether Libyan or foreigner.
• Civilians jointly with a military person in committing a military crime in the case of a military operation.

The Military Procedures Law has been subject to numerous amendments since February 2011; such changes have been prompted by prevailing political conditions in Libya. For instance, at times the legislative authority would stipulate that civilians must be tried before the ordinary court, and at other times it would stipulate that civilians must be tried before the military court. Law no. 11 of 2013 was promulgated to amend the laws of military penalties and procedures. Accordingly, Law no. 11 of 2013 amended the Military Penal Code, limiting those subject to its provisions to regular military personnel who have a rank stipulated in the Military Service Law and regular military prisoners. This limitation excludes civilians working in the army as well as volunteers in the army.

Law no. 11 of 2013 also amended the Military Criminal Procedure Code, limiting the jurisdiction of the military courts to crimes committed by those subject to the provisions of the Military Penal Code- military officers and military prisoners – as stipulated by this law. Nevertheless, the General National Congress returned to expand the military’s jurisdiction by virtue of Law no. 5 of 2015, which includes the jurisdiction of military courts for crimes stipulated in the Military Penal Code and General Criminal Code. The House of Representatives also amended this jurisdiction in Law no. 4 of 2017, enabling the military prosecutor to interrogate and summon civilians in the capacity of armed militias or perpetrators of terrorism crimes.

Challenges facing the right to access justice through judicial practice

As for judicial implementation of the law, in practice it is below the standards of that which is explicated by the original text of the law. In many cases, judicial implementation withdraws constitutional and legal protection from the right to access justice. For instance, we find that the law provides for alternatives to pre-trial detention, such as bail, and precise procedures that must be followed. Nevertheless, reality in practice confirms that pre-trial detention is routinely expanded and prolonged. Accused detainees are often transferred without any documentation, and detention is extended without legal follow-up or renewal.[5]

In addition to inhumane conditions of detention, women do not have a designated place in the detention center, with the problem of shared bathrooms among other lingering issues.[6] A woman officer said that she and a woman detainee sleep in the office of the head of investigation until the detainee is transferred in the morning to the prosecution, and from there to prison.

Moreover, in excess of thirty articles of the Penal Code stipulate the death penalty.  The court, however, has been reluctant to implement capital punishment in regards to premeditated murder, pending the pardon of the blood guardian, which is a violation of the right to a swift trial.[7] In terms of military judicial application, according to data issued by the United Nations Support Mission in Libya (UNSMIL), Libyan military courts have sentenced at least 22 people to death following trials of an exceptional nature between 2018 and 2020.  According to Libyan human rights organizations, at least 31 death sentences have been issued.

Currently, there are no official published figures indicating the average duration of criminal litigation in Libya or how long criminal cases take – on average – from the moment the case is referred until the verdict is issued. Despite this lack of official data, we underscore that prisons are overcrowded with people waiting for their right to receive justice.

Practical challenges to accessing justice

Challenges in upholding the right to access justice in Libya can come from within or outside the justice system, and include:

Insecurity:

There is the phenomenon of militias throughout Libya, which perpetrate violations and crimes with impunity. Victims are thus left without any means of redress or justice. At the same time, militias adopt mechanisms for self-entitlement; they take what is viewed as their right by attacking other(s) and also by seizing state institutions. In fact, there are citizens who prefer to resort to militias in questions of justice; as militias are more efficient and swift in fulfilling both the right (justice) and the wrong (injustice).  With the predominance of militias throughout the country, there is virtually no implementation of the law, and no enforcement of judicial rulings.

Social and Political Divisions:

These divisions –  with regional, ideological or ethnic components – reduce opportunities to apply the principles of a fair trial, and infringe upon the right to access justice. We must not overlook the negative influence of politics, customs and traditions, and corruption in Libya. Justice – and especially transitional judicial systems – have been politicized. Manifestations of corruption are observable in the justice sector, while customs and traditions interfere in a variety of ways that undermine the principle of accountability.

Fluctuations in the Concept of Justice:

A precise definition of the term “justice” is currently lacking in Libyan society.  We have observed a civil definition of justice that differs from the Islamic definition of it. Civil justice refers to the application of international law in all its sources, while the constitution is considered a supreme reference for all laws; this is an advocacy approach to justice. Whereas Islamic justice entails the application of Islamic law to the exclusion of others, as the only source of legislation. Justice cannot be derived from any source except Sharia law.

Moreover, justice for victims of the ousted Gaddafi regime differs from justice for victims of the transitional period.  For victims of the former regime, justice entails the total uproot of the regime and its supporters and associates. While for victims of the transitional period, justice entails uprooting supporters of Sharia and the Muslim Brotherhood.

 Libyan society also has new terms for justice, such as “transitional justice” and “restorative justice”.

Recommendations on Feasible Steps to Ensure Victims’ Right to Access Justice

The combined efforts of all parties is imperative to overcoming current obstacles in Libya:

On the International Level

Libya needs the support of the international community in terms of implementing and upholding justice. Nevertheless, this must come with a realization that international support will not produce results unless provided from the framework of an in-depth understanding of law and historical, social, political, economic, and cultural contexts specific to Libya.

Thus, the international community can support access to justice in Libya by participating in institutional reform of the justice sector, whether through training and rehabilitation or by contributing to electronic justice, or by exercising jurisdiction over cases that fall within the jurisdiction of the Libyan judiciary. At the same time, international community support may not lead to effective investigations and judicial prosecutions, if the Libyan state itself does not have a genuine will to achieve justice.

On the Legislative Institution Level

Libya’s legislature can take practical steps towards reform, the most important of which are:

1. Ratify international conventions, including the 1951 Convention Relating to the Rights of Refugees and its 1967 Protocol. This convention will enable irregular immigrants and those defending their rights to have better access to justice. Libya’s failure to sign this convention has allowed it to ignore numerous standard obligations under international law. There is no asylum law in Libya or procedures regulating asylum. And for asylum seekers fleeing persecution or other hardships, there is no formal mechanism for seeking protection.

2. Sign the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. After this convention is ratified, the competent authorities will be able to carry out visits to any place under their jurisdiction and to regulate where detainees are held; either by virtue of an order issued by a public authority, or its approval, permission, or inaction. When necessary, these visits would be conducted with the aim of strengthening the protection of persons from torture and other cruel, inhuman or degrading treatment or punishment.

3. Support the democratic path by holding elections and ending the transitional phase with the mutually-agreed upon permanent constitution.

4. Comprehensively reform legislation, especially criminal laws and legislation, with regard to the constitutional articles previously referred to in “The legal context for access to justice at the legislative policy level” section under the “The Scale of Criminal Justice” (p.19)

5. Amend the Criminal Procedures Law to guarantee more rights for defense lawyers, and to strengthen judicial oversight of the police and prosecution in the pre-trial stages.

6. Support the Transitional Justice Law no. 29 of 2013, its amendment and activation of its executive regulations, and the incorporation of the real estate ownership file into this law. Real estate ownership is a controversial file in Libya, due to the inheritance of encroachment on property from the previous regime, which was aggravated during the transitional period. The grievances of ethnic groups and geopolitical regions must be addressed, considered, and integrated into the general framework for transitional justice.

On the Executive Institution Level

Several steps that Libya’s executive institution can take towards reform:

1. Support the institutional reform of security, military, and justice bodies.
2. Refrain from supporting militias, instead disband and demobilize them, and refrain from integrating militias as groups into the Ministry of Interior or Defense. It shall suffice that militia members be integrated as individuals according to their capabilities and based on their training, with a focus on social, psychological, economic, and practical integration.
3. Support national reconciliation through the file of transitional justice in all its political, economic, and social forms. National reconciliation has an effective impact on the process of state building, the rule of law, and the fulfillment of justice, through the Presidential Council of the Government of National Unity, to which this file referred, in accordance with the Geneva 2021 Roadmap.

On the Judicial Institution Level

1. Judicial bodies, especially the Supreme Judicial Council, which was not affected by institutional division, must strive to increase transparency and governance, and to verify that rulings in important social cases are based on reasons and merits with judicial precedents, according to a correct legal foundation, while adopting a contemporary informed vision through the available academic knowledge in legal and social sciences.

2. The necessity of reviewing the issue of flawed judicial changes, directed at the reappointment of specific judges and prosecutors as public attorneys, and reducing the frequent transfers of judges. These powers are granted to the Judicial Inspection Department, as proposals approved by the Supreme Judicial Council. The judicial system should move towards having specialized judges in specialized cases.

3. The Higher Judicial Institute and the Lawyers Syndicate should cooperate with faculties of law for the purpose of developing expertise and providing high-quality courses in legal practice and theory, across Libya.

4. Train judicial police and those in charge of the judicial authority to observe human rights, and follow proper procedures and standards for a fair trial.

5. Conduct accurate research on electronic justice and the extent to which it reduces the obstacles faced by most justice seekers, and the extent to which it increases the efficiency of the courts in coping with the burdens of accumulated and ongoing cases, especially given the external challenges posed by the Coronavirus pandemic and the unstable security situation.

6. Follow an empowering feminist policy by respecting and sustaining the important roles of women judges and lawyers within the Libyan legal system, with a focus on their roles in family court circuits and domestic violence circuits.

On the Academic Institution Level

1. Assign Libyan universities to implement research projects related to legislative policies with regard to accessing justice, and legal and institutional reform, and encourage joint research groups between Libya and those abroad in the justice field.

2. Revise and develop legal curricula to meet the actual needs of the justice system in particular with regard to human rights, and marginalized groups such as women, children, the differently-abled, and migrants.

3. Establish legal centers supervised by academics, offering training courses that are available for legal professionals.