Libya: Gaddafi son, ex-officials, held without due process
Detainees Describe Solitary Confinement, No
Access to Lawyers
February 13, 2014
(Beirut) – Libya has failed to grant basic due process rights to Saif al-Islam Gaddafi and other detained former officials of the Gaddafi government.
On January 23, 2014, Human Rights Watch interviewed Gaddafi in an office at a base in the town of Zintan. The base is under the control of a guard force that is detaining Gaddafi at an undisclosed location, and says it operates under Defense Ministry authority. Human Rights Watch also visited the former military intelligence chief Abdullah Sanussi and former Prime Ministers al-Baghdadi al-Mahmoudi and Abuzaid Dorda, in Al-Hadba Corrections Facility in Tripoli on January 23. Libyan Judicial Police are, at least formally, in charge of administering the prison. The General Prosecutor authorized the visits, the Libyan Government facilitated the visit at Al-Hadba, and the Zintan Local Council facilitated the visit to Gaddafi.
“The Libyan government should make greater efforts to ensure these detained former officials have adequate legal counsel and the opportunity to defend themselves fairly before a judge,” said Nadim Houry, deputy Middle East and North Africa deputy director at Human Rights Watch. “The prosecution of these men will be no more credible than a kangaroo court if the authorities fail to provide these men with basic due process rights.”
Gaddafi and Sanussi said they do not have a lawyer, while Dorda and al-Mahmoudi said they have been denied adequate access to their legal counsel. All four detainees said that they did not have lawyers present during interrogations, the right to remain silent and to know their interrogators’ identity, or an opportunity to review the evidence submitted against them in relation to crimes they allegedly committed during the 2011 uprising. Gaddafi said he did not have an opportunity to appear before a judge for all cases in which he is implicated.
On October 24, 2013, Judge al-Zayed al-Oreibi of the Pretrial Chamber of the Tripoli Appeals Court charged these four detainees, along with 33 other former Gaddafi officials and employees, with serious crimes during the February 17 revolution that led to the overthrow of Muammar Gaddafi.
The charges were laid at the third and final pretrial session held in the Al-Hadba facility in Tripoli. The judge ordered the case sent to trial (case no.630, “the Government Officials Case”) without setting a date. Under the Libyan Code of Criminal Procedure (CCP), the pretrial judge must review the sufficiency and reliability of the prosecutor’s evidence and establish the precise charges (CCP article 153). According to article 151 of the same code, the case must be dismissed if the evidence is found to be insufficient or has been illegally obtained. If a case is remitted to trial, and a defendant has not elected a lawyer, article 162 stipulates the chamber must appoint one.
Libya’s general prosecutor told Human Rights Watch on September 18 that neither pretrial sessions nor the court documents, including charge sheets, are public. Although Human Rights Watch was not permitted to attend the court sessions, it was able to review the charges.
Gaddafi was not present for any of the sessions but said he knew of some criminal charges against him. While the other three detainees were present for at least one of the pretrial sessions, Dorda told Human Rights Watch that the prison authorities failed to bring him to the court for the third and final session even though he is detained in the facility where it was held. Due to lack of public access and records, Human Rights Watch could not determine who among the 37 people charged was in the courtroom for the pretrial sessions.
Human Rights Watch was able to meet with the four detainees individually and in private, without the physical presence of a guard. Human Rights Watch met with Gaddafi for approximately 45 minutes, and with Sanussi, Dorda, and al-Mahmoudi, for 15 to 20 minutes each. Human Rights Watch was unable to verify whether prison authorities were monitoring in any way meetings. All detainees were aware that Human Rights Watch would publish what was said under their names.
Gaddafi and Sanussi said they have been held without access to legal counsel throughout their detention in Libya; Al-Mahmoudi and Dorda said they have had access to their lawyers but were unable to meet with them in private to prepare their defense. Al-Mahmoudi and Dorda said their lawyers had no access to court documents, witness statements, or the evidence against them.
All four described multiple interrogation sessions without legal counsel with people who seemed to be both official and unofficial interrogators. While all four have appeared before a judge at some point, Gaddafi has not appeared before the Tripoli pretrial chamber that charged him with serious crimes. All four said they have not had the chance to review the evidence against them.
A lawyer for one of the detainees said that the judge summoned no witnesses at any of the pretrial sessions, and that lawyers present for other defendants in the group trial, were not able to review the more than 4,000 pages of testimony and 70,000 pages of evidence and statements submitted by the prosecution, though they had made the request.
Sanussi, Dorda and al-Mahmoudi said they signed statements prepared by their interrogators after a number of interrogation sessions, but did not have the chance to review them for accuracy. Gaddafi said that prosecutors had coerced him into signing multiple confessions.
Despite the numerous challenges the Libyan government faces, it should seek to provide Gaddafi and Sanussi with immediate access to a lawyer of their choosing, and ensure that all four have unfettered and privileged access to their legal counsel and a meaningful opportunity to confront the evidence against them, Human Rights Watch said.
During a court session on January 15 relating to one of the cases against him, Dorda alleged that he was beaten and injured by an unidentified person in his prison cell at Al-Hadba. Human Rights Watch spoke with family members who attended that court session and reviewed a complaint about the incident that Dorda’s lawyer submitted to the General Prosecutor’s Office demanding an investigation.
Libyan authorities should immediately and thoroughly investigate Dorda’s serious allegations of ill-treatment, Human Rights Watch said.
“Under these circumstances, it’s hard to imagine how any of these men can have a fair trial in Libya,” Houry said. “Libya has done little to provide even a basic modicum of due process rights for these detainees, who, like thousands of others detained since the uprising, have been held in detention with no meaningful access to a lawyer or a judge.”
Under Libya’s Code of Criminal Procedure, a detainee has the right to a lawyer during investigation if he asks for one. In addition, the code stipulates that the pretrial chamber must appoint a lawyer for the defendant, should he not have elected one, if the chamber remits the case to trial. If a defendant is not able to appoint a lawyer then the court must appoint one for him. Libya’s interim Constitutional Declaration of August 3, 2011, provides for a “fair trial at which [the accused] has the guarantees necessary for exercising his right of defense.”
International standards, including the United Nations Basic Principles on the Role of Lawyers, require giving defendants prompt access to a lawyer, no later than 48 hours after arrest, and adequate opportunities to […] communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality […].”
International law prohibits anyone from being compelled to testify against himself or to confess guilt. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which Libya ratified in 1970, affirms fair trial rights and states that no one should be “compelled to testify against himself or to confess guilt” should criminal charges be determined against him. The ICCPR also requires Libya to ensure that anyone detained is brought promptly before a judge or equivalent.
“All detainees in Libya, including former Gaddafi officials, deserve their full due process rights, including access to a lawyer of their own choosing,” Houry said. “The Libyan government is undermining any possibility that it will try these men fairly by not abiding by basic Libyan and international due process guarantees.”