Difference between revisions of "Lebanon"
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== Introduction ==
== Introduction ==
Latest revision as of 13:10, 7 September 2018
- 1 Introduction
- 1.1 1. Quick summary of the context
- 1.2 2. Type of legal system
- 1.3 3. The legal aid situation in the country
- 1.4 4. Sources of defendant’s rights
- 2 Pre-trial Procedures
- 3 Rights of the accused at all time
- 4 Rights in prison
- 5 Court Procedures
1. Quick summary of the context
Lebanon is a Middle-Eastern country, located on the eastern shores of the Mediterranean Sea. It was established after the first world war as a distinct part of the French mandate on Syria. Since it became independent in 1943, Lebanon has been a “parliamentary democratic republic based on respect for public liberties […] social justice and equality of rights and duties among all citizens without discrimination.” Lebanon is home to seventeen recognised religious groups (al-tawa’if), among which Sunni Muslims, Shia Muslims and Maronites Christians, are the most numerous ones. Political power is divided between all those sects according to their respective shares in the Lebanese population. Lebanon has thus established itself as an example of coexistence, although tension is always latent.
The official language of Lebanon is Arabic, although French (considered to be an alternative official language) and English are widely spoken. The Lebanese population has reached 4 million; Beirut, Lebanon’s capital, is also the country’s largest city. Lebanon has a very strong education system and is home to some of the best universities in the Middle-East. It is well-known for its liberal economy and its respect of freedoms of the press and of speech.
Since its foundation, Lebanon has suffered from chronic political instability and monopolization of public affairs by traditional chiefs and families; foreign influence on local politics has always been very strong. Between 1975 and 1990, the civil war has weakened the Lebanese state and destroyed most of the country. Reconstruction was then hampered by a never-ending economic crisis, political feuds and, as from 2011, the Syrian civil war. In addition of hosting approximately 500.000 Palestinian refugees since 1948, Lebanon now offers a shelter to more than a million Syrian refugees. Lebanon also suffers from endemic corruption as well as widespread mismanagement of resources.
2. Type of legal system
The Lebanese legal system is considered to be a civil law one. The Lebanese legislature relies on its own codes, most of which are influenced by French law, and a mixture of Ottoman legal principles and Islamic law. However, following established precedents is not uncommon amongst courts in Lebanon.
Limited autonomy of the religious communities The Lebanese constitution provides for each religious community the opportunity to adopt its own “personal status law” (qanoun al-ahwal al-chakhsiyya), which accounts for the rules governing family, marriage, divorce, heritage, etc. Each sect’s personal status law is enforced by a court whose members are clergymen. This fractures the country’s population in sectarian groups, and results in different rules and different procedures being applicable to each community. Critics of this system pretend that it contradicts the principle of equality between all citizens embodied in the constitution, while its supporters argue that it is the best way of ensuring that the interests of each community are respected
The structure of the Lebanese judiciary
The competence and jurisdiction of each of the following is defined by detailed conditions.
- Ordinary courts: they have jurisdiction over civil and criminal cases.
- Civil courts. There are three levels of jurisdiction:
- The First Instance Courts (mahakem al-daraja al-‘oula).
- The Courts of Appeal (mahakem al-isti’naf).
- The Court of Cassation (mahkamat al-tamyiz), which decides on law and not on factual issues.
- Criminal and penal courts. They are four levels of jurisdiction:
- The Single Criminal Judge (or Penal Single Judge, al-qadi a-mounfared al-jiza’i).
- The Court of Appeal (mahkamat al-isti’naf).
- The Assize Court (mahkamat al-jinayat).
- The Criminal chamber of the Court of Cassation (or Penal Cassation Court, mahkamat al-tamyiz al-jiza’ia).
- Administrative courts:
- The Administrative Tribunals (al-mahakem al-‘idariya).
- The State Council (Conseil d’État, majles shoura al-dawla), which has six chambers. It acts as an appeal authority, cassation authority or first instance and final court. It has jurisdiction on all the disputes that arise between the State and individuals or legal persons in the administrative domain. It has advisory power on administrative and legislative matters (it can be consulted and give opinions on, inter alia, draft laws, legislative and organizational decrees).
• Special and exceptional criminal courts.
- Military courts. They are under the authority of the ministry of defence, which is pointed out as being a flagrant violation of separation of power. Despite their name, those tribunals are often used to trial civilians. They have jurisdiction over inter alia crimes of spying, treason and illegal contact with Israel. They comprise of:
- The Single Military Judges (al-qoudat al-aaskariyoun al-mounfaridoun).
- The Permanent Military Court (al-mahkama al-aaskariya al-da’ima).
- The Military Court of Cassation (mahkamat al-tamyiz al-aaskariya).
- The High Court of Justice (or Supreme Council for prosecuting presidents and ministers, al-majles al-‘aala li mouhakamat al-ru’asa’ wal wouzara’), which was has an exclusive competence to judge presidents, prime ministers and ministers. It has never been active.
- The Court of Justice (al-majles al-aadli). It is the highest court of Lebanon; its competence covers any internal or external security breach to the Lebanese State. Its decisions cannot be appealed and only the Lebanese government has the right of referral to this court. These two features are being criticised as being in violation of the principle of the double degree of jurisdiction and of the principle of separation of powers respectively.
- Other courts: Press Offenses Court (mahkamat al-matbuaat), Monopoly and Fraud Court (al-mahkama al-nazira fi qadaya al-ghash wal ihtikar), Juvenile Court (mahkamat al-ahdath).
Apart from the military courts, two other kind of courts do not fall under the authority of the ministry of justice:
- The Constitutional Council (al-majles al-doustouri). It is not part of the judiciary. It is entitled to determine the constitutionality of legislation, which it can repeal. Only the president of the Republic, the prime minister or ten members of parliament are entitled to challenge the constitutionality of laws (as well as the heads of the recognized religion when it comes to laws relating to personal status or religion).
- The religious courts, or Personal Status Courts (mahakem al-ahwal al-chakhsiyya). Each recognized religious community (ta’ifa) has its own courts. These courts have jurisdiction over all matters that fall under the community’s personal status law (qanoun al-ahwal al-chakhsiyya).
Independence of the judiciary
The Lebanese constitution guarantees separation of powers (in addition to their balance and the coordination between them) and the independence of the judicial power. It also specifies that judicial guarantees and their limits are to be defined by the law.
This independence is often at issue, judges and magistrates being nominated by the government (council of ministers). Political interferences in the judiciary process are quite common, and the power of the executive is growing stronger at the expense of judicial independence. A report called “The Independence and Impartiality of the Judiciary in Lebanon” published by the Euro-Mediterranean Human Rights Network (EuroMed Rights) pointed out that “corruption can lead to the mere subordination of judges, or to the manipulation of judicial appointments, salaries and employment conditions”. Bribery of magistrates, lawyers or judges is a common feature. The presence of exceptional and military courts also diminishes the preponderance of the rule of law within the judiciary.
3. The legal aid situation in the country
Lebanon is a party to the International Covenant on Civil and Political Rights (1966), which it has ratified in 1972. The Covenant is therefore binding and applicable to Lebanon as part of the hierarchy of the law. Article 14 paragraph 3d of the Covenant provides that: “In the determination of any criminal charge against him, everyone shall be entitled to […] defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”.
Article 3 of the Covenant, as well as articles 2 and 15 of the Convention for the elimination of all forms of discrimination against women (1979), to which Lebanon has acceded in 1997, require that women get access to the same legal aid as men, and that legal remedies are provided in an equal manner.
As a member of the United Nations, Lebanon has accepted non-binding declarations, principles and resolutions adopted by the General Assembly, such as the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and the UN Basic Principles on the role of Lawyers.
Legal aid in the Lebanese legislation
Civil cases: the code of civil procedure (qanoun ‘oussoul al-mouhakamat al-madania, articles 425 to 441) grants legal aid to all persons “unable to pay the costs and fees of the proceedings.” All Lebanese citizens, as well as foreigners who legally reside in Lebanon and legal entity, can benefit from legal aid in any case if they have the right to prosecution and if they provide the proof of their impoverishment. A lawyer will then be appointed by the president of the concerned bar association (either the Beirut bar association or the Tripoli bar association) in order to represent the individual who was granted legal aid before the courts. This legal assistance is free; all other expenses resulting from the trial are borne by the State Treasury.
More information about State sponsored legal aid can be found on the website of the Tripoli Bar Association (naqabet al-mouhamin fi Trablos, only in Arabic).
Penal cases: article 78 of the code of criminal procedure (qanoun ‘oussoul al-mouhakamat al-jiza’ia) provides that if a defendant is unable to appoint a lawyer, the judge is compelled either to designate one or refer to the president of the concerned bar association (Beirut or Tripoli).
NGOs and pro bono legal aid
Some NGOs also provide pro bono legal aid. For instance, the Lebanese Centre for Human Rights (CLDH, Centre libanais des droits humains) runs programs aiming to dispense legal assistance to vulnerable inmates in the Lebanese prisons and legal counseling to vulnerable individuals. The Association justice et miséricorde (AJEM, jamiiyat aadel wa rahma) offers legal counseling to prison inmates and free follow-up and defence for those who can’t hire a lawyer.
Other NGOs are specialised in given fields. The Rights’ Pioneers (Rouwad al-houqouq) has dedicated its work into legal advices to refugees, asylum seekers and stateless persons, which includes representation before courts and awareness raising. The Lebanese Transparency association has launched an initiative called Lebanese Advocacy and Legal Advice Centre, which aims to inform citizens about their legal rights and gives legal supports to victims of corruption. The Caritas offices in Lebanon give free legal advice to migrant workers.
Finally, the United Nations Relief and Work Agency for Palestine Refugees in the Near East (UNRWA) provides legal assistance to Palestinian refugees in Lebanon.
4. Sources of defendant’s rights
National Sources of Defendant’s rights
The Lebanese constitution was adopted in 1926; it was later amended more than once, but the only important amendments are those that occurred when Lebanon became independent, in 1943, and at the end of the civil war, in 1989 (Ta’ef agreement). The second chapter of the first part of the constitution establishes the “rights and duties” of the Lebanese citizens (articles 6 to 15). The most important provisions are the following:
- Article 7, which states that all citizens are equal before the law.
- Article 8, which protects individual liberty and forbids arbitrary arrests, in addition to establishing the principle of legality in criminal sentences (“nullum crimen sine lege”, “nulla poena sine lege”).
- Article 13, which protects the freedom of speech, the freedom of the press, the freedom of assembly and the freedom of association.
International Sources of defendant’s rights
The Constitution of Lebanon recognizes the supremacy of international instruments over domestic law; therefore, Lebanon has an obligation to implement procedures that respect the principles found in international treaties that have been ratified.
As a member of the United Nations, Lebanon is bound by the Universal Declaration of human rights of 1948. Although this declaration is not a treaty – it was adopted as the Resolution 217 of the United Nations General Assembly, whose resolutions are not bindings – most legal scholars consider that it became part of customary international law.
The following international treaties are applicable to Lebanon (with dates of ratification/accession and entry into force):
- Convention of the 1st March 1954 on civil procedure (accession: 9th November 1974; entry into force: 7th January 1975).
- International Convention on the elimination of all forms of racial discrimination of 1965 (ratification: 12th November 1971; entry into force: 12th December 1971).
- International Covenant on economic social and cultural rights of 1966 (accession: 3rd November 1972; entry into force: 3rd January 1976).
- International Covenant on civil and political rights of 1966 (accession: 3rd November 1972; entry into force: 23rd March 1976).
- Convention on the elimination of all forms of discrimination against women of 1979 (accession: 16th April 1997; entry into force: 21st May 1997).
- Convention against torture and other cruel, inhuman or degrading treatment or punishment of 1984
- Convention on the Rights of the Child of 1989 (ratification: 14th July 2000; entry into force: 18th November 2002).
1. Police procedures
The Internal Security Forces (ISF, Qiwa al-amn al-dâkhili, Forces de Sécurité de l’Intérieur) are in charge of preserving order and security and protecting the citizen’s rights.
Lebanese citizens can file a complaint at the General Inspectorate (al-moufatichiya al-aâma), at the General Directorate of Internal Security Forces (al-moudiriya al-aâma li qiwa al-amn al-dâkhili), at any ISF local station, by post, e-mail, or on the ISF website. The complaint may be filed by the complainant himself, by his legal representative or by his guardian/tutor.
More information can be found on the website of the ISF.
Arrest, Search and Seizure Laws
The investigating judge issues a summons to the defendant. If the latter fails to appear before the judge or if the judge fears that he may abscond, he may issue an enforceable summons, in which he orders to the security forces to arrest the defendant (article 106 of the Lebanese code of criminal procedure).
Any security force officer charged with the enforcement of a summons or an arrest order is entitled to enter (between 5a.m. and 8p.m.) the private residence where the defendant is suspected to have sought refuge (article 109 paragraph 3 of the Lebanese code of criminal procedure).
The investigating judge may also prohibit the defendant from traveling (article 108 par.3).
• Pre-trial detention
Article 8 of the Lebanese constitution protects individual liberty. According to this article: “No one may be arrested, imprisoned, or kept in custody except according to the provisions of the law”.
Articles 367 and 368 of the criminal code punishes civil servants and prison directors and guardians if they arrest or detain and individual beyond what is authorised by law or beyond the time prescribed or if they admit to prison individuals without arrest warrants or judicial decisions. Article 569 punishes “anyone who deprives another person of his individual liberty by kidnapping or by any other means”.
When arrested, the defendant must be interrogated by the investigating judge within twenty-four hours. When this delay expires without any interrogation taking place, the defendant must be released. If he is not released, the detention must be deemed arbitrary, and the responsible officers can be prosecuted (article 107 par.2 of the Lebanese code of criminal procedure).
After questioning the defendant, the investigating judge may issue an arrest order, under some conditions (article 107 par.3). The arrest order shall be justified (material and factual ground); provisional detention must be “the only way to preserve evidence or incriminating material traces, to prevent the coercion of witnesses or victims, or to prevent the defendant from communicating with co-perpetrators, accomplices or instigators”, etc. (article 107 par.4). The defendant may file an appeal against the order of arrest within twenty-four hours, but this doesn’t prevent the enforcement of such an order (article 107 paragraphs 8 and 9).
According to article 108 paragraph 1 of the Lebanese code of criminal procedure, pre-trial detention is limited to two months (renewable once if absolutely necessary) for misdemeanours (except if the defendant had already been sentenced to at least one year in prison). Article 108 paragraph 2 provides that pre-trial detention is limited to six months in criminal matters (renewable once by a motivated decision), with exception of homicides, cases involving drugs, the State’s security or terrorism.
Finally, article 110 lets the investigating judge to withdraw an arrest warrant by taking into consideration the specific circumstances of the accused.
According to the Lebanese code of criminal procedure, the public prosecution office at the Court of Appeal (al-niyaba al-aâma al-isti’nafiyya) has the duty issue search and investigation notices if a person named in a complaint or a suspect cannot be found (article 24 let. d par. 1). This notice expires after ten days, unless extended (article 24 let. d par. 3).
Searches and investigations are also conducted by an investigating judge (qadi al-tahqiq, article 98 par. 1). The search must be conducted in presence of the civil party and the defendant or their respective counsels (article 98 par. 2). Further rules are set out in articles 98 to 105. Any search or investigation undertaken in breach of those rules is considered to be null (article 105 par. 1).
Rules governing the interrogation are set out in articles 74 to 84 of the Lebanese code of criminal procedure.
The defendant has the right to be informed of the charges against him and shall be presented with the evidence in the possession of the investigating judge. The investigating judge shall also inform the defendant of his right to be assisted by a lawyer during the questioning. If the judge fails to do so, the questioning is null (article 76). The defendant can choose to remain silent during the interrogation and has the right to make his statements without any external influence (article 77).
If the defendant refuses to designate a lawyer, or if his lawyer fails to attend to the interrogation, the judge may proceed to the questioning. However, the investigating judge must ask the defendant between each round of questioning whether he still consents to be questioned without the presence of a lawyer; the defendant has the right to communicate freely and secretly with his lawyer (article 79, article 102 par.3). The investigating judge has the right to prohibit communication with a defendant for a period not exceeding five days; this prohibition is not applicable to his lawyer (article 83 par.1). If the defendant is not fluent in Arabic, the investigating judge shall appoint an interpreter (article 81 par.3).
When attending the interrogation, the lawyer has the right to make objections to the way the interrogation takes place and to object to possible breaches of the rules governing the interrogation by the judge (article 81 par.1).
2. Right to Counsel
The investigating judge shall also inform the defendant of his right to be assisted by a lawyer during the questioning. If the judge fails to do so, the questioning is null (article 76 of the Lebanese code of criminal procedure). Article 78 states that the investigating judge must designate a lawyer or refer to the president of the concerned bar association if the defendant is unable to designate a lawyer.
Rights of the accused at all time
1. Criminal Law system
Legality principle and ex-post facto punishment
According to article 8 of the Lebanese constitution: “No offense may be established or penalty imposed except by law”.
Chapter I Section I (articles 1 to 14) of the Lebanese criminal code sets out rules about the temporal scope of application of criminal law. The main rules that prohibit ex-post facto punishments are set out in articles 1, 6 and 12.
- Article 1: “No penalty may be imposed and no preventive or corrective measure may be taken in respect of an offence that was not defined by statute at the time of its commission […]”.
- Article 6: “No penalty may be imposed that was not prescribed by statute at the time of
commission of the offence”.
- Article 12: “No preventive or corrective measure may be ordered save in accordance with the conditions and in the cases provided for by law”.
Presumption of innocence
According to article 14 paragraph 2 of the International Covenant on Civil and Political Rights, everyone has the right “to be presumed innocent until proved guilty according to law”.
Although the Lebanese code of criminal procedure sets rules for more or less every step that is undertaken by any actor, it doesn’t mention presumption of innocence.
Procedure with witnesses
Procedure with witnesses are ruled out at articles 85 to 97 of the Lebanese code of criminal procedure.
The investigating judge is entitled to summon witnesses or suspects who possess in his view information that can assist the investigation (article 86). Each witness is to be interviewed individually. The rules governing the hearing of witnesses are stated in article 87 of the code of criminal procedure. If the witness is not fluent in Arabic, the judge shall appoint an interpreter (article 88).
False testimonies are prosecuted (article 89 of the code of criminal procedure; article 408 of the criminal code). Unless bound by secrecy, a witness is compelled to give his testimony (article 92 paragraph 1 and 95 paragraph 1). If he fails twice to appear before the judge, an enforceable summons can be issued to have him brought before the judge (article 95 par.2).
According to article 37 of the Lebanese criminal code, capital punishment is listed amongst criminal sentences. No death penalty can be enforced before consultation of the pardon commission and of the president of the Republic (article 43).
Lebanon is however considered to be a de facto abolitionist country. Indeed, although courts, especially military courts, continue to sentence the accused to death, no execution has been conducted since 2004.
2. Fair Trial Rights
Right to non self-incrimination
According to article 14 paragraph 3g of the International Covenant on Civil and Political Rights, everyone has the right “not to be compelled to testify against himself or to confess guilt”.
No article of the Lebanese code of criminal procedure imposes on police officers and other officials to inform the detainee of his right to remain silent. According to the report “Guilty until proven innocent – report on the causes of arbitrary arrest, lengthy pre-trial detention and long delays in trial” published by the NGO Alef, this might lead to officials creating “an atmosphere favourable to the suspect’s self-incrimination or the confession of guilt”.
Rights in prison
Right to medical care in prison
The Lebanese ministry of interior appoints a number of doctors for the inspection of prisons. Those doctors have to the obligation to visit prison inmates and proceed to a complete inspection of the prison at least three times a week.
If a prisoner falls ill, the prison governor has to immediately contact the doctor who is competent to treat the prisoner. The doctor has to evaluate the risks of contamination; the ill prisoner can be placed in isolation. If needed, the prisoner can be taken to the nearest military hospital for treatment.
Appeals against judgements and orders of the Criminal Single Judge to the Court of Appeal The right of appeal against judgements issued by the Criminal Single Judge is ruled out at article 208 of the Lebanese code of criminal procedure. Article 212 and 213 define judgements that are open to appeal. Starting from the time of the delivery of the judgement, the delay for filing an appeal is fifteen days for all parties (article 214). The effects of the appeal on the judgement are defined at articles 219 to 232.