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Special Report on the Independence of the Judiciary and the Role of the Prosecutors and the Military Justice System in Lebanon


On May 27, 2004, regular contingents of the Lebanese Army engaged, in a poor Southern neighborhood of Beirut, demonstrators who were participating in protests during the national general strike called by the General Labor Union. As a result, five civilians were dead, dozens of civilians suffered bullet wounds and 109 persons were arrested. Most of the detainees were prosecuted before military justice. A nearly equal number of non-detainees were also prosecuted. On June 15, 2004, the chief public prosecutor before the court of cassation, Adnan Addoum, submitted a written report on the events to the president of the Republic, Emile Lahoud and the council of ministers. The report was co-signed by Jean Fahd, the military prosecutor general, and Brigadier Nabil Ghaferi, commander of the military police. Apparently, Addoum, Fahd and Ghaferi constituted an ad hoc committee. The basis and terms of reference of this committee, if any, remain unknown. The report was leaked to the press which published it on June 20-21, 2004.

On June 23, 2004, Addoum gave a televised press conference at his office at the palace of justice, Beirut. His statements in the report and at the press conference give cause for concern as regards the lack of recognition of the rule of law and the dim future for democracy in Lebanon.

In this special report, the Center for Democracy and the Rule of Law ("CDRL") wishes to address some of the significant issues raised by the sayings of chief prosecutor Addoum.

The Addoum Report of June 15, 2004

The newspapers that published the report called it a "judicial report". The report describes in great detail the official version of the events of May 27, 2004, and depicts the demonstrations as riots. The report asserts that the high command of the Lebanese army ordered the twelfth brigade to maintain order during the national strike of that day in Beirut and its southern suburbs, for the purpose of protecting government buildings, preventing riots, securing all roads and arresting violators. The army's orders were based on a council of ministers decision that dates back to 1991 assigning to the army the task of keeping order in Greater Beirut, quelling all violations by civil or military elements and preventing any unlicensed serious demonstrations or gatherings.

The report concludes that the army contingents involved in the said events were on the defensive, that the soldiers acted in self-defense and that it was not possible to determine the identity of the soldiers who fired the shots that resulted in the deaths and injuries. It found no evidence that any of the demonstrators fired on the army.

Finally, the report reached the following conclusion:

"The facts proved that security is coherent and under control, and that it is not easy to break it. The active security forces that control security demonstrated noticeable strength in the capacity to extinguish any fire that infringes upon internal and national (meaning Pan-Arab) security."

The Press Conference of June 23, 2004

The chief public prosecutor before the court of cassation addressed the following main issues:

A. Independence of the judiciary and the role of the prosecutors.

B. Detention of convicts beyond sentences served.

C. Billboard advertisement and the respect for freedom of expression.

Each of these issues will be addressed as follows. The issue of the role of the military justice will also be addressed.

A. Independence of the judiciary and the role of the prosecutors

A.1. Throughout his press conference, Addoum spoke repeatedly on behalf of the judiciary, reflecting the extent of his dominant role within the Lebanese justice system. Following, for example, are some quotes from his statements on the judiciary:

"We must say that the judiciary is an independent power and the constitution has consecrated this fact."

"The judicial power is independent of the executive power and does not report thereto."

"As to the judiciary I reiterate, affirm and say it is an independent power that, in the final result, is subject to its conscience and the law'

"The judiciary does not look the other way."

"The Lebanese judiciary has no problem with any subject."

"The problem of the judiciary is chronic and it may not be tamed. It is not subordinate to anybody but is an independent power that the higher judiciary council manages its affairs and the judges, thank God, are independent."

"The public prosecution operates under the supervision of the minister of justice."

"The judiciary informs the (executive) power."

"It was written and signed by the committee that consists of me, the military prosecutor general, and the commander of the military police."

A.2. The Constitution and the statutes provide, with reference to the judicial power, the judiciary and the chief public prosecutor, as follows:

The Constitution.

Article 20 of the Lebanese Constitution ("LC") reads:

"The judicial power shall be exercised by the courts of different instances and competences in a system provided by law whereby the judges and the litigants shall have the necessary guarantees.

The conditions of judicial guarantees shall be provided by law. All rulings and decisions by all courts shall be issued and enforced in the name of the People of Lebanon."

Legislative Decree No. 150/1983 known as the Code of the Justice Judiciary ("CJJ").

Article 4 CJJ reads:

"The higher judiciary council shall attend to the proper conduct of the judiciary, its dignity and independence, and the proper conduct of business in the courts and make the necessary decisions in this regard."

Article 9 CJJ requires that all the decisions of the higher judiciary council ("HJC") be delivered to the minister of justice as soon as they are adopted. The chief public prosecutor before the court of cassation is, ex officio, vice chairman of the higher judiciary council of which the first president of the court of cassation is, ex officio, the chairman.

Code of Civil Procedure ("CCP").

Article 1 CCP provides as follows:

"The judiciary is a power (authority) independent from other powers (authorities) in the examination and resolution of lawsuits. Its independence shall not be limited except as provided in the constitution."

Code of Penal Procedure ("CPP").

CPP embodies rules of procedure before the "penal judiciary", i. e. penal courts, or leading thereto. Article 6 CPP entrusts public prosecutors with the function of prosecuting public actions. A public action may only be brought against the alleged perpetrators of crimes with the object of subjecting them to penalties. CPP does not call prosecutors judges but merely prosecutors. The powers of the chief public prosecutor consist of representing prosecution before the court of cassation and supervising lower ranking prosecutors in the conduct of public actions. His relationship with the minister of justice is mentioned only in Article 14 CPP which permits the minister to request him to initiate prosecution with respect to crimes of which the minister becomes aware.

A.3. The "penal judiciary" is an indivisible part of the "justice judiciary". Justice judiciary is independent of administrative justice, military justice, a large number of special courts and commissions, religious courts, and the constitutional council.

A.4. In Lebanon, prosecutors are appointed from among judges. They are often reassigned from, and back to, courts. So technically, they are members of the "judiciary." This is the main source of the confusion between the role of the prosecutor and the role of the judge. Addoum was briefly president of the criminal tribunal of Mount Lebanon before his appointment to his present office nearly eight years ago. But he continues to call himself a judge. Other, lower ranking prosecutors, do the same.

A.5. What enhances the confusion is the use the statutory term "judiciary" as synonymous with the constitutional term "judicial power." The constitution does not use the term "judiciary". It is clear from the constitution that judicial power is not a body but simply a power that may be exercised by any duly competent court or single judge. The most significant criterion to distinguish who my exercise the judicial power and who may not is the ability to make rulings and decisions in the name of the People of Lebanon.

Like all prosecutors, Addoum may not exercise this power. A prosecutor is a public attorney who prosecutes and argues public actions before a court that has the ability to exercise the judicial power.

A.6. The judiciary is not a body equivalent to the bodies of executive or legislative branches of government in that the executive power can only be exercised by the council of ministers, not by any single minister, and the legislative power can only be exercised by the parliament, not by any member of parliament. The term "judiciary" does not describe a body such as the council of ministers or the parliament. It is used to describe the totality of judges in the same sense as the term "administration". When the law refers to the independence of the judiciary, it can only mean the independence of the judges. Prosecutors, too, must be independent. The constitution does explicitly provide that the judicial power, or any other constitutional power, shall be independent, but the principle of independence, through the separation of powers, is an established constitutional rule.

A.7. When Addoum accepted to become part of an ad hoc committee, that also included a military commander and the military prosecutor general, who both fall under the authority of the minister of defense, in preparing and submitting a report to the council of ministers, he proved that he cannot be a member of a judiciary that may exercise the constitutional judicial power. At the same time, he compromised his independence as a prosecutor by reporting to the executive and not the judicial branch of government. When Addoum unlawfully reports to the president or the council of ministers, which he ought not to do, he is bound to receive instructions therefrom. Like all prosecutors, Addoum's sole duty is to report to the court or courts of competent jurisdiction in the context of instituting or prosecuting public actions.

A.8. Addoum's role in authoring the report and his press conference are serious indicators of the dangerous overlap of the prosecution's role over the role of the courts to the extent that may be clearly seen from Addoum's own example. A judiciary dominated by prosecutors is a threat to the rule of law and democracy.

A.9. Most countries strictly separate the two roles. The prevailing international point of view on this issue supports the separation of the prosecutors from the judiciary in order to avoid any such overlap or confusion. Even where prosecutors are technically recognized as judges they are not considered part of the judiciary. In France there is currently a wide and serious discourse over this issue.

A.10. The confusion of the two roles is a prime source of public dissatisfaction with the judicial system. As they wrongly believe themselves to be judges, prosecutors chronically exceed their authority and overstep their boundaries. They often assume the role of decision-making by wrongly ordering arrests, issuing eviction orders, and getting involved in property and other civil disputes. A large number of their directives to the police is verbal. During investigations by investigation judges and examination in penal courts, prosecutors are generally privy to information and documents that are not made available on equal footing to defense attorneys. Secrecy is generally used to deny the rights of defense.

A.11. CDRL supports the strict separation of prosecutors from the judiciary. This should also apply to investigating judges. When judges are appointed prosecutors they should not be reassigned to courts in the future. Courts and investigating judges should maintain equal distances to prosecutors and defense attorneys in strict observance of the rule of equality of arms which is one of the pre-requisites of the respect for the rights of defense. Findings and investigations of prosecutors and investigating judges should not be used other than for the purpose of indictment and should not be admissible as evidence in trials.

A.12. CDRL further believes that prosecutors should not have the power to order detention, or other measures that affect personal or real property, either verbally or in writing. Such an authority rests exclusively with judges who are entitled to issue their decisions in the name of the People of Lebanon.

A.13. Moreover, prosecutors should not sit on HJC under any pretence. CDRL believes that the duties and functions of HJC council should come under close scrutiny in view of reforming this administrative body.

A.14. It is terrifying to hear a prosecutor in high position, such as Addoum, speak officially in terms of maintaining "national and pan-Arab security". This language cannot be found in legal dictionary and is reminiscent of the rhetoric of officials of the former Soviet and other Eastern European regimes. Addoum had no business, in the report of June 15, 2004, using such language or coming to such conclusions.

B. Detention of convicts beyond the sentence served

B.1. Addoum acknowledged casually that hundreds of foreign imprisoned convicts finish serving their sentences; nevertheless, they are not released but routinely and indefinitely kept in detention at Roumieh and other jails, and that this abuse led recently to a hunger strike. He further acknowledged that those illegal detainees are subsequently delivered to the Directorate of Surete General which maintains its own detention centers.

B.2. This is the first public acknowledgment by a high Lebanese government official of the abuse to which many foreign nationals are routinely subjected in Lebanon. The fact is that they are held captive until they produce through their own means the cost of airline tickets home, then they are deported. Needless to say, the prisoners generally have no means to speak off, their meager possessions are confiscated and they have no direct access thereto, and their opportunity to raise money depends on their ability to work. Hence a large number of them become permanent hostages.

B.3. It is beyond any question that the government owes every prisoner the duty to release him upon full service of his sentence, and that it may not keep him in detention beyond the term of such sentence.

B.4. Addoum's statement with regard to the unlawful imprisonment of foreigners, and his clear approval of such a highly questionable practice, cannot be reconciled with Article 367 Penal Code which make it a major crime for any civil servant to detain a person other than where provided by law, and Article 368 Penal Code which punishes prison directors and guards with a jail term of one to three years for keeping a person in detention beyond the term of his sentence.

B.5. CDRL wishes to remind the Lebanese Government that foreign nationals are fully entitled to equal protection of the law and that they, too, have human rights that must be fully protected.

B.6. CDRL calls for the immediate and unconditional release of all persons, Lebanese and foreign, who are being imprisoned unlawfully, i. e. beyond the term of their respective prison sentences.

C. Billboard advertisement and the respect for freedom of expression

C.1. Addoum mentioned in his press conference that the heads of religious establishments had asked him to take action with respect to billboards displaying advertisements that depict uninhibited pictures. He asked the owners of the billboards to remove those ads.

C.2. Again Addoum is playing the role of judge when he is only a prosecutor. He must respect the presumption that the ads are protected by the right of free speech. If someone wishes to challenge such a presumption, the challenger must first file action before a court of competent jurisdiction so that each case is judged on its own merits in a way that balances the right of free speech and the duly proven community standards of morality.

C.3.The heads of religious communities have long yielded much influence in censoring publications and the arts in Lebanon. Such a role is in direct conflict with the rule of law and the constitutional separation of state and religion and cannot be tolerated in any democratic society.

D. The role of military justice

D.1.The role of the military justice in association with the events of may 27, 2004, is taken for granted throughout the report and the press conference. This role is accented by the signature of the military prosecutor on the report. This means that the indictments will be issued in military justice, will be confined to civilians, and will not include members of the military. It also means that the survivors and the families of the victims of the events of May 27, 2004, will have no visible recourse.

D.2.The court where the trial of the indicted civilians will take place will be the Permanent Military Court or one of many lower military courts. It is not possible to bring personal action for damages in such courts. These courts are dominated by military officers with no legal training. The military justice system always has compulsory jurisdiction in such events, whether the forces involved are military or are part of the police or the gendarmes. In all events, military and police personnel enjoy special immunity against prosecution that can only be lifted by their respective top commander.

D.3. The only recourse for the survivors and the victims' families would be civil courts in costly actions against the state for damages. A Beirut judge recently rejected one such case out of hand.

D.4. The military justice system in Lebanon is intrinsically unfair and does not comply with normal legal standards internationally recognized. Due to the compulsory jurisdiction of this system, the survivors of the events of May 27, 2004, and the families of the victims are effectively denied the right to use normal penal courts against the alleged perpetrators of the crimes causing scores of deaths and injuries.

D.5. CDRL calls for the immediate abolishing of the military justice system in Lebanon with jurisdiction over civilians, and the lifting of immunity from prosecution enjoyed by the police and the military personnel. Survivors and families of the victims of the events of May 27, 2004, should have the opportunity to fully exercise their right to seek redress in regular courts. 


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