REPORT ON THE TRIAL OF 37 FORMER MEMBERS OF THE QADHAFI REGIME (CASE 630/2012) 21 February 2017 United Nations Support Mission in Libya Office of the United Nations High Commissioner for Human Rights Report on the trial of 37 former members of the Qadhafi regime (Case 630/2012) Table of Contents 1 Introduction ............................................................................................................................. 1 2 Executive Summary ................................................................................................................ 1 3 Mandate and methodology ...................................................................................................... 5 4 Background ............................................................................................................................. 6 4.1 The 2011 uprising and armed conflict .............................................................................. 6 4.2 Security, political and judicial developments .................................................................. 8 4.3 The international obligations of Libya ........................................................................... 10 4.4 The International Criminal Court ................................................................................... 11 4.5 The criminal justice system in Libya ............................................................................. 13 5 The Accusation File of the prosecution and the decision of the Accusation Chamber ........ 16 5.1 The Accusation File of the prosecution .......................................................................... 16 5.2 The decision of the Accusation Chamber ...................................................................... 18 6 The accused and the charges ................................................................................................. 19 7 Composition of the Court and location of the trial ............................................................... 21 8 The trial: from the investigation to the verdict ..................................................................... 22 8.1 Prohibition of arbitrary detention and the right to judicial review of the detention ....... 22 8.2 Prohibition of torture and other ill-treatment ................................................................. 26 8.3 The right not to be compelled to confess guilt or incriminate oneself ........................... 31 8.4 The right to be informed promptly and in detail of the charges ..................................... 32 8.5 The right to a public hearing .......................................................................................... 34 8.6 The right to be represented by counsel ........................................................................... 36 8.7 The right to adequate time and facilities for the preparation of defence ........................ 39 8.8 The right to call and examine witnesses ......................................................................... 42 8.9 The right to be tried in one’s presence ........................................................................... 45 9 Verdict and sentencing .......................................................................................................... 47 10 Cassation and the right to appeal .......................................................................................... 50 11 Decisions of international and regional human rights mechanisms ...................................... 52 11.1 The United Nations Working Group on Arbitrary Detention ..................................... 52 11.2 The African Commission and the African Court on Human and Peoples’ Rights ..... 52 12 Conclusion and recommendations ........................................................................................ 54 Annex I: Defendants, their functions, places of detention and verdict ......................................... 57 1 Introduction This report is published by the United Nations Support Mission in Libya (UNSMIL) in cooperation with the Office of the United Nations High Commissioner for Human Rights (OHCHR). The report provides an assessment of the trial, held between March 2014 and July 2015, before the Tripoli Court of Assize, of 37 members of the Qadhafi regime accused of committing crimes during the 2011 uprising and armed conflict. The trial is currently before the Criminal Chamber of the Supreme Court as a court of cassation (“Court of Cassation”). This report assesses the trial before the Court of Assize in light of Libya’s obligations under international human rights law and standards and Libyan legislation, and on the basis primarily of monitoring conducted by the Human Rights, Transitional Justice and Rule of Law Division of UNSMIL and discussions held with Libyan officials and experts. 2 Executive Summary On 28 July 2015, the Tripoli Court of Assize issued its judgment in Case 630/2012 involving 37 leading figures of the regime of Colonel Muammar Qadhafi on trial on charges linked to the attempted suppression of the “17 February Revolution.” The Court sentenced to death by firing squad nine defendants, including Muammar Qadhafi’s son, Saif al-Islam Qadhafi; former intelligence chief, Abdullah al-Senussi; and former Prime Minister, Al-Baghdadi al-Mahmudi. The Court handed down life sentences to eight other defendants, and prison sentences ranging from five to 12 years to 15 others. Four defendants were acquitted of all charges and one was referred to a mental health institution. The Court also declared Saif al-Islam Qadhafi and five others to have been tried in absentia, paving the way for their retrial. The trial, which commenced on 24 March 2014, comprised of 25 sessions, held in a courtroom within the Al-Hadhba compound, which hosts the Al-Hadhba Correction and Rehabilitation Institution (Al-Hadhba prison), where the majority of defendants were detained during the trial. The defendants faced a wide variety of charges related to the killing of civilians, ordering the shooting of protesters, incitement to civil war, incitement to rape, arbitrary deprivation of liberty, distribution of drugs, repression of political rights, misuse of public money, booby-trapping vehicles and preparation of a plan for blowing up prisons, among other offences. UNSMIL and OHCHR call for the bringing to justice of all perpetrators of serious violations and abuses of human rights. Trials should be conducted fairly in full respect of due process to attain their legitimate objective to deliver justice. The trial in Case 630/2012 represents so far the most prominent effort by the Libyan judiciary to bring high-profile former regime officials to account for crimes that also amount to gross human rights violations committed during the 2011 uprising and armed conflict. The context of ongoing armed conflict and political polarization presented clear challenges to the conduct of the trial. The trial of Case 630/2016 represented significant progress compared to the trials held under Muammar Qadhafi’s regime as well as an unprecedented opportunity to contribute to the historical record of the 2011 Revolution. 1 However, this opportunity for justice and truth was undermined by serious due process concerns during the pre-trial phase and the trial proceedings. UNSMIL and OHCHR find that the proceedings in the trial of Case 630/2012 fell short of international standards for fair trial as well as Libyan law in some respects. These concerns also illustrate major flaws in the criminal justice system that need to be addressed through legislative and institutional reform. The trial took place inside the Al-Hadhba compound. The compound is controlled by an armed group that was opposed to the Qadhafi regime, creating an intimidating environment for defendants and their families, as well as their lawyers. Access to the Court was controlled by prison staff who, on a number of occasions, hindered entry for observers, media, and defendants’ relatives. Many of the defendants were apprehended in the wake of the taking over of Tripoli by fighters opposing the Qadhafi regime (“thuwwar”) in August 2011 without warrant. They were initially held by a multitude of armed groups for prolonged periods of time, in some cases nearly two years, before being brought before the public prosecution exercising the functions of an investigating judge. As such, their right to prompt judicial review of their detention was violated, even by making allowance for the months of the armed conflict in 2011. Many of the defendants were held in prolonged incommunicado detention, without access to their families or lawyers, and often in isolation, including at unofficial detention facilities, amidst allegations of torture and other ill-treatment. Of major concern are reports that initial interrogations of suspects were carried out by members of armed groups and other non-judicial actors, without the presence of lawyers, before the defendants were brought before the prosecutor. The Court dismissed arguments linked to the illegality of arrest, detention and interrogation procedures and the prosecutor gave assurances that he conducted new interrogations without any coercion and without relying on any initial interrogation records of armed groups. He also told UNSMIL that defendants who complained about torture did not say they confessed as a result of torture. While noting the public prosecution’s assurances, the circumstances of detention in the hands of armed groups and the