[30 June 1994]
* The initial and the additional reports submitted by the Government
of the Libyan Arab Jamahiriya are contained in documents CAT/C/9/Add.7
and Add.12/Rev.1, respectively. For their consideration by the Committee,
see documents CAT/C/SR.93, 130, 135 and 135/Add.2, and Official
Records of the General Assembly, forty-seventh and forty-eighth
sessions (A/47/44, paras. 148-159 and A/48/44, paras. 181-207).
1. The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment places the Jamahiriya, like other States parties to that
Convention, under an obligation to submit a periodic report on the
measures they have taken to give effect to the provisions of that
Convention. This obligation by States parties helps the Committee
not only to ascertain whether national legislation is consistent with
the provisions of the Convention but also to rectify any shortcoming
or defect that might be found in this regard.
2. The Jamahiriya
announced its accession to the Convention on 25 April 1989 and submitted
a report on 12 April 1991 concerning the measures that it had taken
at the national level to apply the provisions of that Convention.
It subsequently submitted a verbal report on 14 November 1991.
of these practical steps were then incorporated in a supplementary
40-page written report to which the relevant national legislative
texts were annexed. Your distinguished Committee discussed that report,
on which it expressed the following views:
Committee thanked the Jamahiriya for submitting the supplementary
report on the measures that it had taken.
Committee thanked the head and members of the delegation of the Jamahiriya
for the efforts that they had made to reply to more than 70 questions
concerning the Libyan political and judicial systems, the organization
of the courts, the procedures for investigations, arrests and searches,
preventive measures, extradition, the status of international conventions
vis-à-vis national legislation and the mechanism for their
Committee expressed its view that, on the whole, the Libyan judicial
system was not inconsistent with the provisions of the Convention
against Torture, for the application of which it constituted a relevant
4. In conclusion,
the Committee said that the next periodic report submitted by the
Jamahiriya should contain a textual comparison between the individual
provisions of the Convention and those of Libyan legislation. That
will be done in the present supplementary report. In our opinion,
the previous report contained an adequate study of the Libyan legislative
provisions and compared them with those of the Convention against
Torture. Nevertheless, in the present report we will endeavour to
respond to the distinguished Committee's request within the following
framework: the status of international conventions vis-à-vis
national or domestic legislation and the effects thereof; the legal
structure of the Convention against Torture, which will be divided
into provisions that place the State party under a number of specific
practical obligations, and general procedural provisions; a review
of the provisions of the Convention and their comparison with the
corresponding provisions of Libyan legislation.
legal framework for the application of the provisions of the Convention
in accordance with the Libyan
5. This question
is governed by the status of international conventions vis-à-vis
national legislation in the Jamahiriya and also by the existence of
national legislative texts that are consistent with the provisions
of the Convention against Torture.
A. The status of international conventions vis-à-vis domestic legislation
international convention which the Jamahiriya concludes, to which
it accedes and which is ratified by the basic people's congresses
and published in the Official Gazette becomes binding and must be
put into effect since it is equivalent to domestic legislation that
is binding on the national judiciary from the time of its publication
in the Official Gazette.
7. In accordance
with this principle, the provisions of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment are
binding on the national judiciary and any party concerned has the
right to invoke it and petition the Libyan courts to implement its
provisions. The courts are under an obligation to respond to such
a petition provided that the petition submitted to them is substantiated
by a legal text and that the party submitting it has an interest therein.
This applies to all levels of courts.
there is no inconsistency between the provisions of the Convention
in question and Libyan legislation, consisting in the Penal Code,
the Code of Criminal Procedure, the Civil Code and the Promotion of
Freedom Act, any provision contained in the Convention but to which
no reference is made in a Libyan legislative enactment is binding
on the national courts, as already mentioned.
9. The relationship
between the Convention against Torture and the national legal system
in the Jamahiriya is governed by the following principles:
international convention which the Jamahiriya concludes or to which
it accedes must be put into effect, after ratification and publication
in the Official Gazette, as part of the domestic legislation.
provision of the Convention forming the subject of this report, or
any other convention, for which there is no corresponding or equivalent
legal provision in Libyan law must be put into effect and is binding
on the national judiciary.
party concerned has the right to invoke the provisions of the Convention,
in whole or in part, before the national courts, which have an obligation
to respond to such a petition in accordance with the rules of jurisdiction
and within the framework of the discretionary power legally vested
in them. This is a general principle recognized by all judicial systems
throughout the world concerning the jurisdiction and discretionary
power vested in the judiciary. This principle applies, in particular,
to human rights instruments. Accordingly, international conventions
become binding and enforceable without any need to incorporate their
provisions or texts in similar domestic legislation.
10. In our
opinion, it is essential to incorporate the provisions of the Convention
against Torture in the domestic legislation of States whenever such
legislation takes precedence over the provisions of international
conventions in regard to binding force and applicability before the
national courts. However, this is not the case in view of the attitude
adopted by the Libyan legislature.
11. The principles
to which we have already referred are derived from the direct effects
of the status of international conventions vis-à-vis domestic
legislation in Libya. This is the first aspect, which defines the
legal framework for the application of the provisions of the Convention
against Torture in the Jamahiriya.
12. The second
aspect relates to the existence of domestic legislation that is consistent
with the provisions of the Convention against Torture, as we will
see in the various sections of this report concerning the Penal Code,
the Code of Criminal Procedure, the Civil Code and the Promotion of
Freedom Act, etc.
B. The structure of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
13. The legal
structure of the Convention against Torture consists of a preamble
and 33 articles, all of which are binding on the States parties thereto.
These provisions are divided into: a number of articles that place
the State party under specific practical obligations; and a number
of provisions concerning general procedures. In other words, the Convention
contains both operative and procedural provisions, but they are also
mutually complementary in regard to binding force and the requirement
that they be implemented by every State which accedes to the Convention
provisions of the Convention (Part I) that place the States parties
under practical obligations (the operative provisions)
1 to 16 of the Convention all include provisions through which the
Convention places States parties under a number of practical obligations.
15. For example,
article 1 defines torture as any act by which severe pain or suffering,
whether physical or mental, is inflicted. It emphasizes the intentional
nature of such acts that cause pain and also defines the objective
or purpose underlying the commission of acts of torture. Article 2,
paragraph 1, obliges States parties to take effective legislative,
administrative, judicial or other measures to prevent acts of torture
in any territory under their jurisdiction. Paragraph 3 of the same
article stipulates that a State party to the Convention may not invoke
any exceptional circumstances, such as a state of war or a threat
of war or political instability, etc., as a justification of torture.
Paragraph 3 further stipulates that an order from a superior officer
or a public authority may not be invoked as a justification of torture.
3, paragraph 1, prohibits the expulsion, return or extradition of
a person to another State if the State in the territory of which he
is living has substantial grounds for believing that he would be in
danger of being subjected to torture. Paragraph 2 of the same article
prohibits extradition if the said substantial grounds relate to the
existence in the State concerned of a consistent pattern of gross,
flagrant or mass violations of human rights.
4, paragraphs 1 and 2, place each State party to the Convention under
an obligation to ensure that all acts of torture are offences under
its criminal law and are punishable by appropriate penalties which
take into account their grave nature.
8, paragraphs 1, 2, 3 and 4, speak of extradition for the offences
referred to in the above-mentioned article 4. They lay down the conditions
for extradition and, in that connection, refer to any relevant treaties
between the States concerned. In the absence of such a treaty, the
Convention against Torture stipulates that the question of extradition
should be governed by the legislation of the State to which the request
for extradition is submitted. The Convention may also be considered
as the legal basis for extradition.
19. In this
way, the provisions of articles 1 to 16 place the State party under
a number of practical obligations. It must incorporate them in its
national legislative and judicial systems and take effective administrative
and judicial measures to further the application of the provisions
of the Convention and remove any obstacle impeding the implementation
of its stipulations.
articles together constitute the basis on which States parties are
obliged to respect the provisions of the Convention, incorporate its
provisions in their legislation or consider the Convention as a domestic
legislative enactment that must be applied by the national courts
and judiciary in accordance with the procedures that the State party
follows to vest international conventions with the force of law in
its national legal system.
2. Part II of the Convention (procedural provisions)
17 of the Convention against Torture contains provisions concerning
the procedures for the establishment of the Committee, its designation,
the number of its members, the manner in which they should be elected
and the duration of their membership, etc.
19 speaks of the obligation of States parties to submit to the Committee,
through the Secretary-General, reports on the measures they have taken
to give effect to their undertakings under this Convention. It then
speaks of the Committee's work in this field. A set of practical provisions
of special importance is contained in article 21, paragraphs (a),
(b), (c), (d), (e), (f), (g) and (h).
23. In our
view, it is Part I of the Convention, comprising articles 1 to 16,
on which the comparison between its provisions and those of the domestic
legislation of States parties should be based, since it is the provisions
of Part I which, in general, contain the practical obligations with
which every State party must comply in its domestic legislation and
apply in its national courts.
on the articles in Part I of the Convention does not imply fragmentation
of the Convention or undervaluation of its binding effect. In the
introduction to this report, we indicated that all the provisions
of the Convention, including its preamble, are binding on the State
party. This is a firmly-established principle in such cases. However,
our purpose in making such a division is to achieve a practical benefit
and prove, as we will see, that an actual comparison between the provisions
of the Convention and Libyan legislation shows that they are being
fully applied, for two reasons.
(a) In practice,
there is ample scope for the application of the provisions of the
articles of the Convention for which there are similar corresponding
articles and texts in Libyan legislation. Any gap that might be found
in domestic law or legislation is filled by the provisions of the
Convention, which is binding on the national courts, and any interested
party has the right to invoke or demand the enforcement of its provisions
at any level of those courts.
Convention against Torture became part of Libya's domestic legislation
as soon as it was ratified and published in the Official Gazette.
It thereby acquired binding force like any other domestic legislative
enactment, as we mentioned at the beginning of this report when speaking
of the general legal framework for the application of the provisions
of the Convention against Torture in Libya.
of the provisions of the Convention and the corresponding provisions
of Libyan legislation
is defined as any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession
... etc. The corresponding articles in Libyan legislation are as follows:
435 of the Penal Code
article states: "Any public official who personally tortures
or orders the torture of accused persons is liable to a penalty of
3 to 10 years' imprisonment".
17 of the Promotion of Freedom Act
article specifies: "The accused is deemed to be innocent until
proved guilty by a court judgement. It is prohibited to subject the
accused to any form of physical or mental torture or other cruel,
inhuman or degrading treatment".
28. On comparing
article 1 of the Convention with the text of article 435 of the Penal
Code and article 17 of the Promotion of Freedom Act, we find that
the two above-mentioned Libyan legislative texts cover the requirements
of article 1 of the Convention. Moreover, article 17 of the Promotion
of Freedom Act also covers the requirements of article 16 of the Convention
in the field concerned.
Libyan law prescribes a penalty for an act of torture without defining
that act, as in the case of article 435 of the Penal Code, article
17 of the Promotion of Freedom Act defines the nature of torture in
the same terms as those embodied in article 1 of the Convention. Furthermore,
following its ratification by the people's congresses in the Jamahiriya
and its publication in the Official Gazette, the Convention against
Torture became a domestic legislative enactment the provisions of
which are binding on the national courts in all matters not covered
by the provisions of domestic legislation. Any person who has a legal
interest has the right to invoke the provisions of the Convention
and, if necessary, point out the need for their application as part
of domestic legislation.
2 specifies that each State Party shall take effective legislative,
administrative, judicial or other measures to prevent acts of torture
in any territory under its jurisdiction. With regard to legislative
measures, the corresponding Libyan legislative texts are as follows.
435 of the Penal Code
has already been made to this article.
431 of the Penal Code
article stipulates as follows:
"Any public official
who, in the discharge of his duty, uses violence against any person
in such a way as to detract from his dignity or cause him physical
pain shall be liable to a penalty of imprisonment and a fine of
up to 250 dinars".
applies to the abuse of authority against any person.
17 of the Promotion of Freedom Act
has already been made to this article in connection with article 1
of the Convention.
34. We once
again wish to point out that any gap in domestic legislation is covered
by the Convention, which has become part of domestic legislation and
is therefore enforceable and binding on the national courts. The same
applies to article 2, paragraphs 2 and 3, of the Convention, as indicated
in paragraph 4 below.
35. The corresponding
text is found in article 9 of the Libyan Penal Code, which places
the following restrictions on extradition:
act on which the extradition request is based must constitute a crime
under Libyan law and under the law of the State requesting extradition.
crime or penalty must not be statute-barred under the Libyan or foreign
laws of the two States must permit criminal prosecution.
in which Libyan law does not permit extradition are as follows:
(a) A request
for the extradition of a Libyan citizen.
crime in respect of which extradition is requested must not be a political
or politically motivated crime.
9 of the Libyan Penal Code defines a political crime, under the criminal
law, as any crime prejudicial to a political interest of the State
or a political right of any individual.
Article 21 of the Promotion of Freedom Act
article stipulates that the Jamahiriya is a place of refuge for persecuted
persons and freedom-fighters. Accordingly, such refugees who have
sought its protection cannot be handed over to any other authority.
3, paragraphs 1 and 2, of the Convention against Torture are fully
covered by article 9, paragraph 5, of the Penal Code and article 21
of the Promotion of Freedom Act. Expulsion, return ("refoulement")
or extradition as referred to in article 3 of the Convention are prohibited
by law in cases involving the political rights of individuals or in
circumstances in which their human rights might be violated.
article of the Convention has its counterpart in article 435 of the
Penal Code: "Any public official who personally tortures or orders
the torture of accused persons is liable to a penalty of 3 to 10 years'
imprisonment". The text of this article of the Libyan Penal Code
designates acts of torture as criminal offences regardless of whether
the public official commits them himself or orders others to do so
and the penalty of imprisonment, depending on the gravity of the act,
ranges from 3 to 10 years.
435 is further strengthened by the text of article 431, under which
any public official who, in the discharge of his duty, uses violence
against any person in such a way as to detract from his dignity or
cause him physical pain is liable to a penalty of imprisonment and
these two provisions, acts of torture are regarded as acts of violence
against any person in such a way as to detract from his dignity or
cause him physical pain. They are designated as criminal offences
punishable by law, as required by article 4 of the Convention.
article 4 of the Penal Code, the offences referred to in article 4
of the Convention and article 5, paragraphs (a), (b) and (c), of the
Code are designated as punishable offences which fall under the jurisdiction
of the Libyan courts, regardless of whether they are committed in
territory subject to that jurisdiction or in places that are regarded
as equivalent to Libyan territory (offences committed on Libyan ships
or aircraft, for example), and regardless of whether the offences
are committed by a Libyan or a foreign national.
has already been made to the question of extradition, which is regulated
by article 9, paragraph 5, of the Libyan Penal Code and article 21
of the Promotion of Freedom Act.
43. In all
cases, any gap in the Libyan text corresponding to a provision of
the Convention against Torture can be filled by the stipulations contained
in the Convention, which is regarded as a domestic legislative enactment
that is binding on the national courts, as already indicated on more
than one occasion. In our view, the provisions of Libyan domestic
legislation meet the requirements of the Convention as set forth in
article 5 and other articles thereof. For further details, reference
can be made to the supplementary report submitted in November 1992,
to which all the Libyan legislation relevant to the Convention was
44. The provisions
of article 6 of the Convention have their counterpart in article 4
of the Libyan Penal Code. The situation can be defined as follows:
being satisfied, after an examination of information available, that
a person residing in Libyan territory has committed any of the acts
designated as criminal offences in article 4 of the Convention, the
Libyan authorities take him into custody in accordance with the requirements
laid down in article 6 concerning the adoption of legal measures and
the duration of custody.
4 of the Libyan Penal Code is fully applicable to both Libyan and
foreign citizens residing in Libyan territory.
text of article 4 of the Libyan Penal Code allows no scope for the
Libyan State to choose whether to exercise or waive its judicial jurisdiction,
since the provisions of the Libyan Penal Code must be applied to both
Libyan and foreign citizens and the State party, namely Libya, has
an obligation to exercise its judicial jurisdiction. However, there
is nothing to prevent the State from invoking the provisions of article
6, paragraph 4, of the Convention, which has become part of its domestic
legislation, concerning indication by the State party as to whether
it intends to exercise this jurisdiction.
is governed by the provisions of articles 8 and 9 of the Penal Code
and article 21 of the Promotion of Freedom Act, as already mentioned.
provision of the Convention has its counterpart in the texts of articles
4, 435 and 431 of the Libyan Penal Code, as explained below:
4 stipulates that the Penal Code and the Code of Criminal Procedure
apply to any Libyan or foreign national who commits, in Libyan territory,
any legally proscribed offences. Libyan territory is deemed to include
Libyan aircraft and ships, wherever they may be, unless they are subject
to foreign legal jurisdiction under the terms of international law.
435 of the Penal Code stipulates that any public official who personally
tortures or orders the torture of accused persons is liable to a penalty
of 3 to 10 years' imprisonment.
431 of the Penal Code stipulates that any public official who, in
the discharge of his duty, uses violence against any person in such
a way as to detract from his dignity or cause him physical pain is
liable to a penalty of imprisonment and a fine of up to 250 dinars.
46. A comparison
of these texts with the provisions of article 7 of the Convention,
read in conjunction with articles 4 and 5 thereof, enables us to draw
the following conclusions:
legal jurisdiction of the Libyan Penal Code covers any act constituting
an offence committed in Libyan territory, regardless of whether its
perpetrator is a Libyan or a foreign national. Libyan
is deemed to include Libyan aircraft and ships, wherever they may
be, except in the hypothetical cases of dispute referred to in the
article in question, in accordance with the general rules of jurisdiction.
the eyes of the law, acts of torture are criminal offences and, under
the terms of article 435 of the Penal Code, torture constitutes a
felony punishable by a minimum of 3 and a maximum of 10 years' imprisonment,
depending on the gravity of the act. This is in conformity with the
requirements of article 4 of the Convention.
article 431 of the Penal Code, it is a punishable offence for a public
official, in the exercise of his duty, to use violence against a person
in such a way as to dishonour him or cause him physical pain. An additional
penalty is prescribed to punish acts of violence as such.
already mentioned, the provisions of the Convention against Torture
became part of Libyan domestic legislation as soon as they were ratified
and published in the Official Gazette.
treatment is guaranteed by articles 24 to 26 of the Code of Criminal
Procedure, concerning the circumstances in which arrests can be made
and statements taken from arrested suspects. These provisions are
supplemented by article 30 of the same Code, concerning the legality
of arrests, and article 31, concerning detention and places of custody.
47. In accordance
with those overall provisions, the Libyan authorities (the State),
as a party to the Convention against Torture and in keeping with the
provisions of Libyan legislation, are under an obligation, like other
States parties, to take the measures required by article 7 of the
Convention. Obviously, the criteria governing the evidence required
for prosecution and conviction must under no circumstances be less
strict than those applied in the cases referred to in article 5, paragraph
48. The corresponding
provisions are found in articles 8 and 9 of the Libyan Penal Code.
8 of that Code stipulates that:
and return of criminals shall be governed by Libyan law unless
regulated by treaties and international practice".
article 9 of the same Code:
be extradited provided that the following conditions are met:
(a) the act on which
the extradition request is based must constitute an offence under
Libyan law and under the law of the State requesting the extradition.
(b) The crime or penalty
must not be statute-barred under the Libyan or foreign laws".
leads to the following conclusions:
extradition and return of criminals are governed by Libyan law. This
is only natural, since it forms part of the sovereignty of national
law does not apply to cases covered by international treaties concerning
extradition and return which the Libyan State has concluded with one
or more other States, nor does it apply to cases governed by international
Libyan law, for extradition to be permissible, the act on which the
extradition request is based must constitute an offence under Libyan
law and also under the law of the State requesting the extradition.
crime or the penalty that it entails must not be statute-barred under
either of the two laws.
(e) If extradition
is governed by an international treaty between the Jamahiriya and
one or more other States, the offences referred to in article 4 are
covered thereby. With all the more reason, these offences shall be
designated as extraditable in any future treaty concluded by Libya.
(Art. 8, para. 1, of the Convention.)
(f) In accordance
with article 8, paragraph 2, of the Convention, the conditions stipulated
in Libyan law must be applied in the event of Libya receiving a request
for extradition from another State. These conditions are laid down
in the above-mentioned paragraphs 1 and 2 of article 9 of the Libyan
Convention against Torture has become part of the domestic legislation
in force in Libya and the extradition procedures should be put into
effect between two States parties to the Convention. In our view,
this facilitates matters in that regard, since every State party is
assumed to have taken the legislative measures needed to facilitate
the application of the Convention in question, including the cases
referred to in article 8 thereof which governs the conditions and
scope of extradition.
52. The corresponding
provisions of Libyan legislation, deal with the competence of the
national courts to hear the cases referred to in the provisions of
articles 5, 6, 8 and 9 of the Convention. Confining our comments to
article 9 of the Convention, since articles 5, 6, and 8 have already
been dealt with, we can state as follows:
regard to the jurisdiction of the national courts, article 9 presupposes
that there is a person alleged to have committed an act constituting
an offence under the terms of article 4 of the Convention and that
the said person has been subjected to the procedures for dealing with
his case in accordance with the conditions and circumstances specified
in articles 5, 6, 7 and 8 thereof, particularly concerning the handing
over of the said person to the judicial authorities for prosecution
in accordance with the conditions and procedures for extradition as
laid down in the provisions of national legislation and the Convention
in the manner to which reference has already been made.
54. If the
person alleged to have committed any of the offences referred to in
article 4 is extraditable, the State exercising legal jurisdiction
over the said person has an obligation to provide assistance in regard
to the criminal proceedings that are brought, including the supply
of all the evidence at its disposal which is necessary for the proceedings.
It is only natural that these obligations should be fulfilled in the
light of any existing treaties between the two States concerning mutual
55. In the
light of the above, it can be said that articles 5, 6, 7, 8 and 9
of the Convention have their counterparts in articles 4, 5, 6, 8 and
9 of the Libyan Penal Code, which contain corresponding provisions
concerning the cases dealt with in the two sources.
56. The corresponding
provisions in Libyan law are as follows.
24 of the Code of Criminal Procedure
article specifies the circumstances in which a suspect who is present
can be arrested. These circumstances are confined to felonies, cases
of flagrante delicto, cases in which the offence constitutes a misdemeanour
punishable by imprisonment and in which the suspect is placed under
police surveillance, etc., misdemeanours involving theft, aggravated
assault, resisting the authorities with force or violence, pimping
and trafficking in women and children, etc. In each of these cases,
the law stipulates that there must be adequate evidence of the commission
of the offence.
26 of the Code of Criminal Procedure
regard to the hearing of the statements of the arrested suspect, this
Code stipulates as follows:
investigation officer must immediately hear the statements of
the arrested suspect and, if the latter is unable to exculpate
himself, must refer him to the Department of Public Prosecutions
within 24 hours.
The Department of
Public Prosecutions must question the suspect referred to it within
24 hours and must then order his retention in custody or his release".
30 of the Code of Criminal Procedure
article, which concerns the legality of arrest, stipulates:
"No one may be
arrested or detained except by order of the legally competent
31 of the Code of Criminal Procedure
article stipulates as follows:
"Places of detention
shall consist solely in the prisons intended for that purpose".
"No prison warden
shall admit any person thereto without an arrest warrant signed
by the competent authority, nor shall he retain the said person
therein beyond the specified time-limit".
32 of the same Code, concerning authority to visit and inspect prisons
authority is vested in members of the Department of Public Prosecutions,
inspecting magistrates and the presidents and vice-presidents of courts
of first instance and appeal courts in their respective areas of jurisdiction.
Their role in this regard is as follows:
(a) To ensure
that no one is imprisoned unlawfully;
have the right to inspect the prison registers and make copies thereof;
have the right to contact any prisoner and hear any of his complaints.
of the prison and his staff must render every assistance to enable
them to obtain the information that they require.
33 of the same Code
article refers specifically to the complaints of prisoners and persons
who are detained unlawfully. Its main provisions are as follows:
prisoner has the right to submit a written or verbal complaint, at
any time, to the governor of the prison and to request him to transmit
it to the Department of Public Prosecutions or the competent magistrate.
The governor is legally bound to accept and promptly transmit such
complaints after entering them in the register maintained to that
who comes to know that a person is imprisoned unlawfully or in a place
other than a legally designated prison must notify a member of the
Department of Public Prosecutions or the competent magistrate.
member of the Department of Public Prosecutions or the competent magistrate
must proceed to investigate the complaint and, after investigating
it, must release the illegally confined person and draw up a report
concerning the matter.
14 of the Promotion of Freedom Act
article stipulates that no person may be searched, interrogated or
subjected to any deprivation or restriction of liberty except by order
of a competent authority and in the circumstances and for the periods
prescribed by law if he is accused of the commission of a legally
punishable offence. Under the terms of this article, a person may
be held in preventive detention only at a location of which his family
is notified and for the shortest period of time needed for the investigation
and for the preservation of evidence.
64. In general,
these provisions provide guarantees in regard to the following:
in which the suspect can be arrested if there is adequate evidence
of his commission of a felony, a misdemeanour punishable by imprisonment
or offences involving violent assault on public officials, pimping
and trafficking in women and children, etc. (art. 24).
legality of arrests, which can be made only by order of the competent
authorities. It is prohibited for the warden of a prison to admit
any person thereto without an order signed by the competent authority.
visiting and inspection of prisons, exercise of judicial supervision
thereof and determination of the legality of the confinement of prisoners
therein are systematically reviewed in the manner provided for in
article 11 of the Convention.
has an obligation to notify the Department of Public Prosecutions
or the competent magistrate if he comes to know that a person is detained
unlawfully or in a place that is not intended for such detention.
19 of the Promotion of Freedom Act regulates arrest and detention
orders, in regard to which it refers to the circumstances and time-limits
specified in other legislative enactments. These matters are naturally
subject to the general rules laid down in the legislative provisions
to which reference has already been made.
65. On the
basis of this set of provisions, it can be said that Libyan legislation
lays down general rules that regulate interrogation, examination,
arrest, detention and custody and make these methods and the manner
in which they are applied subject to systematic review, as required
by article 11 of the Convention.
Articles 12 and 13
12 and 13 of the Convention have their counterparts in the following
provisions of Libyan legislation:
435 of the Penal Code, which designates acts of torture as punishable
criminal offences, as already indicated.
15 of the Code of Criminal Procedure, which stipulates that: "Anyone
who comes to know of the commission of an offence in respect of which
the Department of Public Prosecutions can institute proceedings without
a complaint or a petition must notify the Department of Public Prosecutions
or a criminal investigation officer thereof".
16 of the same Code, which contains examples of the notification-related
obligations of public officials and persons assimilated thereto.
67. The following
conclusions can be drawn from those provisions:
act of torture is legally designated as a punishable criminal offence.
right to lodge a complaint is vested in the person against whom the
act of torture is committed and may be exercised in the manner specified
and regulated by law.
(c) By law,
any citizen who comes to know of the commission of a criminal act
of torture has an absolute right to lodge a complaint in that regard
with the public authorities.
(d) By law,
public officials and, in particular, physicians treating cases of
injury or torture are required to notify the competent bodies, namely
the Department of Public Prosecutions or criminal investigation officers,
166 and 167 of the Civil Code contain the following provisions concerning
compensation in respect of damage suffered:
166 stipulates that: "Any fault that causes damage to another
person renders its perpetrator liable to payment of compensation in
article 167: "A person is liable for his illegal acts if they
are committed while he is capable of distinguishing right from wrong".
provisions are fully applicable to the infliction of damage or the
commission of an illegal act, regardless of whether its perpetrator
is a public or private body, an ordinary individual or a public official.
They are all liable for their illegal acts and, in accordance with
the provisions of the Libyan Penal Code and the Convention against
Torture, the commission of torture is an illegal act and, as such,
is designated as a punishable criminal offence that creates an entitlement
to compensation in respect of the damage resulting therefrom. The
victim can follow one of two procedures to lodge a complaint and claim
compensation in respect of such damage. He can either bring an independent
action before the civil courts or claim compensation before the criminal
courts while they are hearing the criminal proceedings. The latter
is the more usual procedure in view of the interlinkage between the
criminal and civil aspects of the judgement and the rapid manner in
which it can be handed down and implemented.
article concerns what can be called "legal safeguards" provided
by the national courts. The most prominent aspect is the need to refrain
from relying on evidence or statements obtained through coercion.
71. In this
connection, the case-law applied by the Supreme Court is as follows:
(a) No evidence
or probative confessions or statements of any type whatsoever are
admissible if obtained through coercion, regardless of the value of
such evidence (ruling of the Supreme Court in Criminal Appeal SC/26/354).
judge hearing the case must examine and verify the arguments put forward
by the accused concerning the probative value of any confession attributed
to him and concerning the use of violence or coercion to obtain such
confession. If the judge fails to do so, his judgement will be vitiated
and lacking in substantiation and must be quashed (Criminal Appeal
72. The Supreme
Court is the highest judicial authority in the national legal system
and its rulings are binding on all the courts. The principles that
it establishes constitute rules by which the judiciary must abide
in its judgements.
16 has its counterpart in the following articles of the Libyan Penal
431 prescribes a punishment of imprisonment and a fine for any public
official who, in the discharge of his duty, uses violence against
any person in such a way as to detract from his dignity or cause him
428 prescribes a penalty of imprisonment ranging from six months to
five years for anyone who deprives any individual of his personal
liberty. The penalty is increased by half if the act is committed
by a public official exceeding the limits of his official authority.
429 prescribes a penalty of imprisonment or a fine for anyone who,
through the use of violence or threats, compels a person to perform,
suffer or refrain from engaging in an act, etc.
provisions of articles 431, 428 and 429 of the Libyan Penal Code refer
to legally punishable acts similar to those referred to in article
16 of the Convention. Other acts not amounting to torture as defined
in article 1 of the Convention are also covered by these provisions.
of authority in such a way as to detract from a person's dignity or
cause him physical pain is prohibited by law and punishable under
the terms of article 431 of the Penal Code.
detention is punishable by imprisonment under the terms of article
428 of the Penal Code.
use of violence to coerce others constitutes a criminal offence punishable
by the penalty prescribed in article 429 of the Penal Code.
78. The penalty
prescribed in all these provisions of the Penal Code is increased
if the act is perpetrated by a public official exceeding the limits
of his official authority or if such official commits an act that
degrades or causes physical pain to any individual.
79. In our
view, this trend in Libyan legislation tends to deter abuses by the
Administration and curbs the misuse of public authority. Moreover,
these acts, which are designated as criminal offences in the Libyan
Penal Code, are incorporated in the chapter entitled "Offences
against personal liberty" in order to highlight the importance
that Libyan law attaches to the protection of public freedoms.
80. In concluding
this report, we hope that the distinguished Committee will permit
us to express the view that human endeavours, on the part of individuals,
groups, States, Governments and international organizations, etc.,
should focus on promoting the sacred values of truth, justice and
freedom, upholding the rights of peoples to those values and consolidating
the political, economic, social and cultural aspects of human rights
in a world in which mankind must share the benefits of technological
development and scientific progress in such a way as to eliminate
racial, cultural and religious divisions and leave no cause for allegations
of intolerance, isolation or segregation between peoples and nations.
the history of mankind, the human person has been the precious target
of religions, divinely-revealed missions and revolutionary reforms.
In this world, everyone has a right to live in freedom and to think,
create, produce and progress in freedom, security and peace.
concepts apply to individuals as well as nations and peoples and those
who encroach on human freedom within States and regimes do not differ
from those who encroach on the freedoms of peoples and nations by
means of embargoes, isolation, external loan and debt policies, tendentious
and conditional aid programmes and the imposition of a single criterion
to judge the experiences of others on the pretext that one has the
best concepts and the most viable solutions to the problems of human
beings wherever they may be.
83. The first
category are just as much at fault as the second category, since they
both act on the erroneous assumption that individuals are minors in
need of someone to think and plan on their behalf and that the peoples
of the world, not having reached the age of maturity, need someone
to supervise every step that they take and to control even their levels
of growth and development. In the same way as ignorance disappears
as knowledge becomes more widespread, violations of human rights and
freedom disappear when human beings enjoy liberty and control over
their destiny and when peoples take their place in decision-making
forums and participate effectively in the process of shaping their
of the extent of the legal and judicial safeguards that might be provided
by a particular political or judicial system for the protection of
human rights and freedom, there will inevitably be individual violations
of the rules of law and encroachments by administrations or States
on the rights and public freedoms of persons.
is a basic problem in the mutual relationship between individuals
and authorities. It is reflected in the ontology of modern States
which manifest no inclination to justify violations of the values
of freedom and human rights. In the words of Martin Luther, the religious
reformer: "The just prince is a rare bird". In this sense,
the concept of the ideal individual in the ideal society in the ideal
State is a form of diligent quest for an earthly Utopia which, although
human endeavours might approach it step-by-step, remains unattainable
and beyond reach since it is part of the dream of philosophers and
intellectuals. However, regardless of the magnitude of the difficulties
and challenges which mankind must face in its daily life, dreams can
move mountains and create part of the truth. The truth is human freedom.
86. We hope
that the substantive content of this report will serve the purpose
that the Committee is seeking to achieve in its work. God is the judge
of our good intentions.