Tripoli — Libyan authorities should immediately drop criminal defamation charges and free Amara Hassan al-Khatabi, editor of al-Ummah daily. Al-Khatabi, who has been in detention since December 19, 2012, is on trial for "insulting" and "slandering" members of the judiciary. His private lawyer was not allowed to visit him while he was detained in prison and says he was transferred to a medical facility due to his fragile health on April 6, 2013, where he remains detained under guard.
Al-Khatabi is apparently the first journalist in Libya to go on trial for "insulting" authorities since the ouster of Muammar Gaddafi. Libya should revise its laws to eliminate the offense of "insulting" officials and state institutions, and decriminalize defamation so that no one faces prison terms for that offense, Human Rights Watch said.
"Jailing journalists who accuse officials of corruption is a well-tested recipe for stifling free speech and political debate, whether or not the accusations have merit," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "Libya should free al-Khatabi and eliminate its laws that provide prison terms for nonviolent speech."
On March 2, Justice Minister Salah al-Marghani urged the prosecution to release al-Khatabi on bail due to his frail health, also saying that journalists should face fines rather than prison for professional offenses.
The basis of the charges is an article, "The Black List of the Judiciary," in the November 21 issue of al-Ummah. The article contains a list of 87 judges, prosecutors, and lawyers, all members of the public judiciary, accused of illicit earnings, accepting bribes, and loyalty to Gaddafi, along with a preface stating that al-Ummah had received this list from an unnamed source and was reprinting it as it was.
Although there is no official order to shut down the paper, al-Ummah stopped publishing its daily newspaper after the last two printed issues were confiscated.
Authorities are apparently prosecuting Al-Khatabi under article 195 of the Gaddafi-era penal code, that stipulates, "[..] any person who may launch what may be regarded as an attack against the Great Fateh Revolution or its leader shall be punishable by imprisonment .... The same penalty shall be levied against any person who insults the popular authority, a judicial, defense, or security body [...]"
Ramadan Salem, al-Khatabi's lawyer, told Human Rights Watch that he had not been granted permission to visit his client, while he was detained in al-Hadhba prison, despite submitting three formal requests to the public attorney's office. He said that al-Khatabi was transferred to the health facility with Justice Ministry approval.
Human Rights Watch attended the most recent court session, on April 1. Al-Khatabi sat in a wheelchair. Two guards had to help him to his feet when his case was called. He remained silent throughout the proceedings, which his family attended.
Al-Khatabi's lawyer pleaded in vain for his client's release. The defense also argued that al-Khatabi's detention violated press law No. 76 from 1972, which stipulates that the ministers of media affairs and culture must approve in advance the arrest of a journalist. Public Prosecutor Naema Al Ajeili argued against al-Khatabi's release and asked the court to impose a 15-year prison term. The next hearing is set for April 15. The verdict is not expected to be announced at that session.
Presiding Judge Ahmed Birbash ordered the case file to be reviewed by a public defender lawyer even though al-Khatabi is represented by a private lawyer and had not requested an additional lawyer to represent him. Birbash also ordered Salem, the private lawyer, to enter a not-guilty plea for al-Khatabi during the next session to comply with all formalities needed to end a trial and issue a verdict.
On April 11, the defendant filed a motion to disqualify Birbash from the case. The filing raises concerns about the judge's suitability to preside over the case and the defendant's explicit wish to be represented by Salem, despite the judge involving a public defender.
Libya is a party to the International Covenant on Civil and Political Rights and the African Charter on Human and People's Rights, both of which protect the right to freedom of expression. Libya's provisional constitutional covenant says, in article 14, that the state "shall ensure freedom of opinion, freedom of speech for individuals and groups, freedom of scientific research, freedom of communication, freedom of press, media, printing, and distribution," so long as it is not "contrary to public order."
On June 14, 2012, the Libyan Supreme Court declared unconstitutional a law that criminalized free speech. Law 37/2012, which the National Transitional Council had passed on May 2, criminalized a variety of types of political speech, including speech that "glorifies the tyrant [Muammar Gaddafi]," did "damage [to] the February 17 Revolution," or insulted Libya's institutions. The presiding Judge, Kamal Edhan, declared the law unconstitutional. The case was litigated by a group of lawyers who included the current justice minister, Salah al-Marghani, and the current deputy president of the Congress, Giuma Attigha.
To protect freedom of speech, Libya should eliminate all laws that provide penalties for "insulting" public officials and institutions, and eliminate laws criminalizing defamation, Human Rights Watch said. While everyone has a right to redress when their reputation has been impugned, the remedies should be limited to civil suits with penalties other than imprisonment. Moreover, to protect the public's interest in free-ranging debate on matters of governance, courts should apply a higher threshold before imposing sanctions on people deemed to have defamed public figures.
"Instead of using Gaddafi-era laws to put journalists in prison, Libya should be revising its laws to protect the unbridled public debate and access to information that Libyans have for so long been denied," Goldstein said.