The trial of former Libyan officials, including Saif al-Islam al-Gaddafi, risks descending into a farce after the court ordered today that he and six other defendants be tried via video link, said Amnesty International.
On 23 March, a day before the last hearing in this case, two amendments were made to Libya's Code of Criminal Procedure to allow hearings via video link.
The trials by video link will infringe all the seven defendants' rights to a fair trial. The impact on Saif al-Islam's case is of particular concern as he remains held in a secret location in Zintan by a militia that has repeatedly refused to hand him over to state custody in Tripoli. The other six defendants are held in Misratah in prisons under the control of the Ministries of Justice and Defence.
"Allowing Saif al-Islam al-Gaddafi to appear by videoconference seriously undermines his right to a fair trial. Saif al-Islam is not in state custody and changes to the Code of Criminal Procedure and today's court decision are simply about giving a gloss of legality to the stand-off between militias and the central authorities. The bottom line is that Saif al-Islam al-Gaddafi, like hundreds of other detainees, remains held in an unofficial place of detention," said Hassiba Hadj Sahraoui, Amnesty International's Deputy Director for the Middle East and North Africa.
Saif al-Islam al-Gaddafi is on trial in Libya along with 36 other former Libyan officials, including the former Chief of Military Intelligence Abdallah al-Senussi. They are facing a string of charges related to crimes committed during the 2011 uprising and armed conflict. Saif al-Islam al-Gaddafi is also wanted by the International Criminal Court (ICC) on two counts of crimes against humanity; murder and persecution.
"How can the Libyan authorities claim that Saif al-Islam al-Gaddafi will receive a fair trial when they cannot even ensure that he is physically present to face such serious accusations that may result in the death penalty? The court's decision only reinforces that he must be handed over to the International Criminal Court (ICC) in line with the court's decision issued nearly a year ago," said Hassiba Hadj Sahraoui.
Saif al-Islam al-Gaddafi remains held in a secret location without any regular contact with the outside world and his appearance by video link at court hearings undermine his right to be present at his own trial. Furthermore it would at best offer a glimpse into his detention and is not indicative of his overall treatment in detention and during his transfer to and from the court. A trial under such circumstances could also impede his communication with his lawyer and affect his ability to prepare and present an effective defence.
The trial was adjourned to 27 April to allow enough time to make the necessary technical arrangements.
"The authorities appears to have amended laws to permit trial appearances by video link simply because they are unable to secure Saif al-Islam's transfer into state custody. It shows how little control the state has over him," said Hassiba Hadj Sahraoui.
In certain circumstances, including under the ICC rules of procedure, parts of a trial may be conducted by video link. While this should be the exception, such provisions may be permissible for example for security reasons at the defendant's request, or where the accused has made it impossible to continue with a trial in his presence. However, where the accused is in unofficial custody and the court cannot enforce its authority over him, presence by video link is merely providing an illusion of legality.
The General Prosecutor has stated that Saif al-Islam could not be transferred from Zintan to Tripoli for security reasons, and that he refused to be transferred to Tripoli out of fear for his own life. However, Amnesty International believes that this argument cannot be made while Saif al-Islam al Gaddafi remains in militia's custody and vulnerable to duress.
Failing to transfer the other six defendants in Misratah to the court in Tripoli will also needlessly impact their right to a fair trial.
Amnesty International recognizes the numerous security challenges faced by the Libyan authorities in the post-conflict period. The organization has expressed concern about attacks and abductions of detainees being transferred. However, while the judicial police remains weak, the authorities should focus on rebuilding institutions and improving security.
"Instead of changing the law to adapt it to current security and political challenges, the Libyan authorities should be seeking to expedite the process of taking over detention facilities from militias," said Hassiba Hadj Sahraoui.
Fair trials are essential to address impunity and achieve truth and justice for victims of human rights abuses and international crimes perpetrated during the conflict.
"It is hard to imagine how a fair trial can be conducted in a climate where witnesses are scared to testify, lawyers are scared to plead, prosecutors and judges are threatened, trials are held inside prison complexes or via video link allegedly to address security concerns, and the state is unable to take over detainees from militias," said Hassiba Hadj Sahraoui.
Amnesty International is also concerned about fair trial rights of all other defendants in the case. Lawyers told the organization that they were not given sufficient time to review evidence and prepare the defence in the pre-trial stage of the proceedings. Some reported intimidation and harassment. Threats have been common in Libya since the end of the 2011 conflict, especially in sensitive cases.
Abdallah al-Senussi continues to be held without access to legal counsel. His family have been unable to find a lawyer willing to represent him since he was extradited from Mauritania in 2012. Under Libyan law, the court will have to appoint a lawyer to represent him for the case to go ahead.
Saif al-Islam al-Gaddafi is the main defendant among 37 former officials, including the former Chief of Military Intelligence Abdallah al-Senussi, former Prime Minister al-Baghdadi al-Mahmoudi, former Head of the Revolutionary Guard Mansour Daw, former Head of the External Security Agency Abu Zeid Dorda and others.
The numerous charges relate mainly to the command responsibility of Saif al-Islam and other former officials and their alleged incitement to, or ordering of crimes perpetrated during the conflict. Some carry the death penalty. Only 23 defendants in the case appeared today at the Criminal Department of the Tripoli Appeals Court located in the compound of al-Hadba Corrections and Rehabilitation Institution in Tripoli, a high-security prison nominally under the Ministry of Justice. Expecting an adjournment, most lawyers did not attend the hearing.
Amnesty International met with Saif al-Islam in September 2013 at the militia compound in Zintan, but was not able to speak to him in private or visit his place of detention. The organization remains concerned about his prolonged isolation and the potential detrimental effects it may have on his health, wellbeing, and his access to a fair trial. Visits to Saif al-Islam by independent national and international organizations which must be authorized by the General Prosecution, remain extremely rare and are very difficult to organize. Regular independent monitoring of places of detention is one the main safeguards against torture.
Amended articles undermining right to a fair trial
On 23 March, the General National Congress (GNC) adopted amendments to articles 241 and 243 of the Code of Criminal Procedure regulating the right to public hearings and the defendant's presence in court, two fundamental principles of fair trial guarantees under international human rights law.
Under the amended version of Article 241, a hearing is considered public as long as it is broadcast to the public via satellite channels, screens and other means of communication.
Under the amended version of Article 243, the court may use modern means of communication to connect the defendant to the courtroom whenever there is concern for his safety or fear that he may escape. This procedure is also applicable to witnesses, experts and prosecutors. It allows the trial of more than one defendant in more than one courtroom.