Saif Has Been Repeatedly Interrogated Without Counsel

Kevin Jon Heller

Libya has filed a lengthy response to a series of Pre-Trial Chamber questions about the domestic proceedings against Saif. There is much of interest in the motion, but what particularly caught my eye is Libya’s open admission that it has repeatedly interrogated Saif and confronted him with witnesses in the absence of defence counsel. Here are the relevant paragraphs (emphasis mine):

49. In the period since 1 May 2012, testimonies regarding the actions of Saif Al-­Islam Gaddafi have been obtained from individuals who previously operated at the highest civilian and military levels of the Gaddafi regime. These individuals include [Redacted]. Mr. Gaddafi himself has also been interviewed on a number of occasions since 1 May 2012 (the last occasion being on 13 November 2012), and has been confronted with witnesses who have given testimonies in his case during such interviews.

51. The procedure for prosecution team interviews is that a private meeting is scheduled, to be attended by the witness and prosecution lawyers (other people are not permitted to be present at such meetings). The witness is then asked to swear an oath that he or she will tell the truth in answering the questions posed by members of the prosecution team. The questions asked of the witness and the witness’ answers to these questions are then written down, and each page of the witness testimony is sealed by the witness with their signature and/or fingerprint, as well as the signature of the attending representative/s of the prosecution team. The accuracy of witness testimonies which might be contested by the suspect are verified through a process under Libyan law known as confrontation (Article 106 of the Criminal Procedure Code). During this process the accused person in the investigation (i.e. Mr. Gaddafi) is presented with each witness whose account differs from that given by him, and is given the opportunity to refute the testimony of that witness in front of one or more member of the prosecution investigative team.

These uncounseled interrogations and confrontations categorically violate Libyan criminal procedure. (As readers know, I don’t think it’s relevant whether they violate international standards of due process.). Here is what Libya said in its original admissibility challenge:

59. During the investigation phase of the case, a suspect has the right to a lawyer both in interviews with the Prosecutor-General (or Military Prosecutor) and during the confrontation of the defendant with witnesses by the Prosecutor General (Article 106 of the Criminal Procedure Code).

Article 106 of the Libyan Code of Criminal Procedure provides as follows:

In any other case except flagrante delicto and of urgency due to the possibility of losing the evidence, in proceedings related to felonies, the Investigating Judge cannot interrogate the accused, or confront him with another accused or a witness without having summoned the counsel if there is any.

According to Article 304 of the Libyan Code, substantial violations of the rules of criminal procedure can result in nullifying the procedure in question — which would seem to mean that all of the information obtained from Saif through the interrogations and the witness statements he was confronted with would be excluded from his trial. The only exception is where the defendant’s attorney failed to object to the procedural violation (Article 306), which is obviously not the case here.

Libya seems to be aware of the problem it has created for itself, so it is now claiming that Saif has not been represented during the interrogations and confrontations for one reason, and for one reason only — he has never exercised his right to counsel:

96. In response to the Chamber’s queries on the topic of Mr. Gaddafi’s defence, Libya confirms that he has not yet exercised his right to appoint counsel during the investigative phase in accordance with Article 106 of the Code of Criminal Procedure. Should he decide not to appoint counsel upon entering the accusatory phase, the Chambre d’Accusation will appoint counsel for him pursuant to Article 162 of the Libyan Criminal Procedure Code…

97. With respect to “concrete steps that have been taken in order to identify and secure … independent legal representation for Mr. Gaddafi”, the Minister of Justice of Libya, Mr. Salah el‑Marghani, confirms that:

Considerable steps have been taken by the Libyan Government, and in particular by representatives of the Ministry of Justice, to ensure that Saif Al‑Islam Gaddafi will have the benefit of properly qualified and licensed defence counsel, amongst other fair trial guarantees, under Libyan Law.

The Minister of Justice has further clarified that because Mr. Gaddafi has not elected to appoint counsel of his choice pursuant to Article 106 of the Code of Criminal Procedure:

Ministry of Justice officials have been in continuous high level contact with the Libyan Law Society and the Popular Lawyers Office in order to select a suitably qualified and committed highly qualified counsel or a team of defence counsels to represent him during his forthcoming trial.

Libya’s “explanation” of the uncounseled interrogations and confrontations is about as convincing as its claim that the $200,000,000 it gave Mauritania not long after al-Senussi was extradited was simply a generous “donation.” Not surprisingly, Libya has not provided any evidence, other than the obviously self-serving statements of the Minister of Justice, in support of its claim that Saif has not requested counsel — no written waiver, no recorded statement rejecting counsel, nothing. Indeed, Libya’s claim contradicts everything we know about Saif’s desire for representation. Here, for example, is what the OPCD said six months ago in its original response to Libya’s admissibility challenge:

194. When the OPCD met with Mr. Gaddafi on 3 March 2012, he stated that he had been informed by the Attomey-General (Prosecutor-General) that he would not be permitted to receive visits from a lawyer whilst he was detained in Zintan.

195. This statement is corroborated by information which was independently provided to the OPCD by the Libyan authorities, and from other sources, such as Human Rights Watch.

196. During the meeting between the OPCD and the prosecuting authorities assigned to his case on 29 Febmary 2012, the OPCD was informed that it would not be possible for Mr. Gaddafi to have privileged communications with a lawyer, whilst he is being detained in Zintan.

197. This is consistent with the fact that in December 2011, Fred Abrahams from Human Rights Watch was informed by prosecuting authorities that “the state will allow Saif a lawyer after he is transferred to a more secure facility in Tripoli”. The 2012 Commission of Inquiry Report referred to the fact that “[u]ntil now [Mr. Gaddafi] has been held by thuwar in Zintan, without any access to a lawyer or to his family.”

198. Although the Libyan authorities assured the ICC that they would facilitate a privileged visit between Mr. Gaddafi and his Counsel, the manner in which they implemented this visit further underscores the fact that they do not have a genuine intention to facilitate privileged visits between Mr. Gaddafi and his Counsel. This will be further elaborated in section 6.3.2 below.

199. It is also notable that although the Libyan authorities asserted that Mr. Gaddafi has a theoretical right to counsel, they have provided absolutely no information in their challenge as to how the right to freely choose a counsel would be implemented in practice in terms of either the lawyer’s ability to communicate with him, or Mr. Gaddafi’s ability to designate a lawyer in the absence of any assistance or advice from friends and family, or means to make extemal communications.

200. From the very beginning of his detention, Mr. Gaddafi indicated that he needed to speak to his friends and family in order to select a lawyer to represent him.

201. Mr. Gaddafi informed the OPCD on 3 March 2012, he does not know any lawyers, and for that reason, needed assistance in designating one, but that he expressly wished to be represented in connection with the domestic proceedings in Libya by a lawyer chosen by his family.

202. In line with the fact that Mr. Gaddafi had indicated that he required assistance to designate a lawyer for the domestic proceedings, the OPCD contacted the Libyan authorities in April 2012 in order to ascertain the requirements for such a lawyer, and to arrange to visit Mr. Gaddafi so that the OPCD could facilitate his choice.

203. The OPCD was given contradictory information conceming the requisite qualifications, and almost two months elapsed from the date on which the OPCD first requested to visit Mr. Gaddafi for the purpose of facilitating his right to effective representation, and the actual date of the visit.

204. Although the Libyan authorities had been explicitly informed of the fact that the OPCD intended to discuss options for domestic representation with Mr. Gaddafi during the visit of 7 June 2012, Mr. Gaddafi informed the Defence that three days before the ICC visit, the Prosecutor assigned to his case met with Mr. Gaddafi to inform him that in the absence of any power of attomey from him, they had decided to appoint a lawyer to represent him in the domestic proceedings.

205. During the meeting with Mr. Gaddafi on 7 June 2012, a document, which explicitly noted that it had been prepared by a member of the Defence team, and which set out the views of his family and friends conceming his options for legal representation and other issues conceming the admissibility of the case, was confiscated and declared to violate national security. The curriculum vitae of a lawyer, who friends and family had proposed in connection with domestic proceedings, was also confiscated by the guard. Due to the injury to his right hand, which impedes his ability to write, Mr. Gaddafi had instmcted the ICC interpreter to complete a statement (confirming his wish to be tried before the ICC) and two powers of attomey for him (one for domestic proceedings and one for the ICC). The interpreter had been unable to do so because of the fact that the meeting was constantly dismpted and abmptly terminated after only 45 minutes. The papers signed by Mr. Gaddafi were subsequently confiscated from the ICC interpreter after the meeting. As such, Mr. Gaddafi presently has no means to designate a lawyer of his choice or to have one designated by persons he trusts.

206. Given the consistent manner in which Mr. Gaddafi has indicated that he wishes to be represented in domestic proceedings by a lawyer chosen by his family, the assertion by the Libyan authorities that Mr. Gaddafi refused representation lacks any credibility. Rather, it seems that in the absence of the ability to communicate with the OPCD, or his family and friends, Mr. Gaddafi’s right to freely choose a counsel has been rendered illusory.

207. In light of the above difficulties, Mr. Gaddafi has not yet received any legal advice in connection with the domestic proceedings. As confirmed by the Libyan authorities, the case cannot progress to the next stage (confirmation of the charges) until this occurs. Given the gravity of the charges, any counsel now appointed would require a significant amount of time to acquaint themselves with the case file, and to seek instructions from Mr. Gaddafi, which will in tum, delay the further progress of the proceedings. The fact that the lawyer has apparently been appointed by the Prosecutor without any consultation with him is also likely to impede his ability to establish an effective rapport.

208. Although the Libyan authorities have asserted that Mr. Gaddafi may be represented by an international lawyer, in light of the fact that the OPCD and subsequently the Registry liaised with the Libyan authorities for almost two months in order to arrange one 45 minute legal visit (which was illegally monitored), there does not appear to be any reasonable prospect that Mr. Gaddafi will have access to effective legal advice concerning the domestic proceedings in a timely or consistent manner.

209. In this connection, on 18 April 2012, the Chairperson of the African Commission on Human Rights requested Libya to take the following provisional measures inter alia: ensure that Mr. Gaddafi has access to his lawyers and can receive visits from friends and family. The Libyan authorities did not respond to this decision. Their failure to do so speaks volumes about the likelihood that the Libyan authorities will take the necessary measures to secure Mr. Gaddafi’s rights, with the diligence required by the right to an expeditious trial, once the spothght of international attention and potential disapprobation of the Security Council has been removed from this case.

Libya has never attempted to explain any of this. Instead, it has simply repeated — over and over again, like a mantra — its unsupported claim that Saif has never exercised his right to counsel.

With each passing day, the idea that Saif will receive even a semblance of a fair trial in Libya becomes more and more fanciful. Libya has made clear that it cares nothing about Saif’s rights under either international or domestic law. We can only hope that the Pre-Trial Chamber eventually takes notice.

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