He and 3 Top Former Officials Describe Grave Due Process Violations
(Beirut) – The jailed son of former Libyan leader Muammar Gaddafi said that he had been held in solitary confinement and suffered due process violations during pretrial detention at Tripoli’s al-Hadba prison. Al-Saadi Gaddafi made the allegations on September 15, 2015, in a private meeting at al-Hadba with Human Rights Watch, its first meeting with him since his extradition from Niger in March 2014 and apparently his first meeting with an international human rights organization.
On August 3, 2015, Human Rights Watch reported on a nine-minute video made available by clearnews, an online news site, in which officials and guards at al-Hadba seem to be interrogating and ill-treating several detainees, including al-Saadi Gaddafi. Asked about the video and his ill-treatment at al-Hadba, Gaddafi said he had been “terrorized” but that he did not wish to talk about the details. The same news site published several more videos in August seemingly showing abusive interrogations of al-Saadi at al-Hadba prison.Researchers also met with three other detainees, including the former Military Intelligence Chief Abdullah Sanussi, and two former prime ministers, Abuzeid Dorda and al-Baghdadi al-Mahmoudi, during the visit to al-Hadba on September 15. All three were sentenced to death by Tripoli’s Court of Assize on July 28 for their alleged roles in trying to suppress the 2011 uprising in Libya. Gaddafi’s trial is under way. Human Rights Watch met each detainee individually for 30 to 45 minutes, in private, without guards present.
“The Supreme Court needs to address the many allegations of grave due process violations by the defendants and their lawyers when it considers the appeals of the verdicts against the former officials,” said Sarah Leah Whitson, Middle East and North Africa Director. “The assize court needs to ensure that al-Saadi Gaddafi is granted his full rights.”
The three former officials alleged serious due process violations similar to those Gaddafi raised, including lack of private access to lawyers, inability to call or question witnesses, court authorities’ refusal to allow the defendants to speak during trial proceedings, and intimidation of their lawyers by armed groups. One also alleged ill-treatment during interrogations.In July, the court sentenced six other former officials to death and 23 more to prison terms varying from five years to life in prison and permanent denial of civil rights in a trial marred by serious due process violations. Al-Siddiq al-Sur, head of investigations at the General Prosecutor’s Office, told Human Rights Watch that all defendants were expected to submit appeals by September 28. Under Libyan law, the Supreme Court automatically reviews all death sentences.
The General Prosecutor’s Office should also follow through with an investigation of those suspected of ill-treatment of al-Saadi Gaddafi and other detainees at al-Hadba, and make its results public, Human Rights Watch said. Those responsible for the abuses should be held accountable.
Gaddafi told Human Rights Watch that he is accused of murdering one of his friends, although he denies these charges. He also said the start of trial sessions was delayed due to the difficulties of obtaining a death certificate for his co-defendant in the case. Gaddafi said that while the prosecution only interrogated him about the murder case for the time being, other unidentified people interrogated him about political and security issues. Al-Sur told Human Rights Watch that the prosecutor’s office had so far charged Gaddafi with first-degree murder, illegal consumption of alcohol, and illegal depravation of liberty. He also said the prosecution would be investigating Gaddafi on other charges related to financial issues.Gaddafi said he was able to appoint a lawyer around the start of his trial in May and a second one in September, yet he had no legal representation from the time of his extradition from Niger on March 6, 2014, through the entire pretrial and investigation phase. The Prosecutor’s Office said that three sessions of his trial have been held and that the next session is scheduled for the first of November. Gaddafi also said authorities had refused his request for private meetings with his lawyers without guards present, citing “security concerns.”
He said that his defense witnesses were subjected to “huge pressures” and were intimidated about coming forward and speaking on his behalf for fear of reprisals, especially given the absence of a witness protection program. He said lawyers were not present during any of the interrogation sessions, where, he alleged, prosecution officials had intimidated and threatened him and other witnesses. Gaddafi also said he lodged a complaint about the interrogation conditions with the general prosecutor.
Gaddafi said he had been held in solitary confinement at al-Hadba prison since his extradition in a windowless cell, though with a fan, and has had no communication with other detainees. He said he has had no family visits, but has been allowed to call family members on a few occasions with a guard present. He said he suffered from back pain due to two previous surgeries, as well as shortness of breath, and had received medical treatment at al-Hadba.
Sanussi, Dorda, and al-Mahmoudi told Human Rights Watch they had not had private access to lawyers. Al-Mahmoudi alleged ill-treated during interrogations. All three had been unable to call or question witnesses, and were prohibited by court authorities from speaking freely during trial proceedings. They said that armed groups had intimidated their lawyers.
Al-Sur, the head of investigations at the General Prosecutor’s Office, told Human Rights Watch during a meeting on September 14 that his office had opened an investigation into allegations that Gaddafi was tortured, and that Gaddafi told investigators that he was ill-treated at the beginning of his detention at al-Hadba. He showed researchers arrest warrants for three suspects who were former staff members at al-Hadba.
Khalid al-Sharif, director of al-Hadba, told Human Rights Watch on September 15 that the former al-Hadba prison director had been suspended because of the torture allegations. One of the three suspects is no longer in Libya, he said, and the other two remained in Libya but were still at large.
Human Rights Watch also met with a defense lawyer representing several defendants in the case against the former officials, who said there had been grave due process violations. These included a lack of private access to the defendants for the lawyers, the inability of defense lawyers to see all key court documents, and insufficient time to prepare for their defense. He also said he had been threatened by armed groups due to his involvement in the case.
On July 24, 2014, International Criminal Court (ICC) judges upheld an earlier decision approving a bid by Libya to prosecute Sanussi domestically. Human Rights Watch has urged the ICC prosecutor to consider asking ICC judges to revisit the Sanussi ruling based on new facts.
Another son of Muammar Gaddafi, Saif al-Islam, is wanted by the ICC for crimes against humanity related to the 2011 uprising, but Libya has failed to surrender him to The Hague despite an ICC order. On August 20, 2015, lawyers for Libya argued that it is not currently possible for Libya to comply with its obligation to surrender Gaddafi to the ICC.
Security Conditions in Libya
Deteriorating security conditions and the collapse of central authority undermine the ability of the Supreme Court to provide an impartial remedy and strain the ability of trial judges to adjudicate such highly sensitive cases in an independent and impartial manner.
Two de facto governments are currently vying for legitimacy in Libya – the internationally recognized government based in Tobruk and al-Bayda in eastern Libya, and the rival self-declared authority based in Tripoli, where the Supreme Court and Al-Hadba prison are located. A year-long attempt by the United Nations to broker a deal for a unity government has so far failed.
Meanwhile security in Tripoli, including around al-Hadba, remains precarious. On September 9, unidentified assailants carried out a car bomb attack outside the prison wall. There were no injuries, the al-Hadba director said. He said unidentified assailants also dropped an improvised explosive device (IED) into the compound several months earlier. And on September 30, unidentified gunmen kidnapped al-Mabrouk Mohamed Zahmoul, a former director of a government investment company, upon his release from al-Hadba where he had been held for four years on charges of aiding the former government. His whereabouts remain unknown.
The International Covenant on Civil and Political Rights (ICCPR), to which Libya is a state party, limits the circumstances in which a country can impose the death sentence. The United Nations Human Rights Committee, the body that interprets the ICCPR, has said that “scrupulous respect of the guarantees of fair trial is particularly important” in trials that result in the death penalty. Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and inhumane punishment.
The ICCPR also guarantees a defendant’s right to call and examine witnesses on the defendant’s behalf under the same conditions as prosecution witnesses.
International fair trial standards, including the Convention Against Torture to which Libya is a signatory, prohibit the use of confessions or evidence obtained under torture in ongoing trial proceedings. The African Principles on Fair Trial go further and stipulate “any confession or other evidence obtained by any form of coercion or force may not be admitted as evidence or considered as probative of any fact at trial or in sentencing. Any confession or admission obtained during incommunicado detention shall be considered to have been obtained by coercion.”
Prolonged solitary confinement, while not prohibited by international human rights law, can be inconsistent with respect for inmates’ humanity and can violate the prohibition on cruel, inhuman, or degrading treatment. In some circumstances it may even amount to torture.
The Libya general prosecutor, Ibrahim Bashiya, authorized the Human Rights Watch visits, and al-Sur, the head of investigations unit at the General Prosecutor’s Office, and al-Sharif, the al-Hadba director, facilitated the visits.
Sanussi told Human Rights Watch that he had no lawyer during the entire interrogation phase or during the pretrial phase, when he was charged with serious crimes that stipulated the death penalty. Sanussi said he had not yet read the full verdict against him, as he had no access to it, but has submitted a 17-page memo containing his appeal.
He said the main witnesses in his case, naming three prominent Libyans, did not appear in court and that the prosecutor depended on “fabricated testimonies.” Sanussi said he wanted to confront these witnesses but was not able to. He added that one of the prosecution witnesses, Mansour Daw, a co-defendant also sentenced to death, said during a court session that the prosecution had offered him a deal to release him if he testified against Sanussi.
Sanussi said he had been able to meet with his lawyers during the trial, but was never left alone with them. He said the presiding judge did not allow him to speak during the plea sessions when his defense was presented despite several requests to address the judges directly, telling him, “Your lawyer speaks for you.” Sanussi said he tried to defend himself against “fabricated” charges of his alleged role during the 2011 uprising yet “was not allowed to” present his case.
Sanussi said that the Libyan government’s extradition agreement with Mauritania, where he had lived with his family after the revolution ended, included a substantial payment.
“I insist on a re-investigation of my case by the International Criminal Court,” Sanussi said during the interview. “How can they allow them [the Libyan authorities] to try me in Libya? They know there is the death sentence [in Libya].”
Sanussi said he had been held in solitary confinement though he received some family visits and was allowed to call his wife on occasion. He did not comment on prison conditions.
Al-Mahmoudi said he did not have a lawyer during the entire interrogation phase, and once he had access to a lawyer, was not able to meet with him privately. He said he was threatened and tortured during the interrogation by the prosecution. He alleged he was tortured with electricity four times. He said that his treatment had changed recently and that it “started to get better and more brotherly.”
He said the group trial in which he and the others were convicted had 26 sessions, but that lawyers were allowed to present their pleadings only at three sessions, and the rest were formalities. Al-Mahmoudi said the presiding judge allowed the defense to call only three witnesses, citing time constraints and “pressure from the general public.”
He said his lawyers were not able to “tell the truth” in court for fear of reprisals and that he was not able to confront any of the prosecution’s witnesses against him. He said he was allowed to speak in court, but that the judge interrupted him and that he did not get the full right to defend himself. He said he had signed necessary documents so his lawyer could submit an appeal of the death sentence on his behalf. He said the final sentence mirrored the original indictment sheet, indicating that the verdict was set from the beginning.
He said he had some family visits and was allowed to speak on the phone with family members twice. He said he suffers from several chronic diseases including cardiac and blood pressure issues, diabetes, and asthma, but he did not comment about detention conditions.
Abu Zaid Dorda
Dorda said that at least three lawyers his family had asked to represent him withdrew due to pressures from armed groups and that he was never allowed to speak in private with any of them. He said he hired his current lawyer during a court session two or three weeks before the final defense sessions after the last one withdrew.
He said he asked the judge to allow a private visit with his current lawyer, but that prison authorities insisted on attending the meetings. He said they recorded everything he said to his lawyers, and that prison authorities photocopied even the testimony he wrote for his lawyers.
During the trial sessions, Dorda said, he was able to speak from time to time. But during the final plea sessions, when he attempted to speak, the judge refused, saying, “You have a lawyer.” Dorda said none of the key witnesses in his case appeared in court. He said the judge had allowed him to present two defense witnesses at one session, but that they were in in the eastern part of the country and could not come to Tripoli to testify due to security concerns.
Dorda said he believed the judges did not have sufficient time before they delivered their verdicts to read all the submissions and testimony submitted on behalf of the 37 defendants who were originally co-defendants in the trial.
Dorda, who said his health remains fragile due to an accident at the beginning of his detention, said he had been held in solitary confinement since his arrest three years earlier. He did not complain about the current prison conditions and said he receives some family visits, although a guard is always present.
On September 19, Human Rights Watch met in Tripoli with one of the defense lawyers for several defendants. He said he had been threatened by armed groups because he took on the former officials’ defense. The lawyer said that the authorities refused his repeated requests to meet privately with his clients, though private meetings are a key due process guarantee. He said the al-Hadba prison authorities either recorded the whole interview or remained in the room during the meeting.
He said defense lawyers did not have sufficient time to prepare their cases and that judges told defense lawyers who complained, “If you‘re not ready for the pleading we will hire public defenders in your place.” The lawyer said he had obtained the full 500 pages that he requested for the case, but did not have sufficient time to go through all the documents in time for the final pleading. He also said the prosecution “concealed” crucial court documents including the 36,000 pages of evidence. He said some lawyers were able to obtain some of these documents after specific requests.
He also said that using space within the prison complex for a courtroom was not suitable and that there had been a lack of proper court procedures. He said that guards “treated lawyers badly” and turned some of them away on several occasions.
The lawyer also said that the prosecution used the original interrogation records, instead of finding evidence against the defendants. “The revolutionaries carried out the interrogations, but we do not even know their identity,” he said. When questioned by the lawyers, the prosecution referred to the transitional justice law, saying the law allowed for use of the interrogation material and for indefinite pretrial detention. He also said several defendants had been ill-treated in the prison, yet that the prosecution did not follow through with the promised investigation.
The lawyer said the work of the prosecution in collecting evidence did not rise to the level of the severity of charges that stipulated capital punishment, such as for murder. He said that given the severity of the charges, he believes that not all due process guarantees were granted in the trial, and that there had been “a huge mixing of issues on the part of the prosecution without presenting any conclusive evidence.”
The lawyer said the court restricted him to calling only two or three defense witnesses in each case. He said this violated Libyan law, as the court cannot refuse a witness without giving a plausible justification. He also said that some of the witnesses who did make it to the court were not allowed inside. He said that guards insulted one witness for testifying on behalf of the officials and even beat the witness.