June 26, 2013

II. Background

Lebanon’s Laws on Homosexuality, Drug Use, and Sex Work

This report focuses on police abuse against three populations: drug users, sex workers, and lesbian, gay, bisexual, and transgender (LGBT) people. Members of these groups are easy targets for police abuse from the moment police suspect “wrongdoing” through their arrest, detention, and police investigation of the case. Police are not immune to the prejudice and social stigma attached to these groups. As described in this report, police often arrest individuals arbitrarily and without evidence on the grounds of what the police themselves describe to be “suspicious behavior.” Police may even arrest individuals on the grounds of specific appearances ascribed to members of these groups—for example, because someone “looks gay” or “looks suspicious” in the eyes of the police.

To varying degrees, sex workers, drug users, and LGBT people are marginalized socially and institutionally. The combination of such marginalization and laws that criminalize sex work, drug use, and homosexuality in the Lebanese Penal Code makes members of these groups reluctant to file complaints against police members, which creates an environment in which police can abuse them with impunity.

Victims sometimes choose not to file complaints due to direct threats from the police and other times due to fear of retaliation—police can arbitrarily re-arrest them at any time. Another factor is fear of public exposure of their behavior, work, or identities as drug users, sex workers, or LGBT people. Sometimes individuals simply lack faith in the ability of the criminal justice system to deliver justice—part of a broader problem of trust in public institutions in Lebanon. The strong view expressed by many victims of police abuse we interviewed is that the police exert complete control over their lives and may act with impunity and that they are powerless to defend themselves against police abuse and mistreatment.

The police do little to hide their disdain of sex workers, drug users, and LGBT people. Victims say that physical violence by police is common and is often used as a form of punishment, discipline, and behavioral correction. Verbal abuse, degradation, and humiliation appear to be so widespread that many victims tended not to mention them when telling their stories, viewing such behavior as unremarkable. For members of these vulnerable social groups, the police not only represent law enforcement, but also act as judge and jury in many ways. As described below, Lebanon’s laws facilitate such abuse.

Homosexuality

Article 534 of the Lebanese Penal Code states that “any sexual intercourse contrary to the order of nature is punishable by up to one year in prison.” Homosexuality is not explicitly outlawed but rather is typically assumed to be “contrary to nature.”  The provision does not define what might constitute “nature,” leaving a large margin of interpretation to individual judges, who have used it to prosecute people suspected of homosexuality.

One case that received considerable media attention demonstrates how the law can also be interpreted otherwise. In February 2007, a police patrol arrested two men sitting in a parked car in Batroun, a city in the north of Lebanon. The police suspected the two men of engaging in homosexual sex. The presiding judge, Mounir Suleiman, ordered a halt to the criminal investigation into the behavior of the men on the basis that the evidence was weak and, more importantly, on his interpretation of the concept of “contrary to the order of nature.” The judge noted that what is considered unnatural is closely linked to “the mood of a society and its traditions,” and emphasized the willingness of society to accept new or emerging “norms of nature.”[3] He added:

Man is part of nature and one [of] its elements and one [of] its cells and no one can say that any act of his acts or behavior is contradicting nature even if the act is criminal or offending simply because these are the rules of nature. If the sky is raining during summertime or if we have hot weather during winter or if a tree is giving unusual fruits, all these can be according to and in harmony with nature and are part of its rules themselves.[4]

Although article 534 of the Penal Code by its terms applies only to acts of sexual intercourse, however ill-defined, police have invoked the law when arresting individuals based solely on their appearance or mannerisms without evidence of any sexual act, a reflection of stereotyped and prejudiced assumptions about sexual orientation. Human rights lawyer Nizar Saghieh conducted a study for the Lebanese LGBT organization Helem in which he examined how article 534 is used in Lebanese courts to prosecute men suspected of homosexuality. In his report he highlights a case from 2009 in which a woman reported her son to the police for suspected “homosexuality” because he was “acting like a woman.”[5] This was enough for the public prosecutor to arrest and interrogate the young man and force him to submit to an anal examination. Anal examinations have no scientific or medical validity. In this case, the state-appointed medical examiner decided that there was no conclusive evidence to prove that homosexual sex had occurred.  According to Saghieh, the young man was indicted anyway based on the public prosecutor’s assumptions about the man’s behavior and mannerisms. The judge eventually dismissed the charges for lack of evidence. Saghieh uses this case to demonstrate the danger of the police and the public prosecutor acting on prejudice toward certain behaviors, appearances, and lifestyles.[6]

Saghieh’s study also explored how the detention procedures used by police against suspected homosexuals violate Lebanese criminal procedure laws and pre-emptively punish men suspected of homosexuality through lengthy periods of temporary detention.[7] Saghieh reviewed over 50 court cases and concluded that persons suspected of “unnatural” sexual relations are commonly detained without charge for an unnecessarily long period, exceeding the 48-hour maximum stipulated by article 47 of the Code of Criminal Procedure, even in cases where the evidence is extremely weak.

Article 534 is also sometimes used as a corrective measure by parents unhappy with their children’s sexual orientation, illustrating the pernicious synergy that can exist between social stigma and discriminatory laws. Walid, 24, told Human Rights Watch that his mother told the police to arrest him and detain him for a night at the police station in order to “scare” him out of being gay, a request he says the police complied with.[8]

Sex Work

Sex work is highly regulated in Lebanon. The law regulating sex work, which dates from 1931, stipulates that female sex workers must be registered and must undergo medical examinations, cannot be virgins, and must be older than 21. Article 7 of the 1931 law further stipulates that they can only practice sex work inside brothels. Article 523 of the Lebanese Penal Code punishes “any person who practices secret prostitution or facilitates it” with a prison sentence ranging from one month to one year, and the law is applied quite rigorously. Male sex workers are not addressed in the law.

Since the late 1960s the government has stopped issuing new licenses for brothels. This means that in practice most sex work is unlicensed and illegal. “Super Night Clubs” have emerged to bypass these restrictions. These institutions, halfway between brothels and strip clubs, provide a space for clients and sex workers to meet, but sex takes place off-site, and therefore they do not require a brothel license. They form the crux of a regulated sex industry that currently employs an estimated 2,500 women, mainly from Eastern Europe. Women enter and stay in the country on six-month “artist” visas. The Super Night Club industry is regulated and monitored by the General Security Department on the basis of administrative directives. They are aware that the women employed engage in sex work, as evidenced by the fact that they require the women to undergo periodic HIV/AIDS and STI testing. According to the UN special rapporteur on trafficking in persons, the General Security Department issues “around 5,000 artist visas every year, meaning that at any given point there are approximately 2,500 ‘artists’ in the country,” as the visas are granted for six month periods.[9] In her report, the special rapporteur adds:

In an attempt to shield the regulated sex industry from public opprobrium, the General Security Department also tries to reduce the women’s public visibility and limit their contacts with the general population.  It would seem that the rule limiting the women’s stay to six months serves mainly this purpose.  Furthermore, the women are only allowed to reside in hotels authorized by General Security and must not leave the hotel between 5 a.m. and 1 p.m.  If they are sick, they may only absent themselves from work if a physician accredited by the General Security Department diagnoses them as unfit.  These rules play into the hands of exploitative impresarios who rely on strategies of isolation to subdue their victims.[10]

By contrast to the predominance of Eastern European women in the Super Night Clubs, workers in the unregulated sector of the sex work industry are mainly poor Lebanese and migrant women from Arab countries such as Syria and Iraq as well as some countries in Asia and Africa. Poverty, the illegal nature of their work, and their precarious migrant status all leave them particularly vulnerable to police abuse.

Drug Use

Drug use or possession is punishable by up to six months in prison and a fine of Lebanese Lira 100,000 (approximately US$66). The law does not differentiate between the types of drugs used.[11] Additionally, individuals convicted of selling illegal drugs or “facilitating the use of illegal consumption of drugs for others in any way” are given prison sentences between six months and three years and a fine of LL100,000 to LL500,000 (approximately US$66 to US$332).[12] According to statistics from the Drug Repression Bureau, as reported by Skoun, a Lebanese addiction treatment center, 2,228 drug users were arrested in 2009 and almost half of them were aged 18-25.[13]

The “facilitation” of drug use is an ill-defined concept, and could potentially include simply using drugs in the company of others. “Facilitation” significantly raises the sentence for many drug users. Seventeen drug users told Human Rights Watch that police often tried to manipulate them into admitting to facilitation after they were arrested for use or possession just because they used drugs around their friends that joined them.

Lebanon’s drug law, passed in 1997 stipulates that drug users have the choice between treatment and incarceration. The law includes a number of provisions that treat drug use as a public health issue, but other provisions do not. And provisions that take a public health approach have not been fully implemented. According to a study by Skoun, 40 percent of the judges interviewed indicated that they never issued a primary or final verdict requiring the individual to commit to treatment as an alternative to incarceration; only 4 percent indicated that they had done so regularly.[14]

Article 183 of the drug law allows drug users the option of presenting themselves before a state-administered Drug Addiction Committee (DAC), a body tasked with referring drug users to government-affiliated treatment centers and responsible for following up on the progress of their treatment. The DAC is comprised of a judge, a representative of the Ministry of Social Affairs, a doctor from the Ministry of Public Health, a representative of the Drug Repression Bureau, an expert drawn from private institutions, and other individuals recommended by relevant bodies.[15]  Additionally, article 200 states that the Ministry of Public Health should create at least one specialized treatment center.

Further, article 200 requires the Ministry of Social Affairs to pay a monthly stipend to the dependents of drug users should their treatment impede their ability to support their families.

The law stipulates that treatment should be completely funded by the state. Should the drug user stop treatment for any reason, the committee should inform the prosecution in order that it restart the trial; however, should the user recover, the committee should issue an attestation that leads to charges being dropped.

In practice, the committee is not functional and does not have an operational budget. Despite this, some judges act on their own initiative and refer drug users to NGOs specialized in drug addiction treatment. According to Nadya Mikdashi, executive director of Lebanese drug addiction NGO Skoun, such referrals are a welcome attempt by judges to uphold the law but they are not done within a structured referral system nor are they sustainable as there is no protocol for communication between the courts and NGOs. There are fewer than 10 NGO rehabilitation centers in the country and they are mostly centralized in Beirut and Mount Lebanon.[16] Most drug users are simply given jail time, usually from three to six months.[17] In reality, even if drug users do go to rehab, it is not guaranteed that prosecutions will be dropped.

The weak legal framework and the lack of proper implementation of the law leaves the police a wide margin to subject drug users to various forms of abuse. For example, according to statistics provided by the ISF’s Drug Enforcement Bureau to Skoun, around one third of drug users are arrested through denunciation by other arrested drug users, and our research suggests that such denunciations are often extracted by force.[18]

The criminal records of individuals convicted of drug use are often an obstacle to gaining employment after release from prison. Ibrahim was arrested nine times between 1989 and 2007 and has been in treatment and drug-free since then. Ibrahim has been out of work for five years, with potential employers refusing to give him a job because of his criminal record. Ibrahim told Human Rights Watch that he could pay a US$600 bribe to clean up his record, but he does not have that kind of money. “It’s a vicious circle I’m trapped in,” he said. “I will forever be punished for using drugs in the past.”[19]

Lebanese Security Forces

The Internal Security Forces (ISF) are Lebanon’s main police forces composed of administrative and operational branches. The ISF falls under the jurisdiction of the Ministry of Interior. The main ISF department implicated in the cases of abuse and torture documented in this report are the Judicial Police, particularly the Drug Repression Bureau (DRB) unit.

The Judicial Police is the main body responsible for the arrest and detention of accused individuals and also for the investigation of crimes. Technically, the Judicial Police operates under the jurisdiction of the public prosecutor’s office, the investigative judge, and the courts. The reality is very different. As this report and others show, detainees are often subject to the whims of judicial police officers, the latter facing little or no oversight or accountability.[20]

The DRB is a branch of the Judicial Police responsible for investigating drug-related crimes. Our research shows that the DRB uses torture to extract confessions, to force detainees to name other users or dealers, and even as a form of punishment. The DRB has four detention and interrogation centers. The central station is in Beirut (Hobeish police station, which also houses the vice unit); a second is in southern Lebanon in the city of Saida; a third is in the Bekaa valley in the city of Zahleh, and the fourth is in the northern city of Tripoli.

The legal procedure governing the arrest of suspects is outlined in Lebanon’s Code of Criminal Procedure.  The public prosecutor must order the arrest, which is then carried out by the Judicial Police. The suspect must be brought before an investigative judge to be charged within 48 hours, renewable once on order from the public prosecutor. The investigative judge decides whether the suspect should be released or detained for the duration of the investigation or trial, a decision which the suspect may appeal. A suspect charged with a minor offense may be detained in this manner for two months, renewable once; a suspect charged with a serious offense may be held for up to six months, also renewable once. However, all suspects previously sentenced to a prison term of a year or more may be held for an unlimited period of time.

The ISF suffers from a lack of professionalism. Police cadets receive a basic military training and limited theoretical information with no practical training in methods of investigation or interrogation. This is insufficient compared to the actual needs. Clear standard operating procedures for investigation and standardized, structured reporting forms for investigation procedures have only recently been developed in the framework of an EU-funded project and have yet to be widely applied. According to an official at the European Union delegation in Beirut who has been working with the ISF since 2007, there is a real need for such standardized procedures because much of the evidence submitted by the ISF is rejected by the judiciary because the work is poor or shows procedural gaps.[21] Additionally, unstructured reporting makes it difficult for a judge to exploit findings in large investigations. Despite US- and EU-funded programs to train the ISF in proper and scientific investigation and interrogation techniques, prevailing culture and practices within the ISF and the prosecution still focuses on interrogation and on pushing for a confession from the suspects, rather than proving their guilt on the basis of objective and scientific evidence.

Torture in Lebanese Law

Lebanon ratified the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) in 2000 and the Optional Protocol to the CAT (OPCAT) in 2008. However, the definition of torture in the Lebanese Penal Codefalls short of the international standards set out in the convention. Accordingly, the Working Group on Lebanon’s Universal Periodic Review before the UN Human Rights Council in January 2011 specifically recommended that Lebanon make several revisions to its definition of torture and criminalize all forms of torture and ill-treatment.[22]

The Lebanese Penal Code treats torture as a minor crime and sets forth an overly restrictive definition of the offense. Article 401 of the Penal Code states,

Anyone who inflicts violent practices not permitted by the law against another person with the intention to extract a confession of a crime or information related to it will be imprisoned for three months up to three years. If the violent practices have led to illness or wounds, the minimum period of imprisonment is one year.[23]

The phrase “violent practices not permitted by the law” unduly limits what can constitute torture. Additionally, according to article 401, violence can only amount to torture when it is used to extract confessions, excluding the use of torture to punish, intimidate, coerce, or as a form of discrimination. And the maximum prison term of three years treats the crime as a relatively minor one, deserving of a relatively light penalty.

The shortcomings of Lebanon’s definition are clear when viewed next to the comprehensive definition set forth in the UN Convention against Torture:

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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[24]

While another provision of Lebanese law invalidates all statements extracted under duress, that provision is often violated in practice, as detailed in this report.[25] 

Nineteen cases documented in this report show evidence that police use torture as well as cruel and degrading treatment to punish suspects for “immoral” acts such as drug use or various sexual offences. Seven people told Human Rights Watch that police officers who beat them said that they wanted to “teach them a lesson.” The Lebanese definition of torture is too narrow to apply to such cases.

When a Human Rights Watch researcher filed a complaint against an ISF officer for harassment and intimidation that the researcher herself had experienced at the hands of the ISF, the head of the Msaitbeh police station told her that “it’s normal for a police officer to slap a detainee around—it’s part of the job. You, human rights people, turn everything into a huge deal.” Such sentiments make a mockery of the ISF’s Code of Conduct, which explicitly states that “police members will not practice, incite, or disregard any act of torture or any cruel, inhumane, or degrading treatment during investigations and during the execution of their missions.”[26]

[3] International Commission of Jurists (ICJ), Sexual Orientation, Gender Identity, and Justice: A Comparative Law Casebook (Geneva: ICJ, 2011), p. 43.

[4] Ibid.

[5] Helem, “Homosexual Relations in the Penal Codes: General Study Regarding the Laws in the Arab Countries with a Report on Lebanon and Tunisia”, 2010, http://www.helem.net/node/188 (accessed February 4, 2013).

[6] Ibid.

[7] Ibid.

[8] Human Rights Watch interview with Walid, Beirut, Lebanon, May 14, 2010.

[9] UN Commission on Human Rights, Report of the Special Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and children, Sigma Huda, Mission to Lebanon, E/CN.4/2006/62/Add.3, February 20, 2006.

[10] Ibid.

[11]The Narcotic Drugs and Psychotropic Substances Act No. 673 of 16 March 1997.

[12] Ibid.

[13] Skoun, “Situational Needs Assessment 2009”, September 2011, http://www.opensocietyfoundations.org/sites/default/files/skoun-situational-needs-assessment-summary-20111114.pdf (accessed February 4, 2013).

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Skoun, “Situational Needs Assessment 2009”, September 2011, http://www.opensocietyfoundations.org/sites/default/files/skoun-situational-needs-assessment-summary-20111114.pdf, p. 33 (accessed February 4, 2013).

[19] Human Rights Watch interview with Ibrahim, Zahleh, Lebanon. May 14, 2012.

[20] Amnesty International, “Torture and ill-treatment of women in pre-trial detention: a culture of acquiescence,” AI Index: MDE 18/009/2001, August 2001, http://www.amnesty.org/en/library/info/MDE18/009/2001, (accessed February 4, 2013).

[21] Human Rights Watch interview with official at EU Delegation, Beirut, Lebanon, November 9, 2012.

[22] UN Human Rights Council, “Report of the Working Group on the Universal Periodic Review: Lebanon,” A/HRC/16/18..

[23] Lebanese Penal Code, art. 401.

[24] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 2987, article 1.

[25] Specifically, article 47 of Lebanon’s Code of Criminal Procedure states that “If [suspects] refuse to speak and remain silent, this must be mentioned in the official report. They must not be forced to speak or to be interrogated, under penalty of invalidity of their statements,” while article 77 states that “the Examining Judge must take into consideration the principle of freedom of will of the defendant during his interrogation. He must ensure that the defendant gives his statement without any external influence, be it moral or physical. If the defendant refuses to answer and remains silent, the Examining Judge does not have the right to force him to speak.”

[26] Internal Security Force Code of Conduct, art 5.