December 12, 2009

X. The Death Penalty

Despite assertions by some Libyan authorities that the nation is working toward elimination of the death penalty, death sentences continue to be handed out and executions continue to take place.

Chief Justice of the Supreme Court President Dr. Abdulrahman Abu Tuta told Human Rights Watch that around 35 to 40 people are sentenced to death in Libya every year but that only 5% to 7% of these sentences are carried out annually. [187] He said that:

Death sentences are never implemented until the Higher Judicial Council, which is chaired by the Secretary of Justice, has reviewed the decision by the lower court both substantively and procedurally. Even after the decision is ratified, the decision is not carried out except four years later because the Libyan penal code gives the families of the victim a right to issue a pardon in exchange for diyya (blood money). If a payment is agreed, the case is returned by the General Prosecutor to the court which first issued the ruling, and the sentence is replaced with life imprisonment. There are very few death sentences that are actually carried out because there are often pardons issued. It is through a process of social reconciliation that Libyan society works towards decreasing the death penalty.[188]

Dr. Abdulrahman Abu Tuta said that around half of those sentenced to death were foreign nationals, either Egyptian migrant workers or irregular migrants from other African countries.

As it stands, the only chance for a prisoner to escape being sentenced to death is if an agreement over blood money is reached. Libyan law No. 6 provides for a right of Qisas (retribution) to the families of the victim, a concept adopted from Shari’a law which resonates strongly in Libyan society where tribal and familial ties remain strong. Therefore, the only way to get a death sentence commuted, other than through order of the Higher Judicial Council which only occurs in high profile cases, is to get the family of the victim to agree to give up their right to Qisas in exchange for blood money. This system allows commutation only when someone can pay, thereby excluding all those without financial means. It has also proved to be unreliable since bureaucratic delays have at times led to premature executions while negotiations over a settlement were ongoing.

A large number of Egyptians are on death row in Libya. Their cases have been publicized because of attempts by the Egyptian foreign ministry to intervene on their behalf. [189]  The Libyan authorities have carried out many executions, however, including another Egyptian national executed on November 10, 2008.[190]  An Egyptian NGO, the Arab Centre for the Independence of the Judiciary and the Legal Profession has been working with Waatasemu, the organization run by Dr. Aisha al-Gaddafi, and has successfully arranged for Diyya (blood money) payments in a number of these cases.

The unreliable nature of this system is highlighted by the fact that there have been cases where the death sentence is carried out despite an agreement over blood money for reasons of bureaucratic delays.  On July 29, 2009, Libyan authorities executed Egyptian national Fadl Ismail Heteita for murder after more than three years on death row. An agreement had been reached with the family of the victim to commute his death sentence in exchange for 30,000 Egyptian pounds ($ 5,400) but the Libyan Prosecutor General did not recognize the document because it had not been authenticated by the Egyptian Foreign Ministry.

The discussion in Libya about banning the death penalty is alive but has progressed little since it began in 1988 with the enactment of the Great Green Charter for Human Rights. Article 8 of the charter says: “The goal of the Jamahiriyan society is to abolish capital punishment.” On April 18, 2004, Mu’ammar al-Gaddafi gave a speech to the Supreme Council for Judicial Authority and other high-ranking members of the judiciary in which he called for a number of legal reforms, including a reduction in the number of crimes for which the death penalty is applied. Despite the leader’s call, the Basic People’s Congresses decided against abolishing capital punishment.  Al-Gaddafi repeated his call in a November 2004 speech to Libyan judges and law students that was broadcast on Libya’s state television.  Abolishing the death penalty should stem from societal progress, he said, and it “should not be the result of economic, political or security pressures like the ones piled on Turkey to win a European Union membership.”[191]

Despite these expressed positions, the Libyan penal code prescribes the death penalty for a broad range of crimes, including for actions which should be protected by the rights to freedom of association and expression. Article 3 of Law 71 criminalizes forming, joining or supporting any group activity opposing the ideology of the 1969 revolution that brought al-Gaddafi to power. Article 206 of the penal code imposes the death penalty on those who call "for the establishment of any grouping, organization or association proscribed by law," and for those who belong to or support such an organization.The UN Human Rights Committee noted with concern in its Concluding Comments to Libya’s state report that “under current legislation the death penalty can be applied to offences which are vague and broadly defined and which cannot necessarily be characterized as the most serious crimes under article 6, paragraph 2, of the Covenant.”[192]

Proposed reforms to the Libyan penal code would narrow the application of the death penalty but would still retain it for a number of crimes such as the purchasing of unfit or hazardous weapons (Article 145), attacks on foreign heads of state (Article 172), murder (Article 273) and murder accompanied by highway robbery (Article 345). Human Rights Watch notes and welcomes the fact that there has been a reduction in the new draft of the crimes for which the death penalty can be imposed and that it has been replaced with life imprisonment in many cases. However it urges that the death penalty in any remaining provisions be replaced with imprisonment since this is a more humane and modern punishment and there is no evidence that the death penalty serves as a deterrent.

The current global trend is towards the abolition of the death penalty and is best reflected in the December 18, 2007 General Assembly resolution 62/149 calling for a worldwide moratorium on executions. The resolution was adopted by a majority of 104 member states in favor, 54 countries against and 29 abstentions.  Human Rights Watch opposes the infliction of capital punishment in all circumstances because of its inherent cruelty and because it is most often carried out in a discriminatory manner.

 

[187] Human Rights Watch interview with Dr. Abdulrahman Abu Tuta, Chief Justice of the Libyan Supreme Court, Tripoli, April 21.

[188] Human Rights Watch interview with Dr. Abdulrahman Abu Tuta, Chief Justice of the Libyan Supreme Court, Tripoli, April 21, 2009.

[189] “Egyptian-Libyan Consular Delegation Meets to discuss the Issue of Egyptians on Death Row in Libya and the Situation of Egyptian Workers in Libya (Arabic),” El Masry Al Youm, December 11, 2008, http://www.almasry-alyoum.com/article2.aspx?ArticleID=189931&IssueID=1251 (accessed Sept. 30, 2009).

[190]  “Libya executes Egyptian prisoner... Those released thank the Egyptian Foreign Ministry for its intervention on their behalf (Arabic),” El Masry Al Youm, November 20, 2008, http://www.almasry-alyoum.com/article2.aspx?ArticleID=187213 (accessed Sept. 30, 2009).

[191]  “Gaddafi Wants Death Penalty Scrapped,” Reuters, November 2, 2004.

[192]UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article 40 of the Covenant : International Covenant on Civil and Political Rights : concluding observations of the Human Rights Committee : Libyan Arab Jamahiriya, 15 November 2007, CCPR/C/LBY/CO/4,  http://www.unhcr.org/refworld/docid/474aa9ea2.html (accessed 30 September 2009), para. 13.