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VI. The Penal Code

In 2003, Libyan authorities announced efforts to amend the country’s penal code, which came into effect in 1953 and had undergone only partial revisions since that time.  The government formed committees of legal experts to review the code, as well as the code of criminal procedure.

According to Secretary of Justice `Ali `Umar Abu Bakr, the experts were due to submit a new penal code to the Basic Peoples Congresses for debate at the end of 2005.  Under Libya’s political system, each congress may approve or reject the proposal, or approve it with reservations.  The code will come into force if approved by the General People’s Congress. Libyan authorities did not provide Human Rights Watch with a draft of the proposed new code, despite multiple requests.

The amendments are based on “broad lines and concepts” from the Great Green Charter for Human Rights, Secretary Bakr said.  In particular, the new code will attempt as much as possible to minimize imprisonment as a punishment, replacing it with financial fines.  And the death penalty “will be reduced to the greatest possible extent.”  The death penalty would remain, he said, for the “most dangerous crimes” and for “terrorism.”

Secretary Bakr did not explain how the new penal code would define terrorism aside from saying, “at the moment we consider terrorism to be anything that threatens the state.”  To be consistent with international standards, the new penal code should define terrorism precisely and narrowly, so as to exclude acts that are protected under the rights to free expression and association.

If reforms are to bring Libya’s penal code into accordance with international human rights treaties it has signed, moreover, authorities will need to revise broadly worded articles in the existing code that unduly restrict freedom of assembly and expression.  The following articles are of particular concern:

Article 166 imposes the death penalty on anyone who talks to a foreign state or its employees or anyone else working for that state or arranges conspiracies with that state or that person with the intention to provoke or contribute to an attack against Libya.

Article 167 orders imprisonment for anyone who,during peace, conspires with a foreign state or one of its employees with the intention to harm the Arab Jamahiriya of Libya’s military, political and diplomatic position.  The same penalty applies to whoever intentionally destroys or hides documents that he knows favor the rights of the Arab Jamahiriya of Libya over a foreign country. The penalty for these kinds of crimes is life imprisonment ifthe crimes were committed in war time or if the offender is a public employee or undertaking a public responsibility or if the government assigned him any other responsibility.

Article 178 orders life imprisonment for the dissemination of information considered to “tarnish [the country’s] reputation or undermine confidence in it abroad.”

Article 206 imposes the death penalty for 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.

Article 207 imposes the death penalty for “whoever spreads within the country, by whatever means, theories or principles aiming to change the basic principles of the Constitution or the fundamental structures of the social system or to overthrow the state’s political, social or economic structures or destroy any of the fundamental structures of the social system using violence, terrorism or any other unlawful means.”

Article 208 orders imprisonment for “whoever sets up, establishes, organizes or directs international non-political organizations, associations or bodies, or a branch thereof, without government authorization, or where such authorization is based on false or insufficient information.”

As mentioned above, the Libyan government did not provide Human Rights Watch with the current penal code draft, despite repeated requests.  However, the government did provide a draft to an Amnesty International delegation that visited the country in February 2004.  According to Amnesty, many articles in that draft were inconsistent with Libya’s commitment to international human rights law.  Vague terms in some articles, such as “spreading rumors,” “insult,” and “harming the reputation of the country,” could lead to the death penalty for the peaceful expression of political views, Amnesty said.⁴⁵

Amnesty highlighted a number of articles in the February 2004 penal code draft that could result in severe punishments, including death, for peaceful political activity, such as:

Article 152 – Imprisonment for any Libyan national who, while abroad, publishes news or rumors constituting lies or exaggeration or creates disturbances about the internal situation in Libya in a way that harms its reputation or shakes the confidence in it or carries out an activity that in any way harms the interests of the country.

Article 164 – Imprisonment for anyone who seeks to undermine the reputation of the goals of the Revolution or defames its Leader, as well as anyone who insults public authorities or the Libyan people.

Article 167 – Imprisonment for anyone who spreads rumors against the governing system or who demonstrates in protest against the governing system. Terms used in this section of the law include “spreading rumors” and “insult.”

Article 173 – The death penalty for anyone who calls for the establishment of any association or party which is against the Revolution in purpose and means, or which aims to harm its public authorities, or anyone who establishes, joins, administers or funds such an association or party.

Article 174 – Imprisonment of no less than ten years for anyone who promotes in the country principles or theories that aim at changing the governing system.

Article 175 –Imprisonment for anyone (except for a person’s husband, children or grandchildren) with knowledge of the crimes in Articles 173-174.

Article 176 – Imprisonment for anyone who establishes, organizes, or administers an international organization in Libya, without permission from the relevant authorities or with permission based on falsified information. It also imposes imprisonment on any Libyan national resident in Libya who joins or participates in any way, without prior permission, in any such organization.

In addition, Article 260 in the draft includes a definition of terrorism that is vague, opening the door the prosecution of individuals who are peacefully expressing political views.  Provision 5 of the article, for example, criminalizes “approaching or communicating with an association or society or organization or group or gang, whose headquarters are abroad, or anyone working for their interests with a view to undertaking terrorist act/s in the country or against its interests, even if abroad.”⁴⁶

Because the Libyan government did not provide Human Rights Watch with the most current draft of the new penal code, it is not known if the articles above remain in the current draft.