Right to life, liberty and freedom from torture and inhumane treatment
28. The right to life is protected under the law, which envisages severe penalties for murder. Domestic law does allow for the imposition of the death penalty but only for specific serious offences and it prohibits its arbitrary imposition. In fact, the death penalty is surrounded by legal safeguards and must be reviewed and upheld by the Supreme Court.
These provisions are consistent with article 6 (2) of the International Covenant on Civil and Political Rights.
29. Libyan law criminalizes torture and cruel and inhuman treatment while the draft constitution imposes an obligation upon the State to protect human dignity and to combat torture and cruel and inhuman treatment. Such offences are not subject to any statute of limitations. As part of steps taken to eliminate torture, Act No. 10 of 2013 was passed, which criminalizes torture, enforced disappearance and discrimination. Under the Act, torture is a crime that attracts a prison sentence of not less than 5 years. The Criminal Code also identifies torture as a criminal offence perpetrators of which are liable to imprisonment.
30. The Ministry of the Interior issued circular No. 1 of 2019 to draw the attention of all its staff to the need to follow rules regarding the humane treatment of anyone detained, arrested, searched or held in provisional custody under legal or judicial procedures.
31. With reference to the recommendation concerning arbitrary detention, the right to freedom is enshrined in the Constitutional Declaration and reiterated in the draft constitution, article 64 of which stipulates that all persons have the right to personal freedom. The Code of Criminal Procedure surrounds provisional detention with a number of safeguards intended to ensure that it is used only exceptionally and when alternative methods cannot be applied. Under the Code, persons who have been arrested pending a criminal case are to be brought before the Office of the Public Prosecution within no more than 48 hours while accused persons in detention must have their cases examined by the courts, which are to rule on the legality of their detention.
32. In order to promote the right to freedom and to prevent the abuse of preventive custody, the draft constitution contains a separate article entitled “Procedural safeguards”, which imposes a set of measures designed to restrict recourse to such custody. Under that article, detention orders are to be issued by a competent authority, persons may be detained only in places legally designated for that purpose and detainees’ families must be told where they are being held. Moreover, officials of prisons or correctional institutions may not admit anyone without a written order from a competent judicial body, while all institutions housing inmates are subject to judicial oversight to ensure that no one is being held there arbitrarily.
33. Since coming to power, the Government of National Accord has noted the existence of the problem of arbitrary detention and is working to put an end to what is, in effect, a legacy it inherited from previous governments. In this regard, it has taken action to close illegal detention centres, improve conditions for inmates and detainees, and release persons whose terms of imprisonment have expired. Moreover, the Presidency Council issued Decree No. 1301 of 2018 and Decree No. 1304 of 2018, one of which concerns the release of all detainees and prisoners in prisons and other places of detention whose term of imprisonment has extended beyond the legal limit, while the other regards persons detained in the Mitiga reform and correction facility and any other places of detention and the verification that detention procedures are consistent with current criminal legislation. The Council also issued Decree No. 1307 of 2018, which envisaged the formation of a entered into partnership with the United Nations and its specialized agencies to improve the skills of police officials responsible for managing prisons and other correctional and rehabilitation institutions, particularly as concerns respecting the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Hundreds of police officers and enlisted personnel have received training on internal and external courses.
35. The Ministry of the Interior has issued standing instructions and circulars to all government departments and agencies outlining the importance of complying with the legal procedures governing arrests and placement of persons in detention and warning that anyone responsible for the illegal or wrongful detention of persons will be subject to disciplinary and criminal proceedings (Ministry of the Interior circular No. 6443).
Recommendations regarding the investigation of human rights violations and the prevention of impunity
36. By law the police and judicial authorities are required to investigate and prosecute those responsible for breaking the law and breaching human rights. The Ministry of the Interior oversees criminal investigation departments and law enforcement officials, who are legally responsible for receiving complaints and reports of crimes and violations. Their work is supervised by the Office of the Public Prosecution, which is entrusted with criminal prosecutions and has a legal duty to prosecute and try those who perpetrate violations. The Public Prosecutor’s office keeps records on all violations of the rights of persons. It maintains files, initiates investigations and has laid charges against many persons suspected of involvement in human rights violations such as murder, unlawful detention, torture and so on.
37. The Government is continuing to cooperate in the case of the disappearance of Imam Moussa Al-Sadr and his two companions. A committee has been created to follow up on this matter from the Libyan side and another on the Lebanese side. The two committees have held a number of meetings, both in Libya and abroad, and coordination between them is continuing. Investigations into this case are still ongoing in Libya and the outcomes have been communicated to the Lebanese.
38. With regard to the recommendation to ensure the independence of the judiciary, it should be noted that such independence has been greatly strengthened thanks to legal and executive measures taken since 2011, when several amendments were introduced into the law that regulates the judiciary (the Judicial Organization Act). Under those amendments it is the Supreme Council of the Judiciary alone that can oversee the activities of judicial bodies and judicial personnel, with no interference from the legislative or executive branches. Judicial independence is also reaffirmed in the draft constitution, which envisages the judiciary as a separate authority the activity of which is regulated in a special chapter of the text. In fact, article 118 expressly stipulates the independence of the judiciary by describing it as an independent body the function of which is to administer justice, guarantee the rule of law and protect rights and freedoms. Under article 120, members of the judiciary may not be dismissed from office.
39. The Government is well aware of the difficulties the police and the judiciary have to face as they deal with allegations of human rights violations in the country’s current circumstances, the situation of political division, the military operations following the attack on the capital Tripoli and the concomitant serious violations of international humanitarian law and human rights. For that reason, under Presidency Council Decree No.
735 of 2019, the Government formed a joint commission to monitor and record human rights violations, its purpose being to document those violations and preserve evidence and testimony to be used by the competent national and international courts to ensure that perpetrators do not go unpunished. The commission began working from the moment it was established and has submitted two reports on the results of its activities covering all violations recorded between April 2019 and January 2020.
Acceding to international human rights treaties and the Rome Statute of the International Criminal Court and adapting domestic legislation accordingly
Recommendations Nos. 1–23
40. Delegations pointed to the need to accede to the Convention on the Rights of Persons with Disabilities; the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Convention for the Protection of All Persons from Enforced Disappearance; and the Optional Protocol to the International Covenant on Civil and Political Rights. In fact, the legal system in Libya is already consistent with the obligations stipulated in those treaties, and the rights enshrined therein will be further strengthened following the adoption of the permanent constitution, which makes respect for human rights an overarching principle governing the activities of public authorities and institutions. Likewise, the constitution attaches binding
force to international treaties within the Libyan legal system placing them above general legislation and below the constitution. However, it should be noted that political divisions and the absence of parliamentary cooperation with the Government of National Accord – which is the legislative authority competent to ratify such treaties – have made it impossible for the treaties to complete the legal process necessary for ratification.