(Tripoli) - Libya's public prosecutor should drop the charges and not contest the appeal of a criminal conviction for "defaming" public officials. Tripoli North Court will hear the appeal of the case by Jamal al-Hajji, a leading political activist formerly detained by the Gaddafi government on January 23, 2014.
The District City Court on December 31, 2013, sentenced al-Hajji to eight months in jail with labor and imposed civil damages of 400,000 Libyan dinars (US$300,000). The charges were brought for comments on a television show about the draft political isolation law, aired on Libya's state channel, al-Wataniya, on February 13.
"It's disheartening that amid all the violence and real problems in Libya today, the public prosecutor is going after an activist for criticizing government officials," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "Libyan government officials had no business bringing this criminal action against al-Hajji in the first place."
On March 24, four of several people al-Hajji had named on the show filed a civil defamation suit against him. They are Foreign Affairs Minister Mohamed Abdelaziz; Mahmoud Jibril, chairman of the National Forces Alliance (NFA), the largest political block in parliament; Abdelmajid Mleigtah, head of the NFA executive committee and chairman of the board of the International Company, which owns a local satellite channel; and Jomaa Ali al-Osta, a businessman and owner of another local satellite channel.
Among other complaints, the plaintiffs accused al-Hajji of defamation for calling them "Gaddafi loyalists" and accusing them of being "agents" of the West and the United States, saying that the comments had caused them "moral harm." The plaintiffs used article 166 of the civil code, which stipulates that "every error that causes harm to someone obliges the perpetrator to compensate [the victim]," to seek damages of 250,000 Libyan dinars, (US$200,000) each. Under article 225 of the civil code, a person may sue for damages "for moral harm," with no upper limit for damages.
Both articles are vague and unclear and should be revoked, Human Rights Watch said.
Subsequently, the general prosecutor joined the four plaintiffs and brought criminal charges against al-Hajji under article 439 of the penal code, which bans "attacks against anyone's reputation by defamation," including public officials. The article stipulates a minimum prison term of six months or a fine of no more than 100 Libyan dinars (US$80) if the act of defamation occurred by way of the media, or in public. The punishments can be increased by one third if the plaintiff is a public institution or official. The Tripoli District City Court merged the civil and criminal suits.
The court's Directorate for Misdemeanors and Offenses, with Judge Mohamed Moammar al-Farjani presiding, found al-Hajji guilty in both cases and imposed the damages of 100,000 Libyan dinars (US$80,000) for each plaintiff and the prison sentence.
Osama Abu Naji, one of al-Hajji's lawyers, told Human Rights Watch on January 9, 2014, that there had been irregularities in the proceedings against al-Hajji, particularly denying his lawyers the right to review the witness testimony and to cross-examine the witnesses - in this case, the plaintiffs. The judge refused all requests, and the plaintiffs did not attend the court sessions, Abu Naji said.
Abu Naji also said that al-Hajji and his legal team did not attend a scheduled session on November 19, 2013, as they were told it was canceled. He said a court clerk told the lawyers that the judge had adjourned the session until January 26, 2014, because of "civil unrest" in Tripoli, after militia clashes resulted in the killing of 48 protesters.
But Abu Naji said that al-Hajji and his defense team learned from a media statement by the plaintiffs' attorney, Mohamed al-Tumi, on December 31, 2013, that the judge had pronounced the sentence against al-Hajji that day, without the defense team's presence or prior knowledge.
"In my 15 years as a lawyer in Libya, I've never before heard of such a steep fine against a defendant in a defamation case," Abu Naji told Human Rights Watch, concerning the 400,000-Libyan dinar (US$319,000) fine.
Al-Hajji was one of Libya's most prominent dissidents under the Gaddafi government. The government detained him from February 2007 until April 2009, then arrested him again in December 2009 and kept him in prison for four months on charges of "insulting judicial authorities." Al-Hajji was also detained at the onset of the uprising in February 2011 and remained in detention until the end of the conflict. He was freed on August 24, 2011. Since the overthrow of Muammar Gaddafi after the uprising, al-Hajji has been active as an activist and political commentator.
The Libyan government should revoke articles of its penal code, including article 439, which criminalize defamation, Human Rights Watch said. These provisions violate international law because they stipulate a prison term for defamation. Public officials should be able to seek redress for defamation, but in the form of damages, not a prison term.
International law requires public officials to tolerate a higher degree of criticism than ordinary citizens, and to avoid suits that would restrict speech and open discussion. This serves the public interest of encouraging debate by making it harder to bring a case against people for speaking critically of public officials and political figures.
The Libyan penal code imposes harsh prison terms for a range of vaguely defined crimes, including for "offending" public officials and "insulting" state authorities, provisions that restrict free expression. Since the removal of the Gaddafi government, prosecutors have relied on penal code provisions restricting speech to prosecute at least three other people for speech related "crimes," including blasphemy and defamation charges.
The government should order the public prosecutor to suspend enforcement of this provision, as well as other provisions unlawfully criminalizing free expression until the penal code is amended to remove them, Human Rights Watch said.
"Libyans should be free to criticize public officials, even if their criticisms are distasteful," Whitson said. "And public officials should have a thicker skin, and accept that they must tolerate sharp public criticism, without running to the courts to silence their critics."