As Tariq Awwad stood at the entrance of Emile Helou Police Station in Mar Elias Street, Beirut, he emptied a bottle of petrol over his head and clothing and attempted to set himself alight. Protestors gathered around him and intervened. They rinsed him with water before asking him why he wanted to immolate himself. Tariq answered with another question: “Where is my son Jamil?”

Jamil was one of dozens of youths arrested during the protests in downtown Beirut during the first two days of Lebanon’s 17 October 2019 uprising and whom the authorities did not allow to make any phone call or meet a lawyer, in violation of Article 47 of the Code of Criminal Procedure. Tariq Awwad may not have known about this legal text, but he felt that he must surely have a natural right to know where his son was held and to check on him, especially after he watched security forces using excessive force to break up the protests on television. Hence, amidst this uncertainty and the authorities’ refusal to disclose his son’s whereabouts, Tariq’s shocking act was akin to a desperate plea for Article 47 to be applied.

On the sidewalk opposite the station, lawyers Abdallah and Laure were swept with anger as they watched Tariq drenched in petrol and water. They understood well the importance of Article 47 as a fundamental safeguard of essential civil rights, such as personal liberty, defense rights, the presumption of innocence, and protection from violence, torture, and abuse of authority in general. They also kneow how difficult it hads been to compel the security forces to comply with this article over the years. They entered the police station determined to wage the Article 47 battle once again.

In this article, Abdallah and Laure represent all the male and female lawyers and rights-defenders who volunteered to defend detainees of the October uprising, especially within the framework of the Lawyers’ Committee for the Defense of Protesters (LCDP), which was established in 2015 in partnership with the Legal Agenda. Through these two figures, I will relate the battles that all these people fought with the custody authorities, namely the Public Prosecution offices and security forces, to uphold detainees’ defense guarantees. While these authorities had previously been reluctant to apply Article 47, the October 17 uprising breathed new life into this legal text, which became the focus of one of its main rights battles. And although the uprising managed, through its dynamics and the strength of the lawyers’ movement (particularly the LCDP), to win many of these battles for defense rights and thereby achieve an extremely important rights gain, the struggle to entrench and fortify this gain continues. The latest sign of progress is Parliament’s adoption, on 30 September 2020, of a law to amend Article 47 in a manner that strengthens defense rights.

Part 1: Article 47 Before October 17

The Story of Article 47: What Is Its Significance to Defense Rights?

Article 47 of the Code of Criminal Procedure is the cornerstone of the sacred right of defense, which undoubtedly stands among the natural, constitutional, and international rights. This article is the explicit legal text that enshrines the minimum guarantees enjoyed by all suspects from the first moment of their custody and throughout the investigations conducted by the judicial police, i.e. the security forces that investigate crimes at the first stage of criminal prosecution. Article 47 enjoins these forces to inform detainees of their rights and facilitate their exercise. The most important of these rights and guarantees include[1]:

• The judicial police may not detain suspects except with a decision from the Public Prosecution and for a period not exceeding 48 hours, renewable once with the Public Prosecution’s consent.
• Detainees may remain silent and not be coerced into speaking (and hence have a right not to incriminate themselves).
• Detainees may contact an acquaintance or lawyer (and hence inform this person of their detention and where they are being held).
• Detainees may meet with a lawyer that they nominate via a declaration noted on the record, without the need for a power of attorney document. (Hence, they have a right to obtain legal counsel).
• Detainees may receive a medical examination (and hence have their health checked and any signs of violence documented).

These guarantees are no formality. They enable us to exercise our rights to defend ourselves, especially in the face of practices aimed at weakening and isolating us during the stage of preliminary investigations, whenever the government decides to, via the penal system, seize our bodies and deprive us of the personal liberty protected under Article 8 of the Constitution. They constitute the most important legal means of protecting our right to be presumed innocent (Article 11 of the Universal Declaration of Human Rights) and preventing the crimes of forced disappearance, illegal deprivation of liberty, and torture and coercion, as well as breaking the physical and mental isolation of detention.

While these guarantees entered the Lebanese legal system as part of the comprehensive amendment of the new Code of Criminal Procedure conducted in 2001, the division over this law and hence this article constituted, amidst the political divide that existed at the time, one of the main political-legal battles against the control of the Syrian regime and the political forces dominating the judiciary. The battle revolved around two fundamental issues: curbing the increasing powers of the Cassation Public Prosecution, which had taken on a pivotal role in the era of Syrian control,[2] and regulating the work of the judicial police to prevent its ongoing excesses of authority, which involved grave and repeated violations of people’s rights and freedom, including torture.

Before 2001, the judicial police only had the right to interrogate suspects in certain exceptional cases (felonies committed in flagrante) as this power was otherwise restricted to Public Prosecution judges. Moreover, the previous Article 47 prevented these judges from tasking the judicial police with conducting the interrogations,[3] and the law stipulated no clear guarantees for detainees’ defense rights. Jurists deemed the reason that legislators had not tasked the judicial police with interrogating suspects to be, specifically, the absence of the guarantees needed to protect their rights to defend themselves at this initial stage, especially a lawyer standing beside them.[4]

Despite the legal framework prevailing at the time, judicial practice was to task the judicial police with conducting the preliminary interrogations in many cases (including crimes not committed in flagrante) because prosecutors’ workloads had increased as society developed. Thus arose an unstable customary system without any checks or legal text and based largely on extracting confessions via coercion, violence, and even torture. Rights defenders objected to these grave excesses and encroachments on civil rights, the most prominent being the Lebanese Association for Human Rights. This organization was founded by the late Laure and Joseph Moghaizel, the namesake of the street in Badaro, Beirut, where the Legal Agenda’s premises were located.

In this context, the 2001 law established the new Article 47 guarantees as compensation for legislating the judicial police’s powers to investigate crimes. The goal, according to its rationale section, was to “reconcile between the individual rights enshrined in the Lebanese Constitution and society’s rights to security, stability, and tranquillity”. Hence, by the will of the legislator, the judicial police’s right to interrogate suspects became contingent on its compliance with Article 47 to guarantee the minimum level of defense rights.

The Constitutional Council explicitly underscored this link in Decision no. 4/2001 when it dismissed a challenge to the new law, filed by a group of MPs, with respect to the articles extending custody from 24 to 48 hours. To justify its decision, the Constitutional Council argued that the extension does not violate fundamental rights as it “does not negate the guarantees that the legislator established to protect suspects’ rights and preserve the presumption of innocence, which accompanies them until the final stages of the trial”.[5] It added, “Any deviation or transgression on the law in the treatment of suspects, whatever the period of preventive detention may be, is an offense punishable by law”. In fact, the legislature explicitly stipulated that violating custody procedure, including the rules and guarantees imposed by Article 47, constitutes the crime of deprivation of liberty stipulated in Article 367 of the Penal Code, which punishes “any official who detains or imprisons a person outside of the cases stipulated by law” with hard labor for a limited term.

Thus the institution of Article 47 arose from legislators’ desire to protect our civil rights, with the Constitutional Council underscoring that any violation of these rights is a crime punishable by law because “nobody has immunity when they break the law while performing their work, especially when that work involves interrogating a suspect”. But did the custody authorities – from the Public Prosecution offices to the security agencies – comply?

Article 47 in the Uprising’s First Two Days: Ink on Paper

Abdallah switched off the television in his room, which was broadcasting the protests live from the squares in central Beirut. The sight of security personnel dragging one protester across the ground of Riad Al Solh Square evoked a sense of anger and rejection inside him. The picture that Laure sent via WhatsApp only enraged him further. That image of dozens of youths laid face-down beside each other on a side street in central Beirut, their hands shackled behind their backs and a military boot beside their heads, was enough to guide him toward what he had to do. He contacted the Legal Agenda to ask about the hotline that served the LCDP in 2015 and was surprised to learn that calls had already begun arriving. In fact, from 18 October 2019, calls flooded in from detainees’ families and protesters after they witnessed the arrest of over 129 protesters during the first two days of the uprising. The calls were mostly similar, addressing a plethora of legal violations: violent, excessive beatings by the riot police and the Army, random and arbitrary arrests, and nondisclosure of the detained protesters’ whereabouts to their family members, who spent two days traveling between police stations in search of their detained and wounded children, as in the case of Tariq Awwad.

Abdallah and Laure decided to enlist once again to defend detained protesters and wage the Article 47 battle. Just as in 2015,[6] the lawyers’ movement during the uprising was distinguished by coordinated collective action to keep abreast of the rebelling people’s legal needs. These lawyers collaborated with the bar associations in Beirut and Tripoli, the Union for the Protection of Juveniles in Lebanon (UPEL), a number of rights organizations, and the groups participating in the uprising, thereby forming a broad movement to safeguard detainees’ rights and a model for harnessing voluntary professional labor to defend the people.

On 18 October 2019, Abdallah and Laure agreed to rendezvous in the Downtown Beirut Police Station to meet with the detainees, as stipulated in Article 47. Abdallah headed to the station in his car, but protesters had blocked most of the capital’s roads to reclaim some public space from the government. He recalled that his neighbor, Nezha, had acquired a motorcycle a few weeks earlier, so he called her and was surprised to find that she promptly allowed him to borrow it. “These people are defending all of us,” she explained, “so the least I can do is help you defend them”. Abdallah mounted the motorcycle and, bypassing the burning rubbish bins that youths had used to block the roads as the smell of the blazes mingled with the autumn breeze, went to rendezvous with Laure. Then, over several hours, the pair traveled between the capital’s police stations only to be rejected at each one. The Internal Security Forces (ISF) refused to allow the lawyers to meet with the detainees and refused to provide any information about them or – contrary to the prevalent practice in 2015 – even a list of their names.

Abdallah and Laure had almost lost hope when the former received a call from his uncle. Thaer,*, Abdallah’s cousin, had been arrested with the protesters and information indicated that he was taken to Emile Helou Police Station. Abdallah recalled that Thaer had signed a document granting him power of attorney (a POA) following the latter’s arrest during the 2015 protests. Although Abdallah knew that Article 47 explicitly states that a POA is not required for a detainee to meet with a lawyer, he thought that it might manage to break through the ISF’s blockade. He rushed to his office on the motorcycle, searching for side streets that were still open. He took a copy of the POA and then hurried back to the station, where Laure awaited.

Abdallah and Laure passed through the throng of protesters trying to prevent Tariq Awwad from self-immolation and entered the station to wage the Article 47 battle, POA in hand. Inside, they met with the officer in charge and asked to see Thair, but they were surprised to find that the official refused: “The detainee has no right to meet a lawyer. He only has the right to note the lawyer’s name on the record”. Hence, according to the judicial police, its obligations under Article 47 are only to inform detainees that they have rights, not to actually allow them to exercise those rights – as though the law and Article 47 are inapplicable theories.

Abdallah looked up to the wall beside the officer’s desk. There, a large wooden signboard hung bearing the words “Article 47 of the Code of Criminal Procedure: ‘The suspect or person subject of complaint shall, immediately upon being taken into custody for investigation purposes, enjoy the following rights:… to meet a lawyer that he nominates via a declaration noted on the record without the need for a duly drafted power of attorney’”. Abdallah pointed to the board and told the officer, “Read the law! The law allows the detainee to meet with a lawyer!”, to no avail. Laure repeated this keyword – “Meet!” – several times in vain. According to the ISF, the right to meet a lawyer to obtain legal counsel was mere ink on paper, just like many of the fundamental rights that the government had neutralized and society had risen to demand. Abdallah and Laure contacted the cassation public prosecutor after hearing that he had taken over the investigations into the detainees from the protests since the uprising began. He promised that the detainees would be released soon but did not address the violation of Article 47.

Neutralizing Article 47: Police Stations as Centers of Influence Not Fair Investigation

Thus it became clear at the beginning of the uprising that the Public Prosecution offices and judicial police continue to turn against the laws and neutralize the legal texts and guarantees that protect people against the government and its abuse. As with most prohibitions, closing the police stations on protesters and off to lawyers means, in practice, limiting access to influential people and their attorneys, who can contact and convince the public prosecutor or officer in charge of the facility to allow them to meet the detainees. Detainees’ rights were thereby contingent on their social, economic, and political position rather than acquired rights enjoyed by all people equally and without discrimination.

Even though Article 47 clearly states that detainees should be able to exercise their rights “immediately upon being taken into custody”, detention authorities have long interpreted the text counterintuitively. The Army, General Security, and State Security have almost entirely ignored Article 47, while the ISF have often postponed its application until the interrogations are over based on their assessment of the gravity of the suspected crime. They have stuck to these illegal practices despite the objections raised by rights-defenders and criminal justice actors, especially during the discussions with ISF officials in which the Legal Agenda participated, the last of which occurred less than a month before the uprising broke out.

In turn, the Public Prosecution offices have taken no action to force a policy of applying Article 47 in custody facilities. Rather, they have kept these rights contingent on their own case-by-case discretion, flouting the principle of equality in the exercise of the right of defense. Moreover, when the LCDP waged the Article 47 battle during the movement protesting the garbage crisis in 2015, Judge Saqr Saqr, the military public prosecutor at the time, did not hesitate to justify his refusal to apply Article 47 by citing security imperatives and telling the defense lawyer that detention guarantees only apply after the preliminary investigations are over not “immediately upon being taken into custody”, as the law stipulates.

In parallel, the criminal courts have usually refused to impose any legal consequences for the judicial police’s violation of detention guarantees because, in particular, of the difficulty of proving such violations. Rarely have the courts agreed to annul preliminary investigation records in cases wherein the judicial police did not comply with Article 47. Hence, despite the legal change in 2001, the judicial-security system continued to encroach on our civil rights during preliminary investigations free of any accountability.

Part 2: The Uprising Flips the Article 47 Equation for Regular Judicial Police

The Bar Association Joins the Article 47 Battle

The situation changed when Melhem Khalaf was elected president of the Beirut Bar Association. Khalaf, one of the lawyers who volunteered to defend the protesters in 2015, officially brought the Bar Association into the Article 47 battle. On 19 November 2019, one month after the uprising erupted, the judicial police once again refused to allow lawyers into Emile Helou Police Station to meet with 12 protesters arrested at a sit-in in central Beirut. Late at night, Khalaf came to the station and, accompanied by the lawyers, entered to meet with the detainees. When he emerged before the lawyers and protesters in front of the station, he announced by megaphone that, “No place shall be closed off to a lawyer!”.

Of course, entering police stations is a right not just connected to the law profession; rather, lawyers derive it from the natural rights of any person who loses his or her personal liberty and is secluded from society by the government, which has a monopoly over the use of force for the sake of protecting society. Opening the police stations’ doors to lawyers opens a portal for detainees that, although perhaps small, is extremely important as it allows their dignity to be protected and their rights defended against government abuse. Moreover, it allows oversight over these closed-off places by the society that the government is claiming to protect.

Less than a week later, on 25 October 2019, a lawyer was, like other protesters, arbitrarily deprived of liberty. David Akra was arrested by the Army while participating in a protest in Zouk[7] and was not allowed to exercise the defense rights guaranteed by Article 47 and the Law Profession Law. Subsequently, Khalaf issued a statement condemning the violation of Article 47: Akra was “arrested, taken away, and kept shackled for four hours during which he was not allowed to make any phone call, not to the Bar Association nor his family nor his colleagues… His mobile phone was also seized and the personal data involuntarily extracted, and his statement was taken immediately without him being brought before the public prosecutor, as required by procedure and the Cassation Public Prosecution’s instructions”.[8] The statement considered these acts legal violations of the personal liberty protected under Article 8 of the Constitution, Article 47, and the e-Transactions and Personal Data Law. The statement did not specify which authority committed these violations. However, Akra was taken to the Military Intelligence branch in Raymond Hayek Base, Sabra, and we shall return to this matter in Part 3 of this article.

And a Circular is Extracted from the Cassation Public Prosecution

On 3 December 2019, following the Beirut Bar Association’s demands,[9] Cassation Public Prosecutor Ghassan Oueidat‎ issued a circular aimed at strengthening detainees’ rights. Despite some flaws, this circular became an important legal weapon extracted by the uprising for the benefit of not only the protesters but everyone residing in Lebanon as the Cassation Public Prosecution supervises both the regular and military judicial police. The circular called attention to the guarantees of suspects’ rights stipulated by Article 47, noting in particular that a suspect “cannot be coerced into speaking under penalty of his statement being invalid, cannot be deprived of liberty except via a decision from the Public Prosecution, and must be informed of his rights immediately upon being taken into custody”.[10] The circular contained several clauses directed at the judicial police, the most important being the first two.

The first clause required that “lawyers be enabled to conduct their mission and promptly perform their inquiries upon producing their Bar Association membership card”. Thus, detainees and lawyers now had a decision reminding the judicial police that the law exists and implementing it is compulsory, which would ease negotiations with police stations regardless of the balance of power governing access to the stations to meet detainees. The circular also clarified that the goal of such meetings is to provide legal counsel as the introduction reminded that a suspect must be informed “immediately upon being taken into custody of the ability to meet a lawyer and, subsequently, to share information with his attorney about the crime imputed to him”. Note that the circular preserved some ambiguity over the timing of this meeting and the need for it to occur immediately upon detention as it used the phrases “promptly” and “inquiries” [muraja’at] instead of “immediately upon detention” and “meetings” [muqabalat].

However, the most dangerous part of this clause is its establishment of the rule that lawyers cannot attend preliminary interrogations by the judicial police. The circular requested that lawyers be enabled to perform their inquiries in the police stations “without that entailing them being allowed to attend preliminary interrogations, which occur in isolation from them”. By excluding lawyers from preliminary interrogations, the circular contradicted not only the Bar Association’s demands but also the law and constitutional principles in a manner that undermined detainees’ defense guarantees. The law does not explicitly prohibit lawyers’ attendance; rather, a number of jurisprudential opinions, including ours, interpret the law in a manner that allows it by linking Article 40 and Article 32 of the Code of Criminal Procedure.[11] This reading is based on the principle that legal texts restricting constitutional rights (in this case defense rights, personal liberty, and the presumption of innocence) should be interpreted narrowly in order to provide the broadest safeguards for them. This issue has long been a topic of heated debates with the ISF, which have insisted on the ban, particularly in their discussions with the Bar Association and the Legal Agenda. Thus, the cassation public prosecutor’s circular settled the debate in a manner contrary to the law and adverse to suspects’ interests and justice.

The circular’s second clause required that “personal information and data not be dumped from suspects’ phones except after an order from the competent Public Prosecution office”. Given the enormous amount of data stored on our phones, such protection is a fundamental safeguard of the constitutional right to privacy and a private life. The clause did not cite any legal text, but it has a basis in the E-Transactions and Personal Data Law (Law no. 81/2018), issued 10 October 2018, which effectively turned the power to search phones during preliminary investigations from one exercised by the investigating judge in cases of extreme necessity[12] to one exercised by the Public Prosecution without any controls.[13] The law thereby enshrined preexisting illegal practices instead of curbing them and rolled back legislative protection for the constitutional right to individual privacy, in contravention of the constitutional principle that constitutional guarantees may not be reduced.

In 2016, the Cassation Public Prosecution had refused, with no explanation, the Legal Agenda’s request that it establish controls for searching phones lest the judicial police exceed its authority.[14] Hence, the uprising extracted this fundamental safeguard of private life and suspects’ rights in criminal investigations. However, the circular’s phrasing merely prohibited “dumping information and data” from phones, not “viewing” or “searching” phones even though such searches are one of the main violations that suspects experience during investigations. Judicial police have habitually viewed the contents of suspects’ phones without informing the Public Prosecution or noting the measure on the record and then used the information found to extract confessions, in contravention of the law.

Activating the Right to Meet a Lawyer While in ISF Custody: A Weapon for Protesters

Despite its shortcomings, the Cassation Public Prosecution’s circular – as well as the Beirut Bar Association’s entry into the Article 47 battle – helped push the ISF toward enabling detained suspects to exercise their rights. While some Public Prosecution offices and police stations continue obstructing detainees’ rights to call their families and meet with a lawyer immediately upon being taken into custody, particularly by delaying their rights or requiring that the public prosecutor explicitly approve the meeting with a lawyer, the circular became an additional weapon in negotiations with the stations to enforce the law. For example, after one Public Prosecution judge in South Lebanon refused to allow an LCDP lawyer to meet with three youths detained in one of Sidon’s police stations on suspicion of vandalizing the facades of banks in February 2020, the judge withdrew her decision of her own volition based on the circular. In some cases, lawyers have had to consult the Bar Association to secure entry into custody facilities after ISF offices refused. For example, when, in May 2020, the Information Branch refused to allow lawyers to meet detainees Waddah Ghanwi and Mahmoud Mroueh, who had been arrested in connection with an explosive placed in a bank, the Bar Association in Beirut intervened to force the lawyers’ entry. This was the first time that detainees of the uprising were allowed to meet with a lawyer during preliminary investigations in the Information Branch.

Thus, Abdallah and Laure seized on this circular and worked to enforce it via their defense of detained protesters, convinced that doing so would help guarantee the rights of all detainees in Lebanon irrespective of the causes and circumstances of their arrest. Lawyers worked, in particular, on forcing compliance with Article 47 amidst the mass arrests of over 220 male and female protestors in Beirut between December 2019 and February 2020. Most were able to call their families during the first hours of their detention. However, the detainees from a protest against the banks in Hamra on 14 January 2020 were denied any phone call for more than 24 hours after the Cassation Public Prosecution decided to refer the investigations to the Information Branch, which caused anxiety and anger among their families and those protesting in solidarity with them, just as occurred during the arrests in the uprising’s first two days.

During these mass arrests, Abdallah and Laure responded quickly to ensure that Article 47 was properly applied. They entered Beirut’s police stations and managed to meet with the detainees in the jails or waiting rooms and provide legal counsel. Just how important it is for detainees to obtain such counsel immediately upon being taken into custody, pursuant to Article 47, became very apparent.

While meeting the detainees, Abdallah and Laure provided collective counsel and legal advice about their rights and the detention and investigation procedures. Most of this information is intuitive to legal folk but is not so for other people. For example, although Abdallah informed the detainees of their right to remain silent, most insisted on delivering their statements because they believed either that they had committed no crime or that their actions fell under the practice of political opposition and their legitimate right to defend themselves against a government that had plundered society’s wealth and caused an economic collapse. Laure insisted that the detainees read their statements and confirm their accuracy before signing them because once signed, they become official documents difficult to disprove. Upon finding marks of violence on many of the detainees, Abdallah and Laure emphasized that they have a right to request a medical examination to corroborate the violence and are not obliged to pay for this examination. Abdallah made sure that the judicial police allowed all the detainees to make a phone call and insisted that they be allowed to try again if the first attempt failed. The right to a phone call implies that the call is actually conducted and the detainee manages to contact an acquaintance outside the custody facility. It cannot be limited to attempting a phone call, as the security agencies have usually done, as such a practice renders it meaningless. Abdallah also informed the detainees of the legal bases that could be used to prosecute them and the nature of the crimes and evidence that the interrogations might address. Likewise, Laure informed them that searching their phones requires a judicial decision and advised them to check that such a decision exists because the search would otherwise be quashed by the courts. The lawyers also told the detainees that the investigations are supervised by Public Prosecution judges, so the judicial police do not decide whether to keep them in custody or release them. This is something that many people do not realize because the judicial police communicate verbally with the Public Prosecution judges by phone.

These experiences demonstrated the importance of legal consultations before the suspects’ interrogation begins rather than after their statements are taken. Interviews that the Legal Agenda conducted with released detainees confirmed that legal counsel before the interrogations began had a positive effect and was an important legal weapon for defending themselves and exercising Article 47 rights. For example, many detainees who received such counsel said that they delivered their statements confidently because they knew their rights, the charges they could face, and the course that the investigation procedures would follow. Some detained noncitizens (mostly children of Lebanese women) also said that they were not influenced by the investigators’ claim that the law prohibits them from protesting in Lebanon because the lawyers had informed them that they have the same right to protest as Lebanese citizens. The detainees also said that they were relieved by the sight of the lawyers as it indicated that people knew about their arrest and whereabouts and that their detention was an official procedure, not one occurring outside the judiciary’s oversight.

The effect of obtaining legal counsel before interrogation was particularly evident when the judicial police postponed the exercise of this right by over 43 people arrested in the “Saturday of Rage” protest around Parliament on 18 January 2020. On that night, Abdallah and Laure waited several hours before they were allowed to meet with the detainees even though they arrived at the station before the detainees were transported there. Signs of exhaustion began appearing on the lawyers’ faces. During the “Week of Rage”, the number of detainees and wounded had risen because of the security forces’ excessive use of force and mass arrests of over 167 protesters. Hence, Abdallah and Laure had spent all week roaming Beirut’s police stations to meet detainees and communicating with the cassation public prosecutor and judicial police to track their detention. Besides ensuring the proper application of Article 47 and pursuing release procedures, their role also included communicating with the media, the detainees’ family and friends, and the people protesting in solidarity with the detainees to reassure them and inform them of new developments. The uprising was distinguished by the broad networks of solidarity with detainees that formed under the slogan “The Revolution Does Not Abandon Its Prisoners” – so much so that on 15 January 2020, 61 protesters were arrested in front of Emile Helou Police Station while demanding the release of 60 people arrested the previous night, and the security forces struck Abdallah hard on the head while he waited to enter and meet with these detainees.

On the aforementioned “Saturday of Rage”, which witnessed severe violence against the protesters, Abdallah and Laure roamed the capital’s hospitals, which admitted over 80 wounded whom the security forces had attacked in the squares in central Beirut. The lawyers were surprised to find that several hospitals, particularly those that also admitted wounded security forces personnel, now resembled military bases. They made sure that no wounded protesters were arrested or placed under investigation and that they received the necessary healthcare. After a phone call informing the lawyers that a number of protesters had been arrested in the center of the city, they headed to Emile Helou Police Station to meet with them. Upon arrival, they were asked to wait because the detainees had not yet been transported from the protests. Abdallah and Laure capitalized on this break to eat a pastry and recover their strength, but in the holding cell, multiple surprises awaited them.

Upon entry, Abdallah and Laure were confronted by the sight of dozens of red faces and despondent eyes peering at them. They felt like they were once again in the emergency ward in one of Beirut’s hospitals. The wounds and bruises were clearly visible across the detainees’ faces and bodies, confirming the security forces’ excessive and disproportionate use of force against the protesters. After recovering from this bloody sight, they were surprised to find that the judicial police had finished taking the detainees’ statements before they could meet with the lawyers and obtain legal advice. Some detainees had waived their right to a medical examination even though their bodies displayed marks of violence as investigators had told them that the examination would be at their expense and delay their release. Thus, the judicial police tied the right to a medical examination to the detainees’ financial capabilities in order to dissuade them from exercising it, thereby breaching the principle of equality before the law. Obstructing detainees from undergoing medical examination limits their ability to document and prove the violence they endured and to defend themselves later during trial. Public Prosecution offices (particularly the Military Public Prosecution and the Cassation Public Prosecution) maintain a policy of leveling the charge of “violence against security personnel” against people subjected to violence by such personnel in order to preempt any accusation against them and protect them from any accountability.

While most of the protesters detained by the ISF were able to exercise their Article 47 rights, those arrested by the Army were not. Since the Army assumed policing duties during the protests outside Beirut, the practical result was that protesters in Beirut enjoyed greater protection than those outside the capital.

Part 3: The Uprising Flips the Equation for the Military Judicial Police

The Military Police Begin Applying Article 47

The uprising also extracted defense rights for people detained by the military police, i.e. the judicial police that, supervised by the Military Public Prosecution and the Cassation Public Prosecution, investigate crimes that fall under the military judiciary’s jurisdiction (such as violence against security personnel). In late November 2019, military police facilities began allowing suspects to call their families upon arrival even though in the past they had usually prohibited such calls or delayed them until after the detainees’ statements had been taken. However, the military police mostly continued to obstruct lawyers’ access to the detainees.

The application of Article 47 by the military police is even more important than by the authorities discussed earlier because a detainee’s exercise of the rights stipulated in this article indicates that the detention is now subject to judicial oversight and protection after the interrogations by Military Intelligence. The military police were not the first point of authority for detention and investigation of protesters during the uprising; rather, it received most of its detainees from Military Intelligence. When consulted by lawyers, no public prosecutors hesitated to acknowledge that Military Intelligence branches are outside their judicial oversight and that these facilities abuse detainees when interrogating them. Public prosecutors also admitted to lawyers that roles are divided between Military Intelligence and the military police: the former extracts confessions from the suspects, often via intimidation, force, and even torture in some instances, before the latter receives them to draft an official record, which is usually overseen by the Military Public Prosecution.

All judicial authorities acknowledge these legal transgressions by Military Intelligence, yet they take no measure to stop them or hold the perpetrators accountable, thereby allowing them to continue. Making matters worse, the arrest and investigation powers of the military establishment, particularly the Directorate of Intelligence, have expanded to encompass cases that fall outside the military judiciary’s jurisdiction. Thus, these practices have given rise to a judicial-military system wherein, instead of the judiciary ruling the security forces, the security forces rule the judiciary, with the military agencies enjoying broad leeway to encroach on civil rights in collusion with the judiciary.

Military Intelligence: A Judicial Police Bound by Article 47 or an Agency Beyond Judicial Oversight?

More than two months after the uprising erupted, Muhammad’s* mother stood at the entrance to Bahjat Ghanem Base in Kobbeh, Tripoli, imploring the guards for an answer to the same question that caused Tariq Awwad to attempt self-immolation early in the uprising: “Where is my son Muhammad? Military Intelligence took him a week ago and I haven’t heard anything about him!” Unlike Jamil Awwad, who was an adult and disappeared for one day, Muhammad was a minor and had disappeared for a week. Neither his parents nor the UPEL delegate had heard any news about him. Muhammad was one of dozens of youths arrested by the Army following protests in Tripoli on 26 November 2019 against the National Patriotic Movement’s office, bank offices, and military personnel in Jumayzat Street and Nour Square. Information suggested that they were held at Military Intelligence’s North Lebanon branch, but Muhammad and all those with him had been unable to contact anyone since their arrest, and lawyers had been denied access to them. Similarly, the UPEL delegate had not been allowed to meet with Muhammad and the other minors, attend their interrogations, or even ask about their status, in blatant contradiction of the Juveniles Protection Law (Law no. 422/2000).

The Legal Agenda’s documentation, conducted in partnership with the LCDP, revealed that Military Intelligence branches interrogated over 36% of the people observed to be detained after participating in the uprising between 17 October 2019 and 15 March 2020. Most were arrested during protests, in public places, or after being summoned by telephone for questioning and then detained in regional Military Intelligence branches, particularly in Tripoli, Akkar, al-Matn, Kesrouane, Sidon, and Zahle. There, they underwent extensive “unofficial” interrogations covering not only acts related to the confrontations between protesters and Army personnel but also acts that fall outside the military judiciary’s jurisdiction. Moreover, it became evident that, in blatant violation of Article 47, some of these people were not detained in accordance with a Public Prosecution decision. Their detention and investigation only became official and subject to judicial supervision once they were transported to the military police or the Directorate of Intelligence.

Just as they treated lawyer David Akra, the Military Intelligence branches and central directorate violated detention guarantees in all cases that we were able to document, refraining from applying Article 47. Some personnel even told detainees that they would “disappear” and that nobody would learn their whereabouts, which is psychological violence and coercion. According to detainees’ statements, not only did the personnel violate detention procedure and use means of intimidation and psychological coercion, but some of these investigations involved force and violence from the moment of arrest to the moment they ended. Some detainees in the branches in Sidon and Tripoli and in the Directorate of Intelligence at the Ministry of Justice also reported that intelligence personnel used a taser to extract information during interrogations.

Under Article 4 of the Army Law (no. 3771/1981), the role of the Directorate of Intelligence is mainly limited to investigating threats to the Army’s security, gathering strategic information about military operations and the security of military personnel and facilities, and strategically investigating the enemy and its objectives, organization, and military capacity. The law also specifies that the directorate “interrogates prisoners of war and carries out the necessary investigations”. Hence, it does not have the power to interrogate civilians (except prisoners of war) or investigate military crimes. Under Article 20 of the Military Judiciary Law, this power belongs to military judicial police, i.e. primarily military police personnel.

However, Article 19 of the Military Judiciary Law allows the minister of defense to assign officers from outside the military police to perform military judicial police functions, and personnel from the Investigation Department in the Directorate of Intelligence have conventionally been assigned to such tasks. Judicial authorities have also tasked the directorate with conducting investigations into some crimes that do not fall under the military judiciary’s jurisdiction, such as those related to banks and money-exchanging during the recent period. The judicial-military system has worked to expand the directorate’s powers to investigate crimes involving civilians without compelling it to comply with detention and investigation guarantees, particularly Article 47. As mentioned earlier, the legislators and the Constitutional Council emphasized that the security agencies’ power to interrogate suspects is contingent on their respect for minimum guarantees of defense rights.

The First Use of the Enforced Disappearance Law: “Do You Have the Body?”

On 29 November 2019, the Military Intelligence branch in Tripoli handed 46 youths over to the military police, which then handed them, bearing marks of violence, over to Kobbeh’s ISF station several days after their arrest. However, Muhammad, the aforementioned minor, was not among them. The LCDP then received a flood of calls from the other youths’ families, who had no information about them or where they had been held since the Army arrested them. The LCDP learned that at least ten protesters, including two minors, had been missing for several days and had likely been tortured. As Laure wondered about the legal means available to discover where the missing youths were detained, the answer appeared on the screen of her phone: the date was 30 November 2019, the anniversary of the adoption of the Missing and Forcibly Disappeared Persons Law (Law no. 105/2018).

Two years before the uprising, the human rights community in Lebanon managed to extract two extremely important laws from the political class that has maintained its positions in power since Lebanon’s civil war ended: the Anti-Torture Law (Law no. 65/2017) in 2017, and the aforementioned Missing and Forcibly Disappeared Persons Law in 2018. These laws made torture and forced disappearance serious felonies that warrant strict prosecution and prevention. The former followed years of struggle for stricter punishment of violence and torture perpetrated by government agencies without any real accountability. The latter followed families’ decades-long struggle to compel the state to uncover the fate of their loved ones who went missing in the 1980s during the war and to enshrine their right to know. However, this law also aimed to deter forced disappearance in future.[15]

Under the 2018 law’s definition, a person forcibly disappeared is anyone “missing due to arrest, detention, abduction, or any form of deprivation of liberty by state employees, groups, or individuals followed by refusal to acknowledge his deprivation of liberty or concealment of his fate or whereabouts, which deprives him of the law’s protection”.[16] Hence, when security agencies detain people without acknowledging the detention, disclosing where they are held, or allowing them to contact an acquaintance, these agencies have committed the felony of forced disappearance. The law also recognizes the right of family members and people close to the missing person to know – a “natural” right that the State Council had already derived in a decision it issued in 2014.[17] This right includes knowledge of where the missing people are located or held, as arises when detainees are allowed to call their families. Hence, the adoption of this law implicitly extended the purpose of Article 47 beyond ensuring defense rights to also encompass protection from forced disappearance as Article 37 rendered its nonapplication a felony punishable with up to 15 years of hard labor. Article 38 also made preventing information about missing persons from reaching their families a misdemeanor punishable with up to two years of imprisonment.

Building on this long rights struggle, the LCDP decided to activate the missing persons and anti-torture laws to protect detained protesters and confirm these texts as human rights gains. Hence, in November 2019, when Military Intelligence arrested Khaldoun Jaber, Samer Mazeh, and Ali Bassal and denied them their Article 47 rights, barred them from making a phone call or meeting a lawyer, and refused to disclose where they were held, Abdallah filed two reports of forced disappearance to the Cassation Public Prosecution. Consequently, the three detainees were released just hours after the report was filed on the day after their arrest.

Recourse to the Cassation Public Prosecution was possible because it supervises both the regular and military judicial police and because Article 47 prohibits the security agencies from detaining anyone without a Public Prosecution decision. The move was also based on habeas corpus, a general legal principle that arose in Britain in the twelfth century and obligates custodial authorities to bring any detainee before the judiciary to ascertain the legality of the detention. Literally, the Latin term states “you shall have the body (in court)” in reference to the importance of protecting personal liberty, bodily integrity, and the right to appear before the judiciary as a universal natural and civil right.

On 2 December 2019, Laure decided to approach the Cassation Public Prosecution once again to demand the “bodies” of Muhammad and his companions. She filed a report about the disappearance of the youths in Tripoli and asked the prosecution office to disclose their whereabouts and compel whoever was detaining them to apply Article 47. She also requested that a forensic doctor be tasked with examining them because of serious suspicions that they had been tortured. Cassation Public Prosecutor Ghassan Oueidat‎ dismissed the report, stating that, “The people suspected to have been forcibly disappeared are detained by the judicial authorities in North Lebanon”. However, Laure had consulted the Appellate Public Prosecution in North Lebanon, and it had denied giving any order to detain the missing youths.

Determined to answer the question, “Where is the body?”, Laure demanded that Oueidat search for Muhammad and his companions, especially because two were minors whose guardians had heard nothing about them for a week. She declared that she would not leave the Public Prosecution offices without knowing where the missing youths were held and before they were allowed to call their families in accordance with Article 47 and the Missing and Forcibly Disappeared Persons Law. Facing her insistence, Oueidat disclosed that the youths had been taken from the Military Intelligence branch in Tripoli to the Directorate of Intelligence in the Ministry of Defense and that he had ordered the directorate to permit them the phone call. Indeed, minutes later Laure began receiving voice messages from the youth’s’ families confirming that, for the first time in a week, they had heard their children speak. At that point, Laure renamed the WhatsApp group via which she was communicating with the families from “Families of Missing Detainees” to “Families of Detainees in the Ministry of Defense”.

Thus, the LCDP managed to force a partial application of Article 47 for Military Intelligence detainees. However, the Cassation Public Prosecution took no measure to investigate the violations that Military Intelligence personnel committed or to ascertain the extent to which the detainees were tortured, breaching the duty to investigate crimes of torture. The violations that these youths endured are not an exception but ongoing practices by Military Intelligence, as mentioned earlier. From November 2019 to April 2020, the LCDP had to file seven reports of forced disappearance concerning over 28 protesters who were arrested by Military Intelligence and not permitted to exercise their Article 47 rights. Yet the Cassation Public Prosecution refused to investigate these crimes or effect any accountability, content to merely tell the lawyers verbally where the disappeared subjects of the reports were held. However, the LCDP was not satisfied with this passivity when, in April 2020, it filed a report concerning dozens of people arrested by Military Intelligence while protesting the deteriorating economy.

Activating the Right to Meet a Lawyer in the Directorate of Intelligence: What About the Branches?

In late April 2020, calls once again flooded into the LCDP: dozens of youths had been arrested in connection with protests in Tripoli, al-Matn, Zahle, and Sidon, and nobody knew anything about what had happened to them. When the Military Intelligence branch in Tripoli released some of them, they bore marks of severe violence. Minors were not spared from the beatings and spoke of their heads being struck against the wall and threats of electrocution.

On 30 April, Abdallah once again filed reports of forced disappearance to the Cassation Public Prosecution, which disclosed that most of the detainees had been moved from Military Intelligence branches to the Directorate of Intelligence in the Ministry of Defense. Because the directorate is located inside the Minister of Defense campus and there is no official mechanism allowing lawyers to conduct their inquiries and meet with the detainees there, Abdallah sought the Beirut Bar Association’s assistance to secure entry. After the cassation public prosecutor and military public prosecutor approved, the LCDP’s lawyers managed to meet with 15 detainees inside the directorate pursuant to Article 47, thereby establishing a legal precedent.

When George* saw Abdallah in the directorate’s prison, he shouted, “Don’t hit me!”, and raised his hand to protect his face. Then, when he learned that the person standing before him was a lawyer, he broke into tears. The same sight confronted Abdallah and Laure when they met many of the directorate’s detainees, particularly the minors, and the two lawyers were shocked by the marks of violence and bruises on many of them. The detainees said that, for several days, their conditions had been deplorable as they endured all kinds of abuse and extensive interrogations about their part in the protests and the people supposedly inciting them and funding their actions. They all repeated two questions: Did their families know where they were? And would the beatings stop now? In effect, the LCDP demanded that they all be permitted to contact their families in accordance with Article 47 and that a UPEL delegate attend the interrogations with the minors. The directorate responded and, for the first time, applied the Juveniles Protection Law. However, the Military Public Prosecution delayed the detainees’ medical examination for five days, arguing that a written request was required even though the government departments were closed. Later, it emerged that the directorate had prevented at least three detainees from meeting the lawyers, denying their presence in complete violation of Article 47. These detainees were also unable to contact their families. Hence, the directorate’s application of Article 47 is not automatic but contingent on how strongly lawyers and Public Prosecution offices demand it.

After establishing this precedent in the directorate, Abdallah and Laure attempted to meet other detainees in the regional Military Intelligence branches, but the doors remained closed to them. Abdallah went to the Bahjat Ghanem Base in Kobbeh, site of the Tripoli branch, and Laure went to the Elias Abou Sleiman Base in Ablah, site of the Zahle branch, demanding to meet the detainees. However, the officials refused to apply Article 47. On 2 May 2020, after receiving information that the branch in the Mohammad Zgheib Base in Sidon had used electric shocks on a group of detainees, Laure rushed there to demand to meet with them. Although the Military Public Prosecution had, at the behest of the Bar Association, issued a decision permitting her to meet the detainees, the officials refused to let her even enter the base in open revolt against judicial decisions and Article 47. But Laure refused to leave.

Laure stood for two hours at the base’s entrance. The guards gave her a chair to relax on, but she refused to sit or move before she was permitted entry. Abdallah called to check on her and asked her if she was tired, and she shouted through the phone, “Electric [shock], Abdallah – electric [shock]!”. When the negotiations resulted in her finally being allowed in, she was surprised to be directed to the military police’s offices, which are also located at the base. The detainees, she learned, had just been moved from the Military Intelligence branch to the police offices. At that point, Laure felt that her effort had not gone to waste. In this instance, insisting on the application of the right to meet a lawyer had directly put a stop to the violence and torture practiced against the detainees. Upon seeing Laure, expressions of relief appeared on their faces (some had to be admitted to hospital after their release), and, in a faint voice, they repeated the very words that she had spoken a short time ago: “Electric [shock], Laure – electric [shock]]!”.

Thus the uprising managed, thanks to the perseverance of the lawyers’ movement, to activate Article 47 on a board scale. However, the battles are still being fought to ensure its full application by all the security agencies, particularly Military Intelligence, General Security, and State Security, and – just as importantly – to effect accountability for the attack on our civil rights via the violation of detainees’ defense guarantees. The latest of these battles occurred in the halls of Parliament.

 

This article is an edited translation from Arabic.

 

*Some names were changed for anonymity.

 

Keywords: Lebanon, Uprising, Defense rights, Article 47, Internal Security Forces, Judicial police, Torture, Violence, Lawyer

 

[1] Article 47 of the Code of Criminal Procedure states:

“The suspect or person complained of shall, immediately upon being taken into custody for investigation purposes, enjoy the following rights:

1. To contact a family member, his employer, a lawyer he selects, or an acquaintance.
2. To meet a lawyer that he nominates via a declaration noted on the record without the need for a duly drafted power of attorney.
3. To be assisted by a sworn interpreter if he is not proficient in Arabic.
4. To submit a request directly, or via his attorney or a family member to the public prosecutor, for a doctor’s examination. The public prosecutor shall assign a doctor to him as soon as the request is submitted to him.

…

The judicial police shall inform the suspect, as soon as he is taken into custody, of the aforementioned rights and note this measure on the record.”

[2] Joelle Boutros, “al-Na’ib al-‘Amm al-Tamyiziyy, La’ib Siyasiyy am Ada Ukhra li-l-Quwa al-Siyasiyya? 2 – Qanun 2001 Qanun Kasr ‘Azm ‘ala Qiyas al-Niyaba al-‘Amma al-Tamyiziyya”, The Legal Agenda, 1 October 2019; and “Waraqa Bahthiyya ‘an Islah al-Qada’ fi Lubnan Raqm 17: Tanzim al-Niyaba al-‘Amma”, The Legal Agenda, 2018.

[3] Article 47 of the old 1948 Code of Criminal Procedure stipulated that, “The public prosecutor… may entrust one of the heads of police or gendarmerie stations with a portion of the work that falls under his competence if he deems necessary, except for interrogating a defendant.”

[4] Philomene Youakim Nasr, Usul al-Muhakamat al-Jiza’iyya: Dirasa Muqarina wa-Tahlil, 1889-1999”, Alhaditha Books, p. 280, 13 April 2013.

[5] Lebanese Constitutional Council Decision no. 4/2001, dated 29 September 2001, on the request to annul Law no. 359, dated 16 August 2001, on amending articles of the Code of Criminal Procedure. The decision is available on the Constitutional Council’s website.

[6] Lama Karamé and Elham Barjas, “Tajribat Muhami Harak Sayf 2015”, The Legal Agenda, 2016.

[7] “Tawqif ‘Adad min al-Ashkhas fi Mintaqatay al-Dhuq wa-Jall al-Dib”, statement issued by the Army Command – Directorate of Orientation on 25 November 2019, available on the Army’s website.

[8] Statement by the president of the Beirut Bar Association on 25 November 2019, available on its Facebook page.

[9] The Beirut Bar Association held several meetings with Cassation Public Prosecutor Ghassan Oueidat to discuss the rights of detained protesters and the extent to which Article 47 was being applied. “‘Uwaydat Yabhathu wa-l-Khatib wa-Gaspard Huquq al-Muhtajazin”, Mahkama, 21 November 2019, and “Ijtima’ bayna ‘Uwaydat wa-Niqabat al-Muhamin li-Bahth Hudur al-Tahqiqat al-Awaliyya!”, Mahkama, 26 November 2019.

[10] Circular no. 104/S/2019, dated 3 December 2019, published on the National News Agency’s website under “Ta’mim li-Oueidat Yata’allaqu bi-l-Madda 47 min Usul al-Muhakamat al-Jiza’iyya wa-Damanat Himayat al-Mushtabah fihim”.

[11] Article 32 of the Code of Criminal Procedure stipulates the right of a suspect of an in flagrante crime to have a lawyer to attend his interrogation when carried out by the public prosecutor. Article 40 stipulates that in the case of such a crime, the judicial police must perform the procedures that the public prosecutor performs if the latter is unable to do so.

[12] Protecting the Right to Communications Secrecy Law (Law no. 140/1999). In this regard, see auxiliary judge Rabih Maalouf’s dissenting opinion on the decision of the Beirut Misdemeanor Court of Appeal (Chamber 8) issued 14 November 2008 and published in Ghida Frangieh, “Isti’naf Beirut Tarfudu Mu’aqabat al-Mithliyya Kharija Halat al-Jurm al-Mashhud: wa-Mukhalafa bi-Mithabat Dars Baligh fi Usul al-Tahqiqat al-Jiza’iyya”, The Legal Agenda, 2 April 2019.

[13] Article 123 of the E-Transactions and Personal Data Law (Law no. 81/2018), issued 10 October 2018, stipulates:

“Subject to the provisions in this chapter, the provisions of the Code of Criminal Procedure pertaining to searches and the collection of evidence in in flagrante and other crimes, particularly Article 33 and Article 41, shall be applied to the collection of informational evidence or data on portable electronic media, such as CDs or computers.”

[14] Ghida Frangieh, “Mukhalafa li-l-Qadi Rabi’ Maalouf: Taftish al-Hawatif Yatattalabu Idhnan min Qadi al-Tahqiq”, The Legal Agenda, is. 59, 4 May 2019.

[15] “Iqrar Qanun al-Mafqudin wa-l-Makhfiyyin Qasran bi-Quwwat al-Harak al-‘Amm: Waqf al-I’tida’ ‘ala Dahaya al-Harb fi Lubnan”, The Legal Agenda – Lebanon, is. 59, 29 May 2019.

[16] Paragraph 2 of Article 1 of the Missing and Forcibly Disappeared Persons Law (Law no. 105/2018), issued 30 November 2018.

[17] Ghida Frangieh, “Lebanese High Court Consecrates the Right to the Truth: Natural Rights as a Foundation”, The Legal Agenda, 12 May 2014.