Ruling In the Name of the Lebanese people


2016-07-13    |   


The Criminal Magistrate in Matn,
Upon careful examination,
And following a review of the formal charge brought by the Appellate Public Prosecution in Mount Lebanon […] on April 16, 2016, against the following defendants:

1.      [Male defendant], Syrian,
 
Arrested preventatively on April 12, 2016, and adversarially on April 16, 2016, and who remains under arrest,

On the basis of Article 534 of the Criminal Code and Article 36 of the Law of Foreigners,

2.      [Three women, one from Benin and two from Cameroon, who were arrested in  the company of the male defendant, and who remain under arrest].

On the basis of Article 523 of the Criminal Code and Article 36 of the Law of Foreigners,

And as a result of the public trial,

And after all the documents were examined and openly read out,

Ascertained the following:

Firstly: the Facts
 
That on the basis of information obtained by the Anti-Human Trafficking and Morals Protection Bureau about some girls of African nationalities practicing prostitution in the Dora neighborhood, personnel of said Bureau went to said neighborhood, situated near the BLC Bank, where they witnessed four girls talking with pedestrians and car drivers. Upon clarification of their identities, it was determined that they were the three female defendants and [the male defendant], who was wearing women’s clothing. They were then taken to the Anti-Human Trafficking and Morals Protection Bureau for questioning.
When [the male defendant] was questioned, he stated that he had entered Lebanon three years ago and that his identity papers are in the General Directorate of General Security for renewal, as his residency permit had expired approximately five months ago. He stated that he wears women’s clothing because of his feminine disposition –which he has possessed since childhood– and that he was waiting in the street for a male friend. He denied setting out to engage in “sodomy”. He added that he used to have sex with men in Syria.

When [the first female defendant] was questioned, she stated that she has lived in the Nabaa neighborhood with a female Cameroonian friend since leaving the house where she had worked as a domestic servant. She stated that her documents remain in her employer’s house, which is situated in the Mazraat Yachouh neighborhood. She added that she was standing in the street waiting for a taxi to take her back to her friend’s house in Nabaa. Then, when asked again, she stated that she was on the street to “fish for” customers with whom to prostitute herself for monetary sums, because her Cameroonian friend, [the third female defendant], had asked her for money to pay the rent for the room in which she resides. She added that she charges customers US$20 for sex. She denied the existence of a person facilitating her practice of prostitution with the aforementioned defendant; rather, she uses prostitution to pay the rent for the room.

When [the second female defendant] was questioned, she stated that she works in domestic service, that her papers are with her employer, and that she had left the house where she had been working. She added that when she was arrested, she was standing in the street in the Dora neighborhood and was on her way to the disco. She stated that the male condoms seized from her are not hers, and denied working in prostitution.

When [the third female defendant] was questioned, she stated that she works in domestic service and that her sponsor, called [so-and-so], has her papers. She added that she was in the Dora neighborhood to collect the keys to the room in which she lives from [the first female defendant]. She denied working in prostitution or facilitating it, and stated that the US$150 that she had received from the latter defendant was rent money for the room in which the two reside;

Thatin the trial hearing held on May 3, 2016, [the male defendant] stated that he was arrested in the street in the Dora neighborhood opposite to his place of residence, that he was waiting for a female friend, and that he was wearing women’s clothing, and that he denied engaging in prostitution or “sodomy”, he asked for mercy;

The [first female defendant] stated that she had left the house where she had worked as a domestic servant and had moved in with [the third female defendant] in the Nabaa neighborhood. She stated that at the time of her arrest she was eating food with a female friendand that she was surprised that she was arrested by the patrol personnel while walking along the street. She denied engaging in prostitution, adding that she made her initial statement under pressure because if she did not confess to prostitution, she would be imprisoned for five years. She stated that the male condoms confiscated from her belonged to her female friend, and that she had put them in a bag that she was carrying. She asked for mercy;
The [second female defendant] stated that she left the house where she had worked as a domestic servant approximately seven months ago,and moved to the Bechamoun neighborhood to live by herself. She stated that she was heading for a night out in one of the nightclubs in Dora. She denied engaging in prostitution and added that the male condoms seized from her belonged to a female friend. She asked for mercy;
The [female defendant] denied engaging in prostitution, adding that the US$150 she received from [the other female defendant] was the latter’s share of the room’s rent. She asked for mercy;
The trial concluded;
[…]
 
Thirdly: the Law
Whereas firstly, no conclusive evidence or facts showing that [the three female defendants] practiced clandestine prostitution arose in the file, as neither their contact with supposed customers nor their negotiation with said customers over sex in exchange for monetary sums was proven. In this regard, the arrest of the defendants in the street, without a supporting statement by one of the persons to whom one of the defendants offered prostitution, in insufficient. Moreover, the seizure of male condoms, irrespective of their quantity, from one of the persons is not evidence of their engagement in prostitution. The use of male condoms is regarded as a measure for preventing sexually transmitted diseases, so their possession cannot constitute evidence for, or create a presumption of engagement in criminal activity;

Whereas it may be permissible for the judicial bodies responsible for prosecuting and indictingto rely on mere suspicions, a conviction by the trial courts must be based on absolute certainty established by decisive evidence. Hence, the Judicial Police and the power of prosecution represented by the Public Prosecution must gather evidence against the person charged with a specific crime. In the absence of such evidence, the trial courts may not rely on mere suspicion, for doubt is as a matter of course interpreted in favor of the defendant;
Whereas on the basis of the above reasoning, the court found the evidence that the female defendants committed the act with which they are charged –the misdemeanor stipulated in Article 523 of the Criminal Code– unconvincing. Subsequently, [the three female defendants] must be acquitted of said crime ascribed to them in the present public prosecution on account of insufficient evidence, if not doubt;
Whereas secondly, [the male defendant] was charged with committing the crime stipulated in Article 534 of the Criminal Code. Said article stipulates that “any sexual intercourse contrary to nature shall be punished by imprisonment for up to one year”;

Whereas it must, to begin with, be noted that in the file it was not proven that [the male defendant] had any sexual relation with any person (male or female); rather, his behavior was limited to wearing women’s clothing and standing by the road in the Dora neighborhood. Although, he did state during his initial questioning that he had engaged in “sodomy” in Syria;

Whereas supposing that the above were overlooked, then, firstly, the phrase “sexual intercourse contrary to nature” found in the aforementioned Article 534 has an indeterminate scope, intent, and meaning. This is because the meanings encompassed by the concept of “nature” can vary in accordance with the lens used to interpret it, especially when it relates to human relations which are constantly changing, are subject to the evolution of understandings, customs, beliefs, and are not necessarily connected to religious or social precepts. Hence, the judiciary has the power to interpret the legal text in Article 534 of the Criminal Code according to the general rules followed in the interpretation of legal texts. The interpretation must conform to the general principles enshrined in the Lebanese legal system –ranging from the Constitution to the international agreements, and to the provisions of ordinary law– in accordance with the principle of the hierarchy of rules enshrined in Article 2 of the Code of Civil Procedure;

Whereas the Lebanese Constitution stipulates in its Preamble (which the Lebanese Constitutional Council considered in a number of rulings, such as rulings No. 1/97, 2/97, and 4/2001, to be an integral part of the Constitution’s provisions that enjoys the same legal standing) that “Lebanon is also a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The Government shall embody these principles in all fields and areas without exception”;

Whereas the first article of the Universal Declaration of Human Rights, adopted via the UN General Assembly decision dated December 10, 1948, stipulates that all human beings are born free and equal in dignity and rights…, and its second article stipulates that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion…;

Whereas UN Human Rights Council Decision No. 17, issued on June 17, 2011, established a framework for confronting discriminatory practices and acts of violence against individuals based on their sexual orientation or gender identity, and for the means of using international human rights law to end violence and related human rights violations based on sexual orientation and gender identity. Note that said decision, although not legally binding for the United Nations’ member states, does indicate the approach adopted by the international organization, and hence its constituent states, to the topic of human rights in relation to sexual identity. This approach tends more towards openness to and acceptance of different sexual dispositions than towards rejecting, repressing, or criminalizing them;

Whereas to effectuate the above, Article 534 of the Criminal Code must be interpreted in conformity with the general rules and principles enshrined in the Lebanese Constitution and the Universal Declaration of Human Rights, by which the Lebanese state abides according to the Preamble of its Constitution. Said article must also be interpreted along the lines of the principles enshrined by the United Nations, which, according to the Preamble of the Lebanese Constitution, the state embodies in all fields and areas without exception;

Whereas based on the above and on the right granted to this court to interpret unclear legal texts such as Article 534 of the Criminal Code –which, like all criminal law texts, may not be interpreted expansively– the court holds that the expression “sexual intercourse contrary to nature” stipulated in said article does not encompass sexual relations between two persons of the same sex. Such an act falls within the scope of the inherent individual freedom that a person may practice in accordance with his dispositions without infringing upon the rights of others. Hence, it cannot be described as a contravention of nature. Note that on May 17, 1990, the World Health Organization, of which Lebanon is a member, issued the 10threvision of the International Statistical Classification of Diseases and Related Health Problems (ICD-10),[2]with which it deemed that “In none of its individual manifestations does homosexuality constitute a disorder or an illness, and therefore it requires no cure”. This reinforces this court’s conviction that sexual relations between two persons of the same sex do not fall within the scope of the crime of sexual intercourse, contrary to the nature stipulated in Article 534 of the Criminal Code;

Whereas pursuant to all of the above, the proceedings against [the male defendant] on the basis of Article 534 of the Criminal Code must be discontinued because the elements of the crime were not present;
Whereas thirdly, the defendants’ act of remaining in Lebanon after their residency permits expired and their failure, without an acceptable excuse, to duly apply for an extension of residency from the competent authority within the legal time limit constitutes the misdemeanor stipulated in Article 36 of the Law of Foreigners. Consequently, they must be convicted under said article;

Whereas given this outcome, all additional and contrary causes and claims must be dismissed, either because they lack merit or were implicitly refuted in the course of the above explanation;
 
Therefore,
It is ruled:

Firstly, to acquit [the three female defendants] of the acts ascribed to them in the present public prosecution on the basis of Article 523 of the Criminal Code, on account of insufficient evidence;

Secondly, to discontinue the proceedings brought against [the male defendant] in the present public prosecutionon the basis of Article 534 of the Criminal Code, because the elements of the crime were not present;

Thirdly, to convict all defendants […] of the misdemeanor stipulated in Article 36 of the Law of Foreigners, and to sentence each of them under said article to time served;

Fourthly, to dismiss all additional and contrary causes and claims;

Fifthly, to retain all legal expenses;
Adversarial ruling pertaining to all of the defendants, issued and made viewable to the public in Jdeideh, Matn, on May 5, 2016.

This document is a translation from Arabic.
 
 
__________
[1] Translator’s note: the preceding phrase could also be read as “for seven months”.
[2] Translator’s note: “International” is misspelled as “Periodic” in the Arabic text .
 

Share the article

Mapped through:

Articles, Independence of the Judiciary, Lebanon



For Your Comments

Your email address will not be published. Required fields are marked *