Text of the Judgement in Beirut Dismissing the Second Prosecution of Dr. Muhamad Mugraby for his Human Rights Testimony in the European Parliament, November 2003

TRANSLATION

Case No. 1260/2007

Judgment

In the Name of the Lebanese People

We, the Single Criminal Judge at Beirut,

Upon scrutiny,

And after taking notice of the charge by the Appellate Public Prosecution at Beirut, Case No. 9288/2006 dated May 18, 2007, against the Defendant:

- Muhamad Abdullah Mugraby, his mother’s name Fatima, born in the year 1938, Civil Record No. 3224 Al Mazraa,

Pursuant to the provisions of Article 383/209 Penal Code.

And upon the public trial,

And after reviewing all documents,

We find as follows:

Firstly: The Facts

On November 4, 2003, Defendant attended a meeting of the Mashrek Delegation which is a subcommittee of the Foreign Affairs Committee of the European Parliament with the purpose of exchanging views. The meeting was chaired by Mrs. Margie Sudre. It was attended by five members and a delegate of Amnesty International. During the meeting Defendant stated that he had formed a team of lawyers and non-lawyers with the purpose of restoring integrity to the judicial body. He added that oppressive regimes cannot survive unless it destroys opposition and controlled the media, thereby disseminating an environment of fear in which whoever wishes to disturb the rulers understands that he will be punished. He added that during the nineties some military officers were charged with issuing judgments against persons who distributed flyers critical of the regime or the Syrian presence and they were prosecuted in military courts, that all suspects were susceptible to torture, and that military courts were still in existence, and that military prosecutors sat in those courts. He further referred to the shutdown of MTV. The cause for the shutdown, he said, was that MTV was vocal in its opposition. He considered the MTV shutdown to be in violation of the law on the following counts: It took place without any prior notice and was not based on a judicial decision or a charge. He declared his belief that law can contribute to improvement of the conditions of Lebanon if honestly enforced, and his belief in the contents of the Lebanese Constitution, the Universal Declaration of Human Rights and the constitutional and legal duties to uphold the following:

• That all persons are equal under the law.
• The presumption of innocence.
• The right of defense including the defense of the defense.
• The right of appeal.
• Integrity and neutrality of the judges and their recusal in the event of conflict of interest.

Then he addressed the European Parliament members appealing for the protection of the basic rights of individuals and making this protection part of the foreign policy of the European Union, for the rejection of oppressive regimes and the leaders thereof, and for preventing the repetition of the violation of those rights.

In part answer to a question by the Italian MEP Emma Bonino Defendant stated that “men of the regime” found a fax he had sent to Amnesty International and the authorities used it against him. The regime could not go through with prosecuting him because the Lawyers Association at that time sided with him and refused to authorize his prosecution. But after he launched the Campaign for Judicial Integrity the Layers Association sided with the judiciary considering that this campaign was equal to contempt of the judiciary while the judges are ideal role models.

In part answer to a question of whether he was subjected in prison to any torture, physical or mental, the Defendant said that being in jail was by itself a punishment because the jail conditions are very bad. He described how he spent the days of his detention in the detention center at the Palace of Justice and in the Roumieh Prison. For those under preventive detention their relatives had to seek permits from the public prosecutor’s office to visit them. “I was told that one purchased ten permits for twenty dollars”, he said. He added that there was no confidentiality between the lawyer and his detained client and both communicate by shouting in the midst of a large number of detainees. He mentioned the conditions of foreign detainees and said that one of them was sentenced to one month but had so far served one year and one month.

In the final trial hearing on November 6, 2008, Defendant was questioned by the court and he stated that he was invited by the European Parliament to testify on the conditions of human rights in Lebanon. He gave his testimony according to the actual conditions which he considered bad and he still considers those conditions still bad. He said that he always works for the respect of constitutional institutions to enable those institutions to exercise their respective constitutional roles with integrity, independence and effectiveness. He had no intention to show contempt to any of those institutions but only to criticize them on this basis. He protested that the prosecution did not attribute to him any specific act of offense in making the charge under Article 383 and moved for the nullification of his prosecution.

Second: The Evidence

The above facts have been supported by the charge made by the prosecution, by the preliminary investigations and by the totality of the papers and the incidents of the process.

Third: The Law

It is incumbent to satisfy the criminal elements of the Article 383 Penal Code crime that the Defendant shows contempt to a public official through gestures, words or threats while exercising his duties or in the process thereof.

It is evident from the statement by the Defendant before the Mashrek Committee of the Foreign Affairs Committee of the European Parliament that, in fact, it consists of criticism of certain legal matters in the sphere of application and in relation to human rights. All these matters are subject to constant discussion among jurists, and some time in a manner organized by official organs of the state. For example the issue of the organization of prisons is continuously discussed by jurists and human rights activists. So is the prevention of torture during investigations. So is the issue of press freedom, and the general principles applicable to the functioning of the judiciary. Defendant dealt with all those issues objectively and exposed those principles, which are in fact the most salient criteria of fair trials as provided in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. His expose, in the context of his presentation, is void of any contempt and is characterized with being both scientific and practical, particularly in a committee of the Committee of Foreign Affairs of the European Parliament, and especially that the object of discussing those matters was “the exchange of views” in this regard, as reported by the secretary of the Lebanese Embassy to Brussels from the agenda of the meeting.

Furthermore, the right of expressing opinion in the form of speech, writing and the press are safeguarded by Article 13 of the Lebanese Constitution within the circle of law. Hence the right of free speech is the principle state of things and can only be limited by law, which is the exception. Hence its framework must be defined in a limited and exceptional manner because it restricts the above mentioned general principle.

The statements by the Defendant are expressions of a juridical point of view which took place within the circle of the law and without violating its provisions. Hence it is guaranteed by the Lebanese Constitution and cannot constitute any crime punishable by law, particularly the crime of Article 383 Penal Code attributed to the Defendant. Hence the prosecution of the Defendant for this crime must be annulled.

As to the demand by the Defendant for compensation further to Article 197 Code of Criminal Process, it is without legal foundation because this compensation is to be paid by the civil party plaintiff if he abuses his right of bringing action. The Lebanese State which the Defendant has requested ordering for compensation is not a civil party plaintiff in the present action. This cannot be refuted by the fact that prosecution was started by a letter sent by an administrative agency of the state because the text of Article 197 defines the party to be ordered to pay compensation as the civil party plaintiff and no one else. It should be pointed out that the state is represented legally by the head of litigation at the Ministry of Justice alone in accordance with Article 16 of Legislative Decree No. 151/83. In the absence of a civil party action brought by the state it is not permissible to order it to pay any compensation. Hence the remedy sought by the Defendant in this respect must be rejected for being unlawful.

THEREFORE

We judge:

First: The prosecutions of Defendant Muhamad Abdallah Mugraby under Article 383/209 Penal Code are nullified for lack of criminal elements.

Second: The remedy demanded by the Defendant to order the Lebanese State to pay him compensation is rejected.

Third: All costs are hereby reserved.

This judgment has been rendered and pronounced in public at Beirut this date of 27/11/2008

Judge Ziad Mkannah
(Signature)

Clerk
(Signature)