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Libyan editor's harsh conviction blow to free speech

The Libya Observer/Facebook

This statement was originally published on hrw.org on 21 November 2014.

A Libyan criminal court's imposition of a five-year prison term on Al-Ummah newspaper editor Amara al-Khatabi for allegedly defaming public officials is a serious blow to free speech that should not be allowed to stand, Human Rights Watch said today.

The court convicted al-Khatabi for an article published in the November 21, 2012 edition of Al-Ummah. The article, “The Black List of the Judiciary,” named 87 judges and prosecutors, all members of the public judiciary, whom it accused of accepting bribes and other illicit earnings, and of loyalty to the former Libyan leader Muammar Gaddafi. Al-Ummah said it had received the list from an unnamed source.

“Sending anyone, especially a newspaper editor, to prison for alleged defamation violates freedom of expression and can only have a chilling effect on the media,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “At a time when the rule of law in Libya is under huge threat from the actions of unaccountable armed groups, it is striking that prosecutors should give priority to a case like this.”

Prosecutors should not have charged al-Khatabi with criminal defamation to start with, Human Rights Watch said. Libyan authorities should withdraw this charge and abolish the laws that criminalize defamation, and which allow courts to ban persons from practicing journalism.

In a call with Human Rights Watch on November 20, 2014, al-Khatabi said he had been shocked when he received a court report on November 17 to learn that he had been convicted and sentenced on August 17. He said his lawyer would seek a re-trial as the court had reached its verdict in the absence of the defendant and his legal team.

The trial judge also ordered al-Khatabi to pay heavy damages to each of the five plaintiffs who brought the case; ordered the withdrawal of his civil rights during his imprisonment and for a year after his release; and banned him from practicing journalism for the duration of his prison sentence. The latter sentence would appear to create a system where state authorities decide who can and cannot be a journalist, which violates freedom of expression standards, Human Rights Watch said.

Since May, violent clashes between rival armed groups have intensified and developed into armed conflicts across Libya. Armed groups have committed what amount to war crimes by attacking civilians and civilian property. Unidentified assailants have killed at least 250 people in 2014 alone in what may amount to crimes against humanity. Libyan authorities have been unwilling or unable to investigate and prosecute these crimes.

Authorities arrested al-Khatabi on December 19, 2012, following which he spent close to six months in pretrial detention. On January 1, 2013, the fifth district criminal court charged him with “defaming” members of the judiciary. His sentencing took place on August 17 but neither he nor his lawyer attended it because his lawyer, who had been at the courts complex that day, told him that the court would not convene due to the armed clashes then taking place in Tripoli. Al-Khatabi told Human Rights Watch that he learned that the trial had taken place and of his sentence only when he received a copy of the court report delivered to his home on November 17 informing him of the verdict.

Authorities prosecuted Al-Khatabi under article 195 of the Gaddafi-era penal code, among other laws. Article 195 stipulates, “[...] any person who may launch what may be regarded as an attack against the Great Fateh Revolution or its leader shall be punishable by imprisonment… The same penalty shall be levied against any person who insults the popular authority, a judicial, defense, or security body […]”

On February 5, Libya's former legislature, the General National Congress (GNC), promulgated Law 5/2014 criminalizing “harming” the February 17 revolution. The new law is a mere rewording of Penal Code article 195.

Libya is a party to the International Covenant on Civil and Political Rights and the African Charter on Human and People's Rights, both of which protect the right to freedom of expression. Libya's provisional constitutional covenant ensures freedom of opinion and speech, freedom of the press, media, printing, and distribution, so long as it is not “contrary to public order.”

While everyone has a right to redress when their reputation has been impugned, the remedies should be limited to civil suits with penalties other than imprisonment, Human Rights Watch said. Moreover, to protect the public's interest in free-ranging debate on matters of governance, courts should apply a higher threshold before imposing sanctions on people deemed to have defamed public figures. To protect freedom of speech, Libya should eliminate all laws that provide penalties for “insulting” public officials and institutions, and eliminate laws criminalizing defamation. They should also revoke all powers for authorities to prevent persons from practicing journalism.

“Whether al-Khatabi was right or wrong to re-print the contested article, he should not go to prison for it,” Whitson said.

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