On August 9, 2014, the Morals Protection Bureau of the Lebanese police raided the Hammam al-Agha (Turkish bathhouse) in Beirut and arrested all the employees and the customers at the scene, in addition to the owner. Twenty-eight people were subsequently charged with various crimes under the Lebanese Penal Code. Customers and employees were charged with infringing on public morals and ethics (Articles 531 and 532), trading indecent material (Article 533), and sexual intercourse contrary to nature (Article 534). The owner and employees were charged with practicing and facilitating secret prostitution (Article 523), luring the public into acts of depravity (Article 526), and relying on the prostitution of others [as a source of income] (Article 527).

 

At a time of growing demands to stop invoking Article 534 in order to criminalize homosexual relations, these mass arrests targeting homosexuals have been denounced. Yet, a number of legal infringements also appear to have been committed in the procedures that were followed, starting from the preliminary investigations and up to the release of those arrested. Such infringements reveal the tendency of those overseeing these investigations to favor the collective aspect of such prosecution at the expense of individual rights. They also reveal the impact of prejudice against homosexuality on such investigations.

 

Described below are the most prominent of such infringements. To preserve confidentiality and respect the privacy of those concerned, no allusion has been made to the content of the investigations that took place.

 

Investigations Initiated Illegally and Without Legitimate Cause

 

Investigations into the Hammam al-Agha case began with a routine investigation by the General Directorate of General Security (hereafter General Security) into the case of a foreigner who had lost his identification documents. The report mentions the following reasons for initiating investigations:

“[the foreigner’s] behavior, as well as his discourse, was found to be uneven. The  [officer] heading the [security] branch was informed of this, and ordered us to take [the foreigner’s] statement and search the mobile phone in his possession. The phone was found to contain sexual videos of males amongst themselves, as well as exchanges of a sexual nature between [the foreigner] and others, about massages and sexual acts. We then proceeded to take [his] statement.”

After the interrogation, the investigator informed the Public Prosecutor at the Appeal Court in Beirut of the case. The public prosecutor ordered the foreigner’s arrest and the referral of his case to the Morals Protection Bureau of the Internal Security Forces (ISF) – so that it may continue with the investigation.

 

The General Security Initiated Investigations Without any Evidence That a Crime Had Been Committed. The report did not mention what it was about the foreigner’s behavior or speech that indicated the possibility that a crime might have been committed. It was merely considered “uneven”, as if the investigators simply “didn’t like his look”. The fact that they found evidence related to his sexual activity on his mobile phone does not justify this infrigement, as they had no legitimate reason to search the contents of his phone to begin with.

This indicates that the law enforcement agents engage in discriminatory practices that can be described as “gay profiling”. Such practices rely on a man’s appearance or “unmanly” demeanour to initiate investigations, without any tangible evidence that a crime has been committed.This type of discrimination on the basis of sexual orientation or on the basis of affiliation to a particular racial, religious or social group is considered unlawful in a number of countries, given its infringement of civil rights and individual freedoms, especially of the principle of equality and the right to privacy.

The General Security Broadened Investigations Beyond its Jurisdiction Without Orders From the Public Prosecution. The Public Prosecution had merely referred the case to the General Security for investigation into the issue of the lost identification documents. Yet, the General Security broadened the scope of the investigations of its own accord and without the Prosecutor's prior authorization, despite the fact that the issue it investigated (sexual activity) did not fall under its jurisdiction. Indeed, the General Security searched the foreigner’s mobile phone and interrogated him as a “suspect” rather than a “petitioner”, without an order from the Public Prosecution.

 

This constitutes a violation of Articles 40 and 47 of the Lebanese Code of Criminal Procedure. The latter requires the judicial police to obtain a mandate from the Public Prosecution in order to investigate crimes, that are not discovered in flagrante [1]. It also bars the judicial police from searching individuals without prior authorization, at the risk of rendering the investigation null and void. Nevertheless, the public prosecutor turned a blind eye to such infringements, allowing for the possibility of carrying out the Hammam al-Agha raid.

 

Collective Punishment at the Expense of Individual Rights

 

The following infringements clearly reveal the public prosecutor’s intent to punish all those present at the hammam, without having reasonable grounds for arrest and prosecution on a per person basis:

 

The Decision to Arrest all Those Present at the Bathhouse was Taken in Advance. Before the raid was carried out, the public prosecutor had ordered “the arrest of all employees of the establishment, as well as its customers and its owner, after verifying that acts contrary to morals were taking place…”. Their mere presence at the bathhouse was thus considered sufficient grounds to arrest everyone (including the customers). Meanwhile, the public prosecutor ignored the need to establish strong suspicion connecting every single one of them to the crimes they were being charged with.

Since the crime is considered to have become in flagrante after the bathhouse was raided, in view of the evidence found within, the order to arrest all those who were present violates the Code of Criminal Procedure (Articles, 31, 32 and 41). The latter requires distinguishing between two categories of individuals present at a crime scene: “witnesses” who “witnessed the offence or possess information about it”, and whose testimony should be heard without arrest; and, “suspects” about whom “there are strong suspicions” who should be arrested and interrogated. It seems clear from the spirit of the law that mere presence at a crime scene cannot in itself constitute “strong suspicion” of involvement in a crime.

An Unidentified and Silent Detainee. Reinforcing the notion of collective prosecution at the expense of individual rights, is the fact that investigators neglected to interrogate one of those arrested. No statement was taken from one bathhouse employee at any stage of the investigation. He was not informed of his rights despite being arrested and detained at the Morals Protection Bureau, and having charges pressed against him and being transferred to the Zahle prison. Even his identity was not verified in the police report. The latter merely mentioned his name and description in the list of those arrested, without recording his nationality, age and address, as if he were an “unidentified detainee”. Even worse is the fact that the Public Prosecution’s interrogation report (a formal report often drawn up without an actual interrogation) contained the phrase “I repeat my initial statement”, with no qualms about the fact that there was never any such statement. This is perhaps the gravest of the infringements committed in this case, as well as a clear violation of the Code of Criminal Procedure (Articles 32, 41 and 47), and of the detainee’s fundamental rights.

Failing to Document All Taken Statements. The statements of a number of employees repeatedly mentioned the fact that they had previously denied the contents of their current statements, without any such prior statements being included in the police report. Such an infringement raises concerns about the possibility that some of those arrested were pressured and coerced, and perhaps even tortured into divulging information. By law, they had the right to remain silent during their interrogation by the judicial police

Pressing Charges Against Customers Without any Evidence. Further confirming this aspect of collective prosecution is the fact that the public prosecutor charged all those arrested with several crimes, without any evidence connecting most of the customers to those crimes. As is the case with taking decision to arrest them before the raid took place, the charges pressed against most of the customers were based merely on their presence at the bathhouse at the time of the raid, without any further evidence.

 

Violations of Privacy Due to Prejudice Against Homosexuality

 

Subjecting all Those Arrested to HIV Tests Without any Justification. As per the public prosecutor’s instructions, all those arrested were tested for HIV without any apparent justification. These tests provided no useful evidence for prosecution and were essentially irrelevant, having no bearing of any kind on the course of the investigation. They were also conducted without the consent of those arrested by a Morals Protection Bureau investigator, not by a physician.

This constitutes a violation of the Code of Criminal Procedure, which requires the appointment of a physician to examine those arrested if they request it (Articles 32 and 42). It also represents a violation of their privacy and of the confidentiality of information regarding their health, especially as they were forced to submit to these tests without their request or recorded consent. This indicates the Public Prosecution’s belief in an unjustified connection between sexual orientation and HIV infection, leading it to violate procedures and the privacy of those arrested.

Subjecting all Those Arrested to Drug Tests. All those arrested were also tested for illegal drugs, as per the public prosecutor’s instructions. This is despite the lack of evidence that any of them had used such drugs, and the fact that no narcotics were seized. Aside from such tests being completely unjustified, their results have serious legal implications since they could lead to prosecution for illegal drug use. Once again, this indicates the Public Prosecution’s belief in an unjustified connection between sexual orientation and illegal drug use.

Searching the Mobile Phones of Those Arrested. The public prosecutor ordered the search of the mobile phones of all those arrested after the raid, allowing investigators to examine their messages and pictures and to question them about their content. Such practices raise several legal concerns, given that they violate the privacy of those arrested and compromised the confidentiality of their exchange. While the judicial police and Public Prosecution’s Office have been dealing with mobile phones as part of the evidence seized and which can be searched, searching mobile phones actually constitutes a violation of Law 140/1999. This law prohibits any kind of wiretapping, surveillance, interception or disclosure of exchanges made through any means of communication (such as mobile phones or email), except by a written and justified court order issued by an investigating judge. Recently, the US Supreme Court in fact ruled against the legality of searching mobile phones without prior judicial authorization, given the private information they might contain – information that should not be considered seized evidence like any other item those arrested might be carrying on their person.[2]

Prying into the Sexual Activity of Those Arrested. Investigators did not hesitate to question those arrested about intimate details regarding their sexual activity. The questions they asked reveal a number of preconceptions about homosexuality, especially with regard to its causes. Traditional clichés surfaced, linking homosexuality to hereditary causes and to exposure to sexual harassment. One of those arrested even had to assert that he had never been sexually harassed as a child. These kinds of questions indicate the investigators’ lack of understanding of homosexuality as a normal sexual orientation, and their lack of training to grasp modern social and scientific concepts. They thus rehashed a much outdated and long-discredited discourse about homosexuality.

 

Violations of Personal Freedom

 

Failure to abide by regulations regarding arrests and releases constitutes a violation of the personal freedom of those arrested, which is protected under Article 8 of the Lebanese Constitution.

 

Arrest Warrants Were Issued Despite Failure to Meet Legal Conditions. The public prosecutor issued arrest warrants against all customers present on the scene, despite the fact that they were charged with crimes punishable by prison sentences of under a year. This constitutes a violation of the Code of Criminal Procedure (Articles 46 and 107), which requires the occurrence of a misdemeanor in flagrante punishable by a prison sentence of over a year, in order to issue an arrest warrant.

Lebanese Detainees Were not Automatically Released. After being detained for periods of time ranging between four and ten days, all those arrested were released by the Single Criminal Judge in Beirut. With the exception of the owner, bail for their release was set at amounts ranging between LL (Lebanese Pounds) 100,000 [US$66] and LL300,000 [US$200].

 

The decision to impose bail on the arrested Lebanese customers, and to release four of them more than five days after their arrest, constitutes a violation of Article 113 of the Code of Criminal Procedure. The latter requires the automatic release of those arrested without bail five days after their arrest, if they are Lebanese and if the misdemeanor they are charged with is punishable by a prison sentence of under two years, and if they have no prior convictions.[3]

 

This article is an edited translation from Arabic.

 

__________

[1] An offence discovered in flagrante is:
(a) An offence witnessed as it occurs

(b) An offence where the perpetrator is apprehended during or immediately after its commission;

(c) An offence following which the suspect is chased by hue and cry;

(d) An offence detected immediately after being committed, within a time where traces of its commission are clearly discernible;

(e) An offence where a person is caught in possession of objects, weapons or documents indicating that he is the perpetrator, within twenty-four hours of the occurrence of the offence

[2] United States Supreme Court, Riley vs California, 573 U.S. ___ (2014).

[3] Article 113 of the Code of Criminal Procedure states that: “Where an offence is a misdemeanor carrying a maximum penalty of two years’ imprisonment and the defendant is Lebanese and resident in Lebanon, he is automatically entitled to be released five days after the date of his arrest, provided that he has not been previously convicted of an infamous offence or sentenced to imprisonment for at least one year.”