On 14 November, 2018, the Misdemeanors Court of Appeal in Beirut ruled to discharge three young men – two Lebanese and one Syrian – charged with homosexual relations.[1] The Syrian defendant had been tortured during preliminary investigations that involved many violations. While the court’s decision included reasoning significant to the protection of marginalized groups, one of its members, Judge Rabih Maalouf, went further in the dissenting opinion he recorded at the bottom of the ruling. This dissent was remarkable in two regards: firstly, it explicitly emphasized that homosexuality cannot be criminalized in Lebanon, and secondly, it emphasized that the investigation procedures must be annulled in an attempt to bring criminal procedure in line with fundamental rights, especially the right to privacy and protection from torture. The dissent is even more important because it aimed to put on record stances that bear important rights-related dimensions without having any bearing on the ruling’s outcome, which enjoyed a consensus among the court’s members. Before reviewing the details of this case and its long course, I must note that the court was composed of presiding judge Rola al-Husseini, auxiliary judge Carla Shawah, and the delegated auxiliary judge who recorded his dissent.

 

Grave Violations During Preliminary Investigations

In 2015, Samir went to the General Directorate of General Security (The General Security) to renew his student residency permit.[2] Yet he only returned home nine days later with an aching body and a broken spirit. Samir had been arrested because of anonymous “information” that he may be gay, and was violently beaten. While the acts of violence were aimed at making him confess to being gay, they were probably also driven by a combination of investigative practices, bullying, and both homophobia and a phobia of Syrian refugees. The investigators also interrogated Samir without prior authorization from the Public Prosecution and searched his phone without judicial authorization. All this occurred without Samir being informed of his rights. After he was referred to the Anti-Human Trafficking and Morals Protection Bureau (Trafficking Bureau) for further investigation, where he endured more violence, two young Lebanese men who had communicated with him via text messages were summoned and interrogated about their private lives and sexual orientation. Neither was beaten as the investigators were content to abuse only Samir, the youth who had fled his country seeking safety in Lebanon and an opportunity to pursue his education.

The two Lebanese men were released before Samir, as the latter had no valid residency permit. They managed to inform the association Helem about Samir’s torture. This turn of events allowed lawyers from The Legal Agenda to request a medical examination for Samir.[3] Even though this examination was performed during his detention and by a doctor approved by General Security, it did document bruises and pain in his thighs. After being released, Samir sought an examination by another, more professional forensic doctor, who documented many marks of violence on his body. According to Samir, his torture included extreme flogging with a whip made from electrical cables; slaps, punches, and kicks to various parts of his body; and threats of rape and anal examinations (the “shame tests” that successive decisions involving the Beirut Order of Physicians, the Ministry of Justice, and the Cassation Public Prosecution have banned in order to protect people’s dignity). He was also cursed, verbally humiliated, insulted and accused of being a “whore”, a “Syrian dog”, “sick”, and “disturbed”, and of having AIDS. He was administered a HIV test, which came back negative. After interrogation, Samir could neither stand nor sleep because of the pain, and his urine contained blood. He received no medical care during his detention except for medicines that helped reduce the marks of violence on his body.

The Appellate Public Prosecution in Beirut did not dwell on any of the investigators’ violations substantiated in the investigation report and medical report. Rather, it accepted the investigations’ conclusion and charged the three men with “intercourse contrary to nature” under Article 534 of the Penal Code, which the Public Prosecution offices continue to use to prosecute gay and transgender people. The number of people arrested on this charge rose from fewer than 50 in 2012 to more than 75 per year in 2015 and 2016 according to statistics from the Trafficking Bureau. The actual number of arrests related to suspicion of homosexuality is probably higher as not all arrestees – especially those arrested outside Beirut and Mount Lebanon or by other security services – are referred to the Trafficking Bureau.

 

The Judiciary Fines Victims for Disclosing Torture

In the beginning of the lawsuit, the judicial authorities treated Samir with hostility and forsook their legal responsibility to protect individuals. In particular, they did not seriously investigate the violations that the three men imputed to the judicial police, particularly the acts of torture and the collection of evidence via illegal means.

This lawsuit began before the single criminal judge in Beirut who examines infractions and misdemeanors, including “intercourse contrary to nature”. Samir told the judge that he had been tortured and that the investigations involved numerous violations. He asked that the investigations be annulled and his trial discontinued. However, the judge refused to listen to any of these pretrial motions before proceeding with Samir’s trial even though the law requires him to do so.[4]

When Samir appealed the decision to ignore his requests before the previous bench of the Misdemeanors Court of Appeal in Beirut, the court not only dismissed his appeal but also fined him LL300,000 [$US200] for frivolous litigation. It was strange and deplorable that the court decided to fine a victim requesting that his initial statement that was extracted under torture documented in two medical reports, one of which was prepared by General Security’s doctor during his detention in its facilities, be quashed. Samir challenged this decision before the Court of Cassation, but this court, in turn, dismissed the challenge on procedural grounds.[5]

After these requests were rejected without any investigation, the single criminal judge ultimately convicted the three men of intercourse contrary to nature under Article 534 of the Penal Code and fined LL500,000 [$US330] based on the confessions extracted under torture and the data extracted from their phones without any judicial authorization.

These judicial stances are all the more grievous because of the strength of the evidence provided of acts of torture and the rarity of torture victims resorting to the judiciary. This rarity stems from the difficulty of proving the torture, fear of retaliation by the security services concerned, and the expensiveness of litigation and defense, especially when the victims are usually being tried in the cases whose investigations involved their torture.

 

The Beirut Court of Appeal Refuses to Punish Sexual Orientation

After the ruling was appealed, the case once again came before the Misdemeanors Court of Appeal in Beirut. However, this time it faced the court’s new bench. Contrary to the previous bench’s stance, this bench issued a decision that rectifies the judicial process and strengthens the judiciary’s role in protecting rights and freedoms, particularly by clarifying the scope of the right to privacy.

Although the members of the bench agreed on discharging the three men because of the absence of the crime’s material element (i.e. because it was not established that they practiced sexual relations “contrary to nature”), they disagreed on the need to address the legal issues the men raised, both in regard to the permissibility of criminalizing homosexuality and the violations committed in the investigations. While the dissenting auxiliary judge saw this need, the court’s majority did not, as the evidence available in the case was insufficient for a conviction regardless of the legality of its acquisition. The court based this conclusion on the fact that the men were not arrested in flagrante delicto (i.e. in the act), that Samir was summoned based only on information, that one of the men denied having any sexual relations with men, and that Samir and the other man who had corresponded with him did not know each other in person.

The court thereby both refused to punish sexual orientation (homosexuality) and cracked down on the evidence required to punish them for their sexual activity (the act of intercourse). This stance is at complete odds with the stance previously adopted by the Beirut Criminal Court (June 2016) and the Court of Cassation (October 2016) in another case. These courts decided to punish a young Lebanese man for merely stating that he is gay and had homosexual relations in the absence of any evidence of intercourse at a specific time and place.[6]

Hence, the Court of Appeal in Beirut refused to criminalize what occurs inside people’s minds and bedrooms. It thereby seemed to be supporting the standpoint of the decision issued by the Court of Appeal in Matn a few months earlier (July 2018), which restricted the application of Article 534 to cases that “fall outside the traditional understanding of natural sexual relations between a man and woman whenever they occur in view or earshot of another person or in a public place or whenever they involve a minor who must be protected”.[7] Even though the Court of Appeal in Beirut did not provide an explicit interpretation of Article 534, the aforementioned interpretation can be deduced from its refusal to accept any evidence of homosexual relations besides arrest in flagrante delicto.

Thus, the approaches to the right to privacy adopted by the courts of appeal in Beirut and Matn have become analogous, ensuring a balance between the right to privacy and what the legislators may deem necessary to protect social values and minors. This approach draws a fine line between matters that fall within the scope of private life and that the state, judiciary, and community cannot encroach upon (feelings and consensual sexual relations between adults of any gender in private places) and matters that go beyond private life and that the community may encroach upon (sexual relations that occur in public places, are non-consensual, or involve minors).

 

Maalouf’s Remarkable Dissent in Favor of Quashing the Investigations: “The Fruit of the Poisonous Tree”

While the Court of Appeal avoided investigating the legality of the evidence and the violations committed by the judicial police, the dissenting opinion of delegated auxiliary judge Rabih Maalouf went further by putting a number of groundbreaking judicial stances on record. As he agreed with the conclusion that the court reached via majority, namely to discharge the three men, his dissent was limited to disagreeing with the other members about the legal reasoning that they adopted to reach it. This opinion was remarkable in several respects:

 

1- Rejecting the criminalization of homosexual relations

Maalouf began by referring to a ruling he issued in January 2017.[8] This ruling deemed that homosexual relations cannot be punished as they constitute an exercise of a natural right that cannot be criminalized according to Article 183 of the Penal Code, which prohibits criminalizing “an act committed in the exercise of a right without abuse”. In this regard, the dissent is all the more important because it reflects Maalouf’s independence and steadfastness despite all the pressures and public and non-public reactions he faced upon issuing that ruling. After the ruling was appealed before the Court of Appeal in Matn, The Legal Agenda’s lawyers justified their involvement in its defense on a number of grounds, most importantly the judge’s right to exercise interpretation. This defense resulted in the aforementioned decision by the Court of Appeal in Matn to uphold the ruling’s conclusion.

 

2- Rejecting phone searches without authorization from the investigating judge

The dissent condemned the practice of searching smartphones and the private data they contain without any controls. After noting that the investigators did not obtain the investigating judge’s authorization before searching Samir’s phone, Maalouf deemed – in a stance that as far as we know is the first of its kind – that this measure violates the right to protection of private life, Article 102 of the Code of Criminal Procedure, and Law no. 140/1999, which protects the confidentiality of communications. As this stance constitutes an important judicial precedent that The Legal Agenda has worked for years to establish, we will dedicate a separate article to discussing it.

 

3- Annulling Samir’s statement because of coercion

No less important is the dissent’s stance concerning the effect that proof of acts of torture by the judicial police has on Samir’s statement. It deemed that the two statements Samir made before General Security and the Trafficking Bureau should be quashed based on the two medical reports that “give much preponderance to the occurrence of beating and coercion when the appellant was interviewed in the preliminary investigation”. Maalouf justified this stance with the need to interview subjects without coercion under pain of nullity and with the principle of the fairness and legality of evidence (or what he called the principle of “honesty in the search for evidence”). Previous judicial decisions to quash statements extracted under torture during preliminary investigations remain rare and marginal in comparison with the prevalent use of various acts of coercion in these investigations, especially against marginalized social groups. This rarity has contributed to the continuation of these practices by the judicial police without any serious accountability.

 

4- Quashing all investigations based on invalid procedures

The dissent quashed the entire preliminary investigations as some parts were marred by major violations. This it did pursuant to the principle that when the basis of something is invalid, it too is invalid (i.e. the “fruit of the poisonous tree” doctrine). Maalouf deemed that because the two Lebanese men were summoned based on illegal measures by the judicial police (extracting Samir’s statement via torture and extracting data from his phone without the investigating judge’s authorization), their statements are invalid. With this conclusion, Maalouf recognized an important legal principle, namely that investigation procedures based primarily on invalid procedures are also invalid. This stance has not been observed in any previous judicial decision because most courts are reluctant to quash preliminary investigation procedures.

 

This article is an edited translation from Arabic.

 

Keywords: Torture, Court of Appeal, Homosexuality, Lebanon, Judge Rabih Maalouf

 

[1] Misdemeanors Court of Appeal in Beirut (8th Chamber), decision issued on 14 November, 2018, with presiding judge Rola al-Husseini and auxiliary judges Carla Shawah and Rabih Maalouf (dissenting).

[2] ‘Samir’ isI have used a pseudonym used out of respect for his privacy.

[3] The defense team included lawyers Nizar Saghieh, Ghida Frangieh, and Youmna Makhlouf.

[4] Article 73 of the Code of Criminal Procedure stipulates that defendants may request that the preliminary investigation procedures be annulled before they are questioned and the case against them moves forward.

[5] The Misdemeanors Court of Appeal in Beirut rejected the appeal, deeming that it did not present the reasons for appeal, whereas it actually included clear grounds. Similarly, the Court of Cassation deemed that the single criminal judge’s decision to add the pretrial motions to the merits does not adjudicate the motions and therefore is not challengeable, whereas the single judge had dismissed the motions without adding them to the merits.

[6] Karim Nammour, “Judging Identities: Beirut Criminal Court’s Phobia of Homosexuality and Right to Privacy”, first published in Arabic in The Legal Agenda (Lebanon), is. 42, August 2016.

[7] Criminal Court of Appeal in Mount Lebanon (12th Chamber), Decision no. 330/2018, issued 12 July, 2018, with presiding judge Randa Kfoury and auxiliary judges Zidan and Bou Nassar. The Legal Agenda commented on this decision in “Ba’da 4 Ahkam Ibtida’iyya, Isti’naf Jabal Lubnan Tu’linu Anna al-Mithliyya Laysat Jarman”, The Legal Agenda website, 13 July, 2018.

[8] Single Criminal Judge in Matn (Rabih Maalouf), Ruling no. 15/2017, issued 26 January, 2017. The Legal Agenda and Helem commented on this ruling in “Mahkamat al-Matn Tu’linu Mujaddadan: al-Mithliyya Hiya Mumarasa li-Haqq Tabi’iyy wa-Laysat Jarima Jaza’iyya”, The Legal Agenda website, 26 January, 2017.