The Daily Star - Most Lebanese prisoners still in pretrial limbo, June 22 2012

BEIRUT: While the plight of nine Islamist detainees who had spent five years in jail without charge was recently thrust into the national spotlight with their release this week, thousands are still languishing in prison without trial.

Only these high-profile cases, as with the four generals released in 2009 after four years in detention without charge – originally suspected in the assassination of former Prime Minister Rafik Hariri – have garnered considerable media attention, but the vast majority of those in the country’s prisons are also in this pretrial stage.

Some have received charges against them, but few know when their case will come to trial or how long they will spend in prison, with many spending years in this judicial limbo.

An Internal Security Forces source told The Daily Star that of the 5,100 detainees currently in prisons, 3,744, a whopping 73 percent, were in this pretrial stage.

However, a source from the Justice Ministry said that the number now stood at 2,780, that is, 54 percent, with many having been released, some through legal steps and others for political reasons, after recent riots in various prisons across the country, the source added.

Whatever the exact figure, the phenomenon “is not only immoral, it’s illegal,” said Wadih al-Asmar, secretary-general of CLDH, the Lebanese Center for Human Rights.

“People are in jail, and they have no idea how long they will be there,” added Asmar.

Article 108 of the proceedings of the Penal Code stipulates that for a crime less serious than a felony, where the eventual sentence will not exceed three years, the time in the pretrial stage must be only two months, renewable once.

For felonies, the time in pre-trial detention should not exceed six months, renewable once.

However, Asmar believes the majority of detainees spend around two to three years in this halfway house, and as seen with the Islamist detainees, some spend even longer.

There are exceptions to these time limits, though. Crimes with no maximum time limit for pretrial detention include rape, murder, terrorism and any other cases processed before the Judicial Council or Military Tribunal.

But cases of arbitrary detention, when suspects are not told of the evidence against them, or when their case will go to trial, are in contravention of international law.

“According to the U.N. this refusal of justice is not acceptable,” Asmar said. “The benefit of doubt should fall with those detained, not with the state.”

Detaining people in this pretrial stage for such periods contravenes the general rule of law, and the Constitution, according to Nizar Saghieh, a prominent human rights lawyer.

“It’s very well known that pretrial detention is a form of torture,” he added.

A lack of resources is commonly cited as the reason behind keeping the majority of detainees in this pretrial stage, but for Saghieh, this is an illegitimate excuse.

“When we say ‘lack of resources’ we have to say ‘lack of resources dedicated to justice and to trials,’” he said, adding that “a lack of resources is not a pretext in international standards of law.”

“It is nonsense: they should locate enough resources to allow everyone a fair trial. The state is denying justice to these people.”

For Nadim Houry, deputy Middle East director at Human Rights Watch, a scenario that should only affect a minority of detainees has become the norm.

The judicial phrase “innocent until proven guilty” has been inverted, Houry added.

“In Lebanon there is a long-standing tradition,” Houry said, adding that the “default here is that you keep them in detention.”

“Pretrial is supposed to be the exception to the rule, when a suspect is considered a flight risk, or a danger to society.”

The effects of such widespread use of pretrial detention affect not only the prisoners themselves, but society as a whole, Houry said.

“The time that people spend in jail has a real cost for the person, for their family and for society. You’re marginalizing people.”

On an individual level, he said, sustained pretrial detention disrupts a person’s life. It is associated with social stigma and the person risks losing his or her job, being rendered unable to support their family.

But there are also wider effects in a country in which detainees are not separated in jails by the crime committed, or allegedly committed, added Houry.

“You might have been caught with a small amount of drugs on you, but you might be kept with more serious criminals, and then it becomes a school of crime.”

Asmar, at the CLDH, believes that the sense of injustice felt by those in this pretrial stage, whether or not they are innocent, can have huge ramifications.

“When you are in prison and you know you are going to be there for five or 10 years, you can make plans. But when you don’t know if you will be released tomorrow or next month or in 10 years, this can create very difficult psychological problems for you and for your family.”

This image of injustice can also create heroes out of people who may have been guilty of crimes, Asmar added.

The Islamists released this week were greeted with fanfare, rice scattered on them as they returned home, from this undeniably unjust experience.

“We are creating victims out of people who might not have been innocent,” Asmar added.

That Prime Minister Najib Mikati paid bail for the seven Islamist detainees released Tuesday is “frankly ridiculous,” according to Houry at HRW.

“I don’t want them to pledge their salaries, I want them to spend government money on prisons: It’s a core function of the government.”

In 2009, after the four generals were released, then-Justice Minister Ibrahim Najjar authored a draft law that would have removed the exceptions allowing pretrial detention to continue indefinitely. Instead, terrorism was added to the list.

“I realized that it was unacceptable to detain somebody for such a long time without being submitted to a fair trial,” Najjar told The Daily Star.

Since his draft law failed to gain support from Parliament, Najjar has been working to challenge this human rights issue, what he calls the “abusive” use of provisional detention.

While there are clearly problems with the law itself, Najjar believes individual judges are also applying the law arbitrarily.

“I think that there is something political in this issue ... [judges] have to face public opinion, and they often have some very clear backing from [political] leaders.”

Asmar believes the phenomenon is being used by judges as a form of punishment, and wants to see judges being held accountable when they abuse pre-trial detention.

The Justice Ministry source told The Daily Star that judges and prosecutors should be called upon to resort to pretrial detention only in cases when it is absolutely necessary, and that claims that the procedure is often used as form of punishment in itself are accurate.

For Houry, it is imperative that the open-ended legislation relating to pretrial detention has to be amended, allowing it to become the exception rather than the norm.

Alternatives must also be sought afterward, he added. “We need a better use of bail, and alternatives such as house arrest could be pursued.”

Houry said that a system of electronic tagging, used by many countries on those awaiting trial, could also be introduced in Lebanon, and that “would really help this dangerous issue” of pretrial detention.

As it stands, “There’s a lack of transparency and objectivity, and there’s a lack of trust in the judicial system,” a system which, he added, “is really broken.” – With additional reporting by Youssef Diab

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