STATEMENT BY DR. MUHAMAD MUGRABY, ATTORNEY, TO

HUMAN RIGHTS AND RULE OF LAW NGOS ON THE CONTINUED VIOLATION OF HIS BASIC RIGHTS AND NOTABLY THE RIGHT OF DEFENSE, THE RIGHT OF FREE SPEECH, THE RIGHT TO WORK AND THE RIGHT OF ACCESS TO THE JUDICIAL SYSTEM

Ladies and Gentlemen:

1. I am addressing you and, through you, the family of human rights and rule of law advocates in Lebanon and the world to familiarize you with the ongoing situations related to me over the last fifteen years during which I have been targeted with an injust campaign aimed at ending my activities in the defense of human rights and the rule of law by finishing me professionally and inflicting the gravest moral and material damages on me.

2. For I was and continue to be a defender of human rights and the rule of law based on my professional abilities and knowledge as an attorney and jurist. I realized that the first step to enabling the defense of human rights and the rule of law is to defend the freedom of speech and enable this freedom, and to defend the right of defense and exercise this right. Without the right of defense, the legal profession cannot exist. There could be no right of defense without the right of free and equal access to the justice system. The exercise of the right of defense is not possible without the right of free speech. Unless the judicial process is characterized with integrity, the exercise of the right of defense is fruitless. Unless attorneys enjoy safeguards in their exercise of the right of defense starting with guaranteeing their right to work without any intimidation or other obstacles, there would never be an attorney who could exercise the right of defense. Unless all the foregoing is fully guaranteed there could never be a rule of law and society will fall victim to oppression.

3. I published and continue to publish my ideas in the form of articles and books. This did not satisfy me. Hence I provided my services pro bono for the defense of hundreds of persons and I taught many more how to exercise this right. I believe this to be the reason why the authorities desperately attempted to prevent me from the exercise of the right of defense by targeting my personal right of defense, right to work and right to practice the legal profession.

4. Over the last few days two related developments took place which are at the heart of the reasons why this meeting was convened. These are:

1. On November 6, 2008, Criminal Judge of Beirut Ziad Mkanna handed his ruling on my motion of procedural exceptions which I had filed against this second criminal prosecution for the human rights testimony I gave in the European Parliament over five years ago, i. e. November 4, 2003. The first prosecution was launched against me in 2004 in the military justice system and ended on April 15, 2006 with the decision issued by the Military Court of Cassation in my favor based on the finding of no criminal act in the case. But Judge Mkanna dismissed my motion and, after a short trial, reserved the case for a decision on the merits on November 27, 2008. In that hearing I went on record as telling Judge Mkanna that the human rights conditions in Lebanon were bad enough in November 2003 and they are just as bad today.
2. On November 11, 2008, it came to my attention that a “court” had, on November 3, 2008, issued a ruling on the two motions I had filed on July 15, 2008, with the court of appeal at Beirut in the appeals I had filed in the year 2002 and the year 2003 against two purported decisions issued by purported “disciplinary councils” for lawyers. The relief sought in the motions was a declaration that the “decision” challenged in each of the two appeals has no force or effect. The decisions issued by the “court”, and partly signed by persons who could not be identified, without identifying the court itself as required by law, dismissed the motions because they wer signed by me, on the basis of “the content and effects” of the second “decision” which is supposedly challenged in the second of the two appeals and cannot have any force or effect under clear and valid legal rules, and without any further reasoning.

5. Obviously, my prosecution for the testimony I gave on the conditions of human rights constitutes a challenge to my human right of free speech. The decisions of the “court” on November 3, 2008, target my right of defending me in court. In Europe the right of defense is the backbone of the European Convention on Human Rights and is safeguarded in Article 6 thereof. The two said rights are among the most significant human rights and there can be no rule of law without them.

6. My prosecutions for my testimony in the European Parliament has received much publicity. The text of this testimony is available to whoever is concerned. But the matter of denial of my right of defense in ongoing judicial proceedings with the purpose of banning me from the practice of my profession has not received similar coverage. Here is a summary thereof.

7. There are two disciplinary “decisions” in absentia which I consider to be inexistent by reason of nullity. The first one carries the date of April 4, 2002 and the second one the date of January 17, 2003, both of which I timely challenged on appeal asking for the relief of declaring them null, void and inexistent. Both appeals name the Lawyers Association at Beirut and its then president Raymond Chedid as respondents. They also name other members of the then council of the association including the current president.

8. On August 29, 2003, I was released after I had been detained for three weeks on the charge by the public prosecutor that I was ‘impersonating’ a lawyer partly based on Article 110 of the unpublished “Internal Bylaws” of the Lawyers Association, which was done pursuant to orders of the then chief public prosecutor Addoum on orders from higher up. Chedid, who was officially my adversary in the above mentioned appellate court proceedings, submitted on September 3, 2003, a written request to Tanios Khouri, then chief of the Higher Judiciary Council, alleging that I was no longer authorized to practice law further to the “decision” of January 17, 2003, and Article 110 of the unpublished Internal Bylaws, and requesting the circulation of his allegations to all courts. Khouri complied, inscribed a few lines on the bottom part of Chedid’s letter that constitute an endorsement, and circulated the document to all courts under the date of September 4, 2003.

9. In hearings on October 15, 2003, before the Court of Appeal headed by Judge Bou Nasif, Bou Nasif raised the issue of the Khouri Circular and accepted it as valid and enforceable to the effect that I no longer had the power to represent myself. In subsequent hearings on December 17, 2003, Bou Nasif reconfirmed that position openly stating that the two “decisions” had immediate force and effect pursuant to the “Internal Bylaws”. This forced me to file action in the General Panel of the Court of Cassation against Bou Nasif’s acts. On January 9, 2006, the General Panel issued a decision written by Judge Ralph Riashi dismissing my action in form on the unfounded pretext that I filed to append to my petition the supportive documents, although all those documents are part of the case file in the Court of Appeal and in spite of the fact that the law mandates that the entire case file of the lower court be appended to the file of the court making the review.

10. Hence the two decisions of November 3, 2003, constituted a tacit endorsement of what Nasif did in December, 2003, which also means that I had no right to file the two appeals that I personally signed. Furthermore, preventing me from representing myself in the two appeals against the challenged inexistent purported decisions constitutes a denial of the right of defense which I have and which is protected by the safeguards accepted internationally and provided under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention of Human Rights. Such denial aims at upholding the two “decisions” with retroactive effect and enforcing a death sentence against my against me professionally and morally, putting an end to my professional career, and ending my activities in the defense of human rights and the rule of law. All this would be achieved through the discriminatory application of Article 655 CCP which requires that all appeals be signed by a lawyer, or else they would be defective in form and hence inadmissible, but without recognizing Articles 553 and 564 CCP which plainly provide that all decisions in first instance processes have no effective force as long as the appeal period is open or after an appeal is filed. Hence the challenged “decisions’ have no effective force and no one may seriously dispute my professional credentials.

11. I had exhibited to the court of appeal a consultative opinion dated July 11, 2008, by a French jurist, Maitre Jean Talandier, in which he asserted that appeal in all cases including disciplinary case, unless the law plainly states otherwise, have a suspensive effect. At the end of his consultation Maitre Talandier came to a simple conclusion that I am “found in a professionally hostile environment”. He must mean the environment consisting of the lawyers association and the judiciary. He did not realize that such unusual adverse environment is caused by the hostile political environment. That is, my suffering is the result of a political decision made in the early nineties and is still in force because its reasons are still valid in my exercise of my right of speech and the right of defense and in my being an independent minded jurist who fearlessly defends human rights without any political affiliations of any kind.

12. It goes without saying that the ongoing second criminal prosecution against me is not the only such prosecution pending, for there are other live prosecutions pending or in process as I will detail herein below.

13. For I have dedicated the greater part of the abilities of the law office I established over forty years ago to insure the right of defense pro bono whose numbers since 1992 exceed 343 client who were denied this right, in addition to my regular clients. Hence the retribution taken against me took the form of attempting to close down my office and deny me personally the right of defense.

14. Beginning in 1992 I defended pro bono dozens of prisoners of conscience and other victims of human rights violations and abuse of power. Before military courts, I defended 36 clients in 20 cases. In the face of the Solidere scheme that usurps the rights of the Lebanese, and notably the people of Beirut, in the old City of Beirut, I defended I defended 56 clients in more than 40 civil actions and 16 criminal complaints. I joined with dozens of clients the action filed by the Council on Development and Reconstruction against Solidere to recover the unbudgeted substantial funds paid by CDR on behalf of Solidere to judges and other members of the appraisal and distribution committees and special courts. I defended, and continue to defend, against the unlawful demolition of the Khayat Building and its coercive expropriation, and against the seizure of the Hamalian Building and its setting over to a third party. I accepted the representation of, and defended, 167 retirees of the national electricity authority, Electricite du Liban, and 61 retirees of the National Authority for the Litani River and filed 228 actions for the defense of their compromised rights. I defended dozens of farmers in the Marjayoun area against the attempts to evict them from their farms and homes for the second or third times, after having been earlier evicted by the Israeli forces by force, in order to further enrich certain persons of money and power who have been attempting to unlawfully lay their hands over those fertile lands strategically placed between Al Hujair Valley and the Litani, in 27 civil and criminal cases and 9 administrative cases. I am one of the few who dared sue the state for its responsibility for the errors of judges with 21 actions. I filed 15 complaints with the Judicial Inspection Bureau. Moreover, I filed many more actions and complaints in defense of public interest against prime ministers, cabinet ministers, members of parliament, directors general, security officers, politicians, judges and prosecutors. This includes the complaint over the one per mill tax collected by the Lawyers Association. I defended the interests of Dr. Edward Lyan, uncle of the murdered little girl Natalie Dabbas, after the investigation of her murder was closed in a bad way. I defended the retired Army Major Keitel Hayek before the Justice Council, but failing to safeguard Keitel’s most elementary rights I moved for the recusal of the Council’s Chief, and having been unsuccessful I resigned the case. I filled actions in the Council of State over matters related to general parliamentary elections, naturalizations, the Lawyers Association, judicial inspection, the Ministry of Justice and the Presidency of the Republic. I researched and reported over the volume of selective appointments of judges on special courts and commissions and raised the issue of free gasoline handouts to judges. The total number of actions undertaken by my law firm for the defense of human and other basic rights came to 401, while the number of public interest actions I defended number 59. The grand total is 460 actions in which I represented 343 victims of human rights violations and abuse of power.

16. These are the main landmarks of the campaign against me:

1. On November 24, 1994, the Army Commander requested my prosecution in military justice because of a fax I sent to Amnesty International.
2. In February, 2000, I launched, together with a large group of lawyers and laymen, the Campaign for Judicial Integrity (CJI) which was aimed at covering the defects of our justice system and making recommendations for its reform on foundations that safeguard justice, integrity and the rule of law. This was responded to on April 25, 2000 when the Higher Judiciary Council issued an order tacitly accusing me of insulting the judiciary, which was referred by former Chief Public Prosecutor Addoum to the Public Prosecutor for Beirut Maamari, who treated it as a civil party complaint giving rise to a series of prosecutions in which he participated along with three judges and the Justices Solidarity Fund.

3. On November 21, 2001, former president of the Lawyers’ Association Lyan filed a civil party criminal complaint against me before the public prosecutor in Beirut in the name of the Lawyers’ Association, which gave rise to my prosecution without a legal basis, particularly that his mandate as president of the association had expired before the filing of the complaint! The essence of this complaint is that I criticized the Lawyers Association’s Council for being rash in consenting to a direct civil party complaint brought before the Investigating Judge at Saida against a lady lawyer, Izzat Shmaisani, because she reported to the chief court clerk that her fugitive client had told her over the phone that he bribed the court to release him unlawfully. Subsequently, the Judicial Inspection Bureau took a statement from Ms. Shmaisani as a witness in a disciplinary investigation. As she was prematurely denied the right of defense, I represented her in a proceeding before the court of appeal to vacate the consent issued by the Lawyers Association Council. The association’s representatives, however, pressured her to discharge me which led to her indictment, trial and sentencing without the benefit of representation by another lawyer. She served her sentence and moved to Sweden.

4. Former Lawyers Association President Chedid, who succeeded Lyan, suddenly revealed alleged decisions made by Lyan to refer me to the disciplinary council, followed by alleged disciplinary referrals which Chedid made on his own and resulted, after inexistent procedures before an inexistent and illegitimate disciplinary council, in an alleged “decision” in absentia purporting to strike my name off the roll of active attorneys and bearing the date of January 17, 2003. This followed an earlier “decision” in absentia dated April 4, 2002, purporting to suspend me from practicing the legal profession for three years. The Lawyers Association did not, however, deal with the said process as serious and effective because, later on, it collected from me annual membership fees, President Chedid authorized me to accept retention as an attorney against certain colleagues and all my powers of attorney on behalf of the clients of my law firm were registered with the Association.

5. On April 29, 2002, a judge filed a civil party civil complaint against me for the action I had earlier filed with the Council of State against the State of Lebanon to vacate decisions he had issued administratively after I had petitioned his recusal. He was not named a party to the administrative action. Mr. Chedid gave consent to prosecute. This process is pending in the Indictment Chamber of the Court of Appeal.

6. A large number of colleagues nominated me for President of the Lawyers Association. According to many this post is a monopoly of Christians in general and Maronites in particular, which excludes me. This prompted a delegation from my campaign supporters to call on Maronite Patriarch Cardinal Sfeir on August 1, 2003 by appointment – and I was among them – in order to seek his opinion on this matter. One week later, I was unlawfully arrested, charged with “impersonating an attorney”, and detained at the Roumieh Jail until I was released on bail three weeks later.

7. Upon my release, Judge Tanios Khouri, in his capacity as President of the Higher Judiciary Council, issued a Circular on September 4, 2003 adopting the allegations of former President Chedid that I am definitely stricken off the roll and prohibited from practicing the profession by the inexistent decision of January 17, 2003, and Article 110 of the Internal Bylaws of the Association, without asking for my position or allowing me to reply to the allegations in compliance with the right of defense. Accordingly, the courts started complying with the said Circular which jeopardized me, my office and my clients.

8. The content of two opinions, one by the Legislation and Advisory Bureau of the Ministry of Justice and the other by the Conseil d’Etat, are evidence that the circular of Judge Tanios Khouri is without legal merit and of no force. Despite this evidence, Khouri presided over a number of general panels of the Court of Cassation that made decisions supportive of the content of his circular by saying that the alleged decision of January 17, 2003, is effective immediately, i.e. that it has a force much stronger than judicial orders. Those decisions were adopted without any hearings where I may be able to exercise the right of defense. They are characterized by denial of justice and extremely despotic. I have made applications for their rescission which remain pending..

9. It is even more bizarre that the special court of appeal with jurisdiction over my challenges to the alleged disciplinary decisions in absentia is a hybrid made up of an ordinary appeal panel consisting of a president, and two judges, plus two members who are lawyers nominated by the Lawyers Association. It was chaired by Judge Elias Bou Nasif who is notorious for his role in the Metn parliamentary by-elections of June 2002. Bou Nasif declared in open court his compliance with the circular of First President Tanios Khouri. This court is required by law to sit in a closed session. Moreover, he directed me to retain the services of an attorney to represent me in the action because, purportedly, I was no longer permitted to represent myself. He made that decision without the participation of the other panel members and at a time when he and the two other judges were forbidden by Article 751 CCP from acting in any matter that concerned me by reason of the responsibility of state action involving them for the decision they had made in my challenge to former President Chedid’s decision made in the name of the Lawyers Association Council rejecting my candidacy in form. In other words, the panel was not duly constituted at that time, i.e. in December, 2003. This led me to file another state responsibility action against him and the two other judges on the panel.

10. On April 10, 2003, the Third Chamber of the Court of Cassation ruled on the challenge I filed against the decision of the Indictment Chamber of the Beirut Court of Appeal that indicted me, in plain contradiction with the explicit legal text, for the felony under Article 111 COLP and, at the same time, for the misdemeanor under Article 393 Penal Code, with total disregard to Article 181 Penal Code which provides that, in the event of conflict between a general law and a special law, the special law alone shall apply. Furthermore, Article 111 COLP is part of a more recent law and superseded Article 393 Penal Code. The Cassation Chamber was chaired by Judge Ralph Riashi by special mandate. It struck down the indictment with respect to Article 111 COLP for lack of its conditions but left standing the prosecution under Article 393 Penal Code. The voiding of the indictment under Article 111 should, however, have necessarily and automatically resulted in the annulment of the indictment under Article 393 Penal Code in compliance by the rule provided by article 181 Penal Code and as a result of the more recent Article 111 Penal Code having modified and superseded the older Article 393 Penal Code. Therefore, I again filed a state responsibility action before the Court of Cassation’s General Panel. It is still pending.

11. My testimony before the European Parliament, by official invitation, on November 4, 2003, on the state of human rights led to a new prosecution against me. On February 26, 2005 after twelve days of the assassination of former PM Rafic Hariri, I was arrested by order of Chief Public Prosecutor Addoum who was Minister of Justice at the same time, through one of his assistants, in order to interrogate me at the criminal investigations squad, located on the ground floor of the Ministry of Justice, with respect to the content of my testimony in the EUP in Brussels based on an intelligence report sent by Lebanese Ambassador in Brussels Fawzi Fawaz. My detention sparked an outcry among my friends which eventually led to my release late in the evening. This process did not stop. The file was sent to the Military Prosecutor who charged me on June 8, 2005 with the offense of contempt of the military establishment on Lebanese territory! But, in an atmosphere of intense local and international pressure, the military court of cassation convened on April 15, 2006, i.e. between Good Friday and Easter, and decided to accept the challenge for lack of jurisdiction I had filed, found that there was no criminal act to prosecute, and, accordingly, dismissed the action in form.
12. I was unaware for a long time that, on January 9, 2006, when I was supposed to be on trial and summarily sentenced by the Military Court, a judgment by the General Panel of the Court of Cassation dismissed in form my challenge with respect to the rulings and acts of Presiding Judge Bou Nasif and the other judges on his court, setting a new precedent in conflict with the law. As for the military court file, it was repossessed by the Chief Public Prosecutor who had it referred to the Beirut Public Prosecutor Maamari for further prosecution. Accordingly, Assistant Public Prosecutor Yaqzan charged me on May 18, 2007, under Articles 383/209 Penal Code and referred the case for trial before the criminal judge but without describing the criminal act violating said articles.
13. The second prosecution for my testimony in the European Parliament was seized by Judge Mkanna as described above.
14. Although he is banned from exercising any of the functions of his office against me for he is one of the judges named in state responsibility action No. 236/2004 for the acts and decisions related to my detention in August 2003, Public Prosecutor Maamari ordered the police to issue a “search and apprehend” warrant against me in order to arrest me on account of a claim for judicial fees of less than LBP20,000 (EURO 10) by the Conseil d’Etat (removed on March 20, 2007), which is unlawful.

15. On February 20, 2007, I was surprised by a news article in As-Safir newspaper reporting that Investigating Judge at Beirut Ouneisi resumed investigations in four old prosecutions against me dating back to May 2000. In fact, they were five actions but two of them had been joined. Those actions were totally suspended after I challenged the decisions of the Lawyers Association Council chaired by Lyan authorizing my prosecution. The challenges lied dormant at the court of appeal. I was further surprised to find that two judges, who are civil party plaintiffs in the aforesaid actions, personally appeared at the clerk’s office of the court of appeal and requested on the record that a hearing date be set, each in his respective action. Simultaneously, they each filed a copy of the General Panel’s judgment of January 9, 2006, to justify the restart of the proceedings. One should point out here that some judges have adopted a new idea that challenging the permissions to prosecute does not suspend their force and the prosecution continues uninterrupted despite the challenge. Although prosecution in the above-mentioned actions is time-barred, that this fact was brought to the attention of Judge Ouneisi and that he was bound to discontinue the prosecution for that reason, Ouneisi remained adamant on going forward with the which forced us to submit, on March 8, 2007, a motion to dismiss on procedural grounds in each of the five actions. Those motions remain pending! In October, 2007, Ouneisi dismissed four of the five motions while referring the fifth to the Lawyers Association for its consent in accordance with Article 79 COLP. I promptly challenged all those decisions before the court of appeal, and my appeals remain pending.

16. On May 23, 2007, I filed an application to rescind the judgment of January 9, 2006. Earlier and I had filed similar applications with respect to General Panel’s decisions against me No. 8/2004 of March 26, 2004 – Case No. 214/2004, and No.19/2004 of June 10, 2004 – Case No. 221/2004. None of these applications has yet been heard.

17. The official hostility has not been confined to me (It came to telling people that whoever hires me for his lawyer will see his sentence double) but was extended to my clients and to my closest relatives. For example, my son Ziad was prosecuted twice, once in the military court and another time in a regular criminal court, through the efforts of prosecutor Maamari who also permitted himself to send policemen to attempt to arrest my wife and ordered the police to issue a search and apprehend warrant against me in order to have me arrested. Referee Judge Mizher authorized the demolishing of the Khayat Building although he is only permitted by law to issue temporary orders that do not touch on the merits. The court of appeal dismissed Hamalyan’s actions twice and he and his wife were evicted from their home capriciously and unjustly. His wife, who was an old woman, died of oppression while she was estranged from her home. Her fate resembles that of Udette Menassah who was equally old and was also coerced out of her home by the police by order of Solidere’s chairman in order to allow the company’s heavy equipment to bulldoze her home out of existence, and she died soon thereafter.

Several judges, high and low ranking, allowed themselves to judge me at a time when they lacked the essential prerequisites of neutrality and integrity because they had earlier openly turned themselves into my personal adversaries, and despite their duty to step down under Articles 120 and 121 CCP or because they are banned from acting against me by the last section of Article 751 CCP. This is totally wrong and unacceptable. Many cassation judges who signed the decisions of the General panel of the Court of Cassation against me, including Judge Ralph Riashi who authored the majority of those decisions, are candidates to important posts in international courts or courts with an international character. Could this take place under the black cloud of the above mentioned decisions against me? How is it possible that someone who denies me justice can dispense it to others locally or internationally? For it is not sufficient that a judicial act take the form of a judgment, that is, to take the color of the law. It should also pass the test of legality by serving justice with full integrity and uphold the law and human rights and most notably the right of defense.

Finally, I wish to pose two questions and answer the same.

First Question: Is there in existence an independent constitutional judicial power in accordance with the Lebanese Constitution? The answer is definitely in the negative and, regrettably, there is a rare national consensus as to the validity of this answer.

Second Question: Who is responsible for all the above? The answer without hesitation is the Lebanese State because all that took place was done by high or low ranking government employees in administrative and judicial authorities under veiled or overt instructions by political bosses that exercise executive power. If those had wished something different it would have happened like magic, a fact supported by strong evidence which is publicly known. I am prepared to bring to your attention this evidence on request.