Libyan Criminal Justice System (LCJS)
Evidence Gathering
JUMP To:
- Judicial Officers and The Duties Thereof
| Legislation | National Provision | International Standard | Right | Challenge | Good Practice |
|---|---|---|---|---|---|
1953 Code of Criminal Procedure | Article (11) Judicial officers shall study crimes and their perpetrators and collect evidence required for the investigation and prosecution thereof. | Society’s right to establish the rules of justice and protect national security in accordance with the provisions of the International Covenant on Civil and Political Rights Universal Declaration of Human RightsArticle (3) Everyone has the right to life, liberty and security of person. | Society’s right to establish the rules of justice | Ongoing qualification and training to improve judicial officer capabilities | The law sets out the conditions for granting the capacity of a judicial officer The law criminalises the failure to perform their role, [Article] (237) Negligence or Failure to Perform Duties Any public employee who unlawfully refrains from, neglects, or delays performing one of the activities of their position shall be punishable with imprisonment for a period not to exceed one year and a fine not to exceed two hundred Libyan pounds. |
1953 Code of Criminal Procedure | Article (12) Judicial officers shall be affiliated to the Public Prosecution and subject to its supervision with regard to the activities of their position. | The right to respect for civil rights | Establish the pillars of justice | Affiliation is a formality due to the Prosecution’s failure to perform its oversight role. In exceptional circumstances, the capacity of judicial officer is granted to unqualified individuals. | Administrative subordination of the Ministry of Interior with regard to members of the police who are judicial officers Article (129) of the Criminal Investigator Guide asserts the power of the Public Prosecution to access evidence-gathering reports before they are officially referred thereto and to give directions with regard to the required procedures. The Public Prosecution is authorised to visit police headquarters and examine reports and complaints by using the inspection evidence prepared by the Prosecutor-General according to Article (130) of said Guide. The Public Prosecution may hold periodic meeting to discuss the problems they face and issue warnings on violations that impact the course of criminal cases under Article (132) of the Guide. The Prosecution may oblige Judicial Police units to submit monthly statistics on the reports they have and the procedures undertaken with regard thereto and verify such in accordance with Article (133) of the Criminal Investigator Guide. |
1953 Code of Criminal Procedure | Article (13) 1. The following shall, each within their jurisdiction, be considered judicial officers: a. Members of the Ministry of Interior. b. Chairmen and members of cleansing committees established in accordance with the law. c. Members of local security. d. Officers, non-commissioned officers, and members of the Armed People tasked with border control. e. Officers and non-commissioned officers holding the rank of sergeant and higher of the police, customs guard, municipal guard, and agricultural inspection. f. Personnel who are granted the competences of judicial officers by law. The powers of judicial officers may be granted to individuals named under a decree by the Cabinet based on a proposal from the competent ministries. | Society’s right to present offenders to justice Society’s right to security and peace of mind | Proliferation of judicial officers holding subject-matter jurisdiction The authority of judicial officers is restricted to persons holding general jurisdiction as relates to petty offences and crimes committed by public employees. | Legislative delegation of executive power by naming persons judicial officers holding subject-matter jurisdiction. For example, authorising the governor of the Central Bank of Libya to name employees to apprehend crimes and petty offences committed by banks including money laundering, Law No. (5) of 2005 on banks | |
1953 Code of Criminal Procedure Law No. (10) of 1992 on security and police | Article (14) Criminal Procedure Judicial officers must accept the notices and complaints they receive on crimes and send them immediately to the Public Prosecution. Article (4) Law No. (10) The competent bodies shall undertake prompt search and inquiry activities and the necessary legal procedures regarding such reports or the information contained therein. | The right to exercise civil rights | The right to file a complaint without delay | The term “prompt” is broad | The Public Prosecution may use the inspection evidence prepared by the general office to monitor the adherence of judicial officers to undertaking procedures with regard to the reports, complaints and crimes occurring within their area of jurisdiction. With regard to the Inspector Guide, the Public Prosecution is required to go to the location of misdemeanours that are also significant and serious and to inform their superiors thereof immediately. The Public Prosecution prepared a notification form approved by the Prosecutor-General, Article (137) of the Guide |
1953 Code of Criminal Procedure Law No. (10) of 1990 on security and police | Article (15) Any person aware of a crime, for which the Public Prosecution may file a case without a complaint or request […] Article (5) Law on police Information relating to the identity of persons who report incidents in accordance with this Law shall be deemed confidential and the disclosure thereof shall be prohibited. | Society’s right to security | Society’s right to security and peace of mind The right to privacy | In exceptional and ordinary circumstances, there are no guarantees in the Criminal Procedure Code to protect persons filing reports Social relationships limit the adherence to confidentiality | Article (2) of Law No. (10) of 1990 on security and police Every citizen, man or woman shall report, in any way that enables them to perform their security role, any facts or information that may violate public security or endanger lives, dignities, or property. Anyone who discloses secrets is punished under Article (236) of the Penal Code |
1953 Code of Criminal Procedure | Article (16) Duties of Public Employees and the Like with Regard to Notifications Any public employee or person assigned to carry out a public service who, while or due to the performance of their job, learns of a crime for which the Public Prosecution may file a case without a complaint or request, must immediately report it to the Public Prosecution or nearest judicial officer. | Society’s right to security and peace of mind | Failure of public employees to make reports thwarts justice and violates security | Emphasis on medical staff being bound to make reports in Law No. (17) of 1986 on medical liability Criminalisation under the Penal Code Article (258), Failure to Report Information If, during or because of the exercise of their duties, a public official becomes aware of the occurrence of an offence, in whose regard it is necessary to initiate proceedings without waiting for a complaint from the injured party, or neglects or delays to inform the competent authorities, they shall be punishable with imprisonment for a period not exceeding one year or a fine ranging from ten pounds to fifty pounds. The penalty shall be imprisonment not exceeding two years if the act pertains to a felony the penalty for which is death, life imprisonment, or imprisonment with a maximum duration of not less than ten years. The penalty shall be imprisonment if the act is committed by a judicial officer, regardless of how such officer learns of the offence. The same penalty shall apply to judicial officers or other officials responsible for the receipt of complaints or reports if they neglect or delay in referring the matter to the competent authority. | |
1953 Code of Criminal Procedure | Article (19) While collecting evidence, judicial officers may hear the statements of persons who have information on criminal incidents and perpetrators thereof and may ask the accused about them. They may seek the assistance of physicians and other professionals and request their opinion orally or in writing. They may not make witnesses or experts take an oath unless it is feared that it will not be possible later to hear the testimony under oath. | Presumption of innocence | Society’s right to justice | Failure to leave the preliminary investigation to judicial officers, this good practice is purely theoretical | The procedural necessity is limited by Supreme Court judicial precedents Article (138) of the Criminal Investigator Guide asserts members of the Public Prosecution moving on their own initiative to investigate incidents occurring at police stations, correctional institutions, and other judicial bodies. |
- IN FLAGRANTE DELICTO
| Legislation | National Provision | International Standard | Right | Challenge | Good Practice |
|---|---|---|---|---|---|
1953 Code of Criminal Procedure | Article (20) A crime shall be in flagrante delicto when it is apprehended while being committed or shortly after it is committed. A crime shall be deemed in flagrante delicto if the victim follows the perpetrator or the public follows them shouting upon its occurrence, if the perpetrator is found shortly after the occurrence carrying instruments, weapons, belongings, papers, or other items that evidence they are the perpetrator or a partner, or if effects or signs indicating the same are found at this time. | Society’s right to security and peace of mind | Legal in flagrante delicto allows judicial officers to conclude a case of in flagrante delicto from the material circumstances of the incident, which includes cases of contextual in flagrante delicto. | In flagrante delicto is a material condition tied to the crime, not to the person who committed it, whose conditions have been exclusively defined and it is not confirmed unless the legitimacy of the actions of the person undertaking them is established | |
1953 Code of Criminal Procedure | Article (21) Once informed about a crime committed in flagrante delicto, the Public Prosecution shall immediately proceed to the crime scene. | Society’s right to justice | The term “prompt” is broad | Proceeding immediately to the scene once the Public Prosecution is notified or learns of an in flagrante delicto crime or a significant and serious crime to conduct the necessary investigation, Article (136) of the Criminal Investigator Guide | |
1953 Code of Criminal Procedure | Article (22) When proceeding to the scene of an in flagrante delicto crime, a judicial officer may bar the people present from leaving or moving away from the scene until the report is drawn up. | The right to prompt justice | Failure to specify the time period for which persons present may be barred from leaving Restriction of freedom | Protecting the crime scene from being tampered with Protecting evidence |
- ARREST OF ACCUSED PERSONS AND PRISONERS AND PRISONER COMPLAINTS
| Legislation | National Provision | International Standard | Right | Challenge | Good Practice |
|---|---|---|---|---|---|
1953 Code of Criminal Procedure | Article (24) Judicial officers may order the arrest of an accused present at the scene if there is sufficient evidence to charge them, in the following circumstances: 1. For felonies 2. In cases of in flagrante delicto, if the crime is punishable under the law with imprisonment for a period of more than three months. 3. If the crime is a misdemeanour punishable with imprisonment and the accused had been placed under police surveillance, a notice had been issued deeming them homeless or suspected thereof, or if they do not have a known fixed place of residence in Libya. 4. In cases of theft, fraud, aggravated assault, resisting a member of the public authorities by use of force or violence, procuring, violation of morals, and narcotic substances. | Universal Declaration of Human Rights Article (3) Everyone has the right to life, liberty and security of person. Article (9) No one shall be subjected to arbitrary arrest, detention or exile. International Covenant on Civil and Political Rights Article (9) 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. African Charter on Human and Peoples’ Rights Article (6) Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. | The right to freedom | Libyan legislation expands the use of the term “accused” which should only be used after charges have been filed by the Public Prosecution Authorisation of a police officer to arrest persons due to mere suspicions, namely those referred to in “and the accused had been placed under police surveillance, a notice had been issued deeming them homeless or suspected thereof, or if they do not have a known fixed place of residence in Libya.” Despite the restrictions set out in Article (36) Procedure, the violation of the sanctity of the home [as the place of human privacy] requires cancelling this provision and not giving judicial officers the authority to perform the procedure except pursuant to a judicial permit and under the supervision of the Public Prosecution | Article (434), Unjustified Restriction of Personal Liberty Any public official entrusted with the administration of a prison or a place for the execution of preventive measures who accepts therein a person without an order from the competent authorities, or refuses to obey the order of that authority to release such person, or who unlawfully extends the duration of the execution of a penalty or preventive measure, shall be punishable with imprisonment and a fine not exceeding fifty pounds. |
1953 Code of Criminal Procedure Law No. (10) of 1992 on security and police | Article (25) If the accused is not present in the cases set out in the preceding Article, a judicial officer may issue an order for their arrest. This shall be mentioned in the report. Bailiffs or public authority officers shall execute the arrest order. | Universal Declaration of Human Rights Article (29) (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. | The right to personal freedom | Article (25) Procedures deals with the possibility of arresting an accused if they are not present and tasked judicial officers with issuing an order for their arrest, but does not authorise judicial officers | The use of force is restricted to the cases set out in Article (13) of Law No. (10). Members of the police authority may use force without the use of weapons to the extent necessary to perform their duties, provided such is the sole means for such. The use of weapons shall be limited to the following cases: 1. The arrest of any person convicted of a felony or sentenced to imprisonment for a period of more than three months, if they resist or attempt to escape. 2. Arrest of any person accused of felony or caught in flagrante delicto in a misdemeanour where arrest is permissible if such person resists or attempts to escape. 3. Arrest of any accused person for whom an arrest warrant has been issued, if such person resists or attempts to escape. 4. Arrest of any prisoner who attempts to escape and when guarding prisoners if they resist, under the rules and conditions set out in the Law on prisons. 5. Dispersal of a gathering of five or more persons if such gathering is a danger to public security. 6. The authorities that may issue an order to fire, the means that can be used in all cases, and the manner of sending the warning of opening fire shall be governed by a decree from the General People’s Committee for Justice. A decree from the Ministry of Justice shall govern the grounds and rules related to such. Cases of self-defence and resisting armed assault. |
1953 Code of Criminal Procedure | Article (26) Judicial officers must immediately hear the statements of an accused person placed under arrest. If nothing proving the innocence of said accused is found, the officer shall refer them to the competent Public Prosecution within forty-eight hours. The Public Prosecution shall question them within twenty-four hours, then issue an order for their detention or release. However, for persons accused of one of the crimes set out in Part (1) of Book (2) of the Penal Code, the accused shall be sent to the competent Public Prosecution within seven days from the date of arrest. | Right to a speedy and fair trial The right to freedom | The term “prompt” is broad Arrest is extended from 48 hours to 7 days in Book (2), Felonies and Misdemeanours, against the Public Interest in the Penal Code related to crimes of domestic and foreign state security. It is also extended in the Drug Law amended by Law No. (87) of 2003 to seven days. And it is amended under Law No. (3) of 2013 amending provisions of the Code of Criminal Procedure to give judicial officers the power to hold an accused for seven days from the date of their arrest, Article (187)(b) (bis) | None | |
1953 Code of Criminal Procedure | Article (27) Anyone who witnesses a perpetrator committing a misdemeanour or a felony punishable by provisional detention in flagrante delicto may hand such person over to the nearest public authority officers without need for an arrest order. | Society’s right to justice | Reaction of the perpetrator and the public’s inability to deal with them | Arrest by the public or someone without the capacity of a judicial officer of a person caught in flagrante delicto is a guarantee of society’s right to justice | |
1953 Code of Criminal Procedure | Article (28) For in flagrante delicto misdemeanours punishable with imprisonment, public authority officers may bring and hand over the accused to the nearest judicial officer. | Society’s right to justice | Arrest by the public or someone without the capacity of a judicial officer of a person caught in flagrante delicto is a guarantee of society’s right to justice | ||
1953 Code of Criminal Procedure | Article (29) If filing a case for a crime caught in flagrante delicto depends upon a complaint, the accused may not be arrested unless the complaint is stated by a person who may file such complaint. In this case, the complaint may be filed by public authority officers present. | Respect for the right to personal freedom | Lack of awareness of judicial officers of the existence of the procedural restriction | Respect for personal rights as the most deserving of protection Article (434), Unjustified Restriction of Personal Liberty Any public official entrusted with the administration of a prison or a place for the execution of preventive measures who accepts therein a person without an order […] | |
1953 Code of Criminal Procedure | Article (30) No person may be arrested or detained without an order from the legally competent authority. | International Convention for the Protection of All Persons from Enforced Disappearance Article (1) No one shall be subjected to enforced disappearance. Article (17) 1. No one shall be held in secret detention. 2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation: a. Establish the conditions under which orders of deprivation of liberty may be given; b. Indicate those authorities authorized to order the deprivation of liberty; c. Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty; Universal Declaration of Human Rights Article (9) No one shall be subjected to arbitrary arrest, detention or exile. International Covenant on Civil and Political Rights Article (9) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. | The right to freedom | Authorisation of judicial officers to make arrests without permission. Expansion of the arrest periods as referred to previously with reference to setting out the limitations of Article (26) Procedures is considered a fundamental challenge to the legal system. | Criminalised under Article (433) Unlawful Arrest Any public official who arrests a person in transgression of the limits of their authority shall be punishable with imprisonment. |
- ENTERING AND SEARCHING HOUSES AND SEARCHING PERSONS
| Legislation | National Provision | International Standard | Right | Challenge | Good Practice |
|---|---|---|---|---|---|
1953 Code of Criminal Procedure | Article (34) Authority personnel may not enter any inhabited place except in the cases set out under the law, or if help is requested from inside, or in the event of fire, drowning, or the like. | Universal Declaration of Human Rights Article (12) No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. | The right to privacy The right to confidentiality | The exceptions in which judicial officers are given the authority to search homes of certain categories is considered a main challenge before the legislative authority | Guarantee of the respect of the human right to confidentiality and privacy. Criminalised under Article (437) Violation of the Sanctity of the Home by a Public Official Any public official who enters the residence of an individual without consent or remains therein without justification, based on their office, with the exception of the circumstances set out under law or without observing the rules provided, shall be punishable with imprisonment and a fine not more than twenty pounds. |
1953 Code of Criminal Procedure | Article (35) In the cases where it is legally permissible to arrest the accused, the judicial officer may search them. If the accused is a female, the search must be conducted by a female assigned by a judicial officer. | The right to confidentiality The right to personal freedom | Search of persons and their movables is an effect of arrest Invalidity of search determined in the interest of the accused | Article (432) Penal Code, Inspection of Persons “Any public employee who inspects a person in transgression of the limits of their authority shall be punishable with imprisonment.” Female searches part of the public order | |
1953 Code of Criminal Procedure | Article (36) If an accused is caught committing a misdemeanour or a felony in flagrante delicto, the judicial officer may search the accused’s house and seize items and documents that serve to uncover the truth, if there are strong signs that such items and documents are located in the house. | The sanctity of homes The right to confidentiality Universal Declaration of Human RightsArticle (12) No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. | Society’s right to justice | Failure to adhere to the objective of searches | |
1953 Code of Criminal Procedure | Article (37) Even in if an offence is not in flagrante delicto, judicial officers may search the houses of individuals under police surveillance and suspects, if there are grounds to believe that they have committed a felony or misdemeanour. […] For the same reasons, homeless individuals and persons without a fixed known domicile in Libya may be searched. | The right to personal freedom | Violation of the principle that a person is innocent until proven guilty | None | |
1953 Code of Criminal Procedure | Article (38) If strong circumstantial evidence against the accused or a person present in the accused’s house is found while searching the house of the accused indicating that something useful to uncovering the truth is hidden, the judicial officer may search it. | The right to confidentiality The sanctity of private life | Search of persons other than the accused due to the existence of circumstantial evidence as assessed by a judicial officer and subject to the discretion of the trial judge if a motion to invalidate the procedure if made | ||
1953 Code of Criminal Procedure | Article (39) Searches may only be conducted to look for items related to a crime at the evidence-gathering stage or one under investigation. […] However, if items whose possession is an offence […] incidentally appear during the search, the judicial officer may seize them. | Respect for the sanctity of private life | Failure to adhere to the objective of searches Determination of relative invalidity | Adherence to the objective of searches | |
1953 Code of Criminal Procedure | Article (40) Searches shall be conducted in the presence of the accused or representative thereof whenever possible and must be in the presence of two witnesses. The two witnesses shall, as much as possible, be adult relatives of the accused, individuals residing in the house with the accused, or neighbours. This shall be documented in the record. | Sanctity of homes | “Whenever possible” is a vague expression allowing for the choice rather than the obligation of the judicial officer | Presence of witnesses is a fundamental guarantee | |
1953 Code of Criminal Procedure | Article (42) Judicial officers may place seals on locations with traces or items useful for uncovering the truth and may assign a guard for them. | Preservation of evidence | Lack of qualification and training of judicial officers on the practices that must be followed when seizing items Lack of equipment enabling them to preserve items in the best manner | ||
1953 Code of Criminal Procedure | Article (43) Judicial officers may seize documents, weapons, instruments, and any object that may have been used to commit the crime, resulted from the commission thereof, or against which the crime was committed, as well as anything useful in uncovering the truth. Such items shall be shown to the accused who shall be asked for comments thereon. | Collection of evidence to establish the pillars of justice | Lack of response and interaction with judicial officers on the part of the accused | None | |
1953 Code of Criminal Procedure | Article (44) Items and documents seized shall be put in sealed evidence pouches, which shall be tied whenever possible and sealed. A strip in the seal shall show the date of the record drawn up on the seizure of such items and indicate the matter for which such items were seized. | Establishing the pillars of justice through the preservation of evidence | “And tied whenever possible” is an expression that does not achieve the desired protection of evidence | None | |
1953 Code of Criminal Procedure | Article (45) Seals placed in accordance with Articles (42) and (44) may only be removed in the presence of the accused or the accused’s representative and the person from whom such items were seized or after summoning them for such. | Establishing the pillars of justice through the preservation of evidence | Failure to comply with the appearance (or presence) of the accused or the accused’s representative | None | |
1953 Code of Criminal Procedure | Article (46) Anyone who becomes aware, due to a search, of information about the items and documents seized and discloses the same to an unrelated third party or takes advantage of them in any way, shall be subject to the penalties provided in Article (236) of the Penal Code. | Establishing the pillars of justice through the preservation of evidence | Lack of awareness of the penal laws | Protection of the confidentiality of investigations at all stages | |
1953 Code of Criminal Procedure | Article (47) If a person who was in possession of documents seized needs them urgently, they shall be provided with a copy thereof certified by the judicial officer. | Establishing the pillars of justice through the preservation of evidence | Protection of the rights of good-intentioned persons | ||
1953 Code of Criminal Procedure | Article (48) Judicial officers may request the direct assistance of the military force for the purpose of performing their duties. | Establishing the pillars of justice through the preservation of evidence | Use of military force in non-military matters | Limitation of the use of military force in accordance with the police and security law. The use of force is restricted to the cases set out in Article (13) of Law No. (10). Members of the police authority may use force without the use of weapons to the extent necessary to perform their duties, provided such is the sole means for such. The use of weapons shall be limited to the following cases: 1. The arrest of any person convicted of a felony or sentenced to imprisonment for a period of more than three months, if they resist or attempt to escape. 2. Arrest of any person accused of felony or caught in flagrante delicto in a misdemeanour where arrest is permissible if such person resists or attempts to escape. 3. Arrest of any accused person for whom an arrest warrant has been issued, if such person resists or attempts to escape. 4. Arrest of any prisoner who attempts to escape and when guarding prisoners if they resist, under the rules and conditions set out in the Law on prisons. 5. Dispersal of a gathering of five or more persons if such gathering is a danger to public security. 6. The authorities that may issue an order to fire, the means that can be used in all cases, and the manner of sending the warning of opening fire shall be governed by a decree from the General People’s Committee for Justice. A decree from the Ministry of Justice shall govern the grounds and rules related to such. Cases of self-defence and resisting armed assault. |
