Study on the protection of lawyers against undue interference in Lebanon

1. Taking into consideration the guarantees for the functioning of lawyers, contained in principles 16-22 of the Basic Principles on the Role of Lawyers, please describe the constitutional, legal, administrative and policy measures adopted in your country to enable lawyers to exercise their professional activities in favour of their clients in a free and independent manner.

The legal framework supporting the work of lawyers in Lebanon is primarily contained in the Law Organizing the Legal Profession No. 8 of 1970 (hereinafter: “the Law”). The Law features a number of provisions embodying the basic guarantees for the functioning of lawyers but falls short in some respects:

Articles 61 and 65 reserve the right to appear and plead before courts to lawyers authorised by their clients or by the President of the Bar. This right relates to principle 19, though the Law does not explicitly prohibit relevant judicial or administrative bodies from denying qualified lawyers the right to appear before them.

The Law exempts lawyers from certain forms of legal liability arising from statements made in the course of their professional duties. Article 74 shields lawyers from liability for defamation or slander for statements made in defence of a client. However, no similar provision applies to legal undertakings outside of the scope of defence work. Article 75 similarly protects lawyers from detention for defamation based on statements made in the course of their professional duties. It falls short, however, of granting full civil and penal immunity for good-faith statements, as mandated by principle 20.

The Law positions the Bar as the protector of lawyers from other forms of harassment or sanction. Under Article 77, a lawyer’s office may not be searched without notice to the Bar and the opportunity for a representative thereof to monitor the action. Nor, except for in flagrante delicto cases, may a lawyer be criminally interrogated without similar notice and opportunity to attend. Article 79 further immunises lawyers from criminal proceedings arising from their professional practice without the prior authorisation of the Bar. These provisions together represent a relatively robust fulfilment of some of the guarantees in principle 16.

While the Law does not expressly provide for the security of lawyers under threat, as set forth in principle 17, according to Article 76 any offense against them due to their work is penalised as though it were committed against a judge.

Rather than a recognition of the confidentiality of attorney-client communications on the part of the state, as per principle 22, the Law in Article 92 (and article 4 of the Bar’s Code of Ethics) merely affirms the lawyer’s duty to protect confidentiality.

The Law does not ensure that lawyers are not identified with their clients (principle 18) nor that they are granted sufficient access to information in the possession of the state (principle 21). A separate law, the Access to Information Law No. 28 of 2017, creates a right of access to information held by state administrative bodies, but not necessarily to exculpatory evidence in the possession of the prosecution.

2. What entities and/or mechanisms are in place to prevent and/or punish interferences with the free and independent exercise of the legal profession? Please briefly describe them and specify whether they are independent bodies or if they belong to the administrative structure of the State.

2.1 Prevention of interference

As discussed above, Law No. 8 of 1970 with its amendments contains certain provisions pertaining to the prevention of undue interference.[1] Its Article 4 stipulates that “there are two bar associations for lawyers in Lebanon, one in Beirut, one in Tripoli.” This law applies to both associations. They were respectably established in 1919 and 1921. 

Besides both bar association, it is worth recalling that Lebanon is equipped with a National Human Rights Institution. On 27 October 2016, Lebanon adopted Law No. 62 establishing the National Human Rights Commission (NHRC). However, the appointment of its members and in the allocation of a budget has been delayed. Although Law No. 62 does not mention specifically the protection of lawyers, its mandate includes activities that are relevant to the free and independent exercise of the legal profession. Article 15 states that NHRC is mandated to monitor the human rights situation in the country by reviewing laws, decrees, and administrative decisions and by investigating complaints of human rights violations and issuing periodic reports of its findings. Lawyers subjected to undue interference could for instance file a complaint before the  NHRC, which can in turn participate in “negotiation and mediation and litigation.” With regard to the reviewing of laws, the NHRC could take a position on laws that negatively impact the legal profession. In practice, the NHRC is not able to fully fulfil its mandate due to limited financial capacity.

That being said, the NHRC has signed a memorandum of cooperation with the Tripoli Bar Association, which include the cooperation as part of projects related to human rights, organising training course on human rights and the promotion of the rule of law as well as seminars on issues of common interest between the two bodies.[2]

2.2 Independence of Bar Associations

Law No. 8 of 1970 contains several provisions aimed at preventing potential conflicts of interest between members of the legal profession and the legislative and executive authorities.

For instance, Article 15 states that no lawyer shall occupy public office or act as speaker of parliament or Prime Minister. Article 17 specifies that a lawyer who is a member of parliament shall not accept a case in which they have to represent the State or one of its public institutions.

Lawyers are indeed permitted to sit in parliament, as provided by Article 15. In fact, both Bar Associations count several MPs within their ranks.

In addition, key positions within both Bar Associations, including the presidencies, are commonly filled by lawyers affiliated with political parties. Following the latest election held on 21 November 2021, Mr Nader Gaspar was elected as the president of the Beirut Bar Association after receiving 1’530 votes from members of the association. In the run-up to the vote, Mr Gaspar enjoyed the support of political parties such as the Free Patriotic Current, the Future Movement and the Amal Movement. This involvement has been reported by the media.[3] His election was seen as a victory of incumbent parties over independent candidates.

As for the Tripoli Bar association, Ms Marie Therese El Kawwal was elected as president on 21 November 2021 after receiving the support of the Future Movement, the Dignity Movement, the Islamic Group, the Lebanese People’s Congress, Hezbollah’s unit composed of liberal professions and the Azm Movement.[4]

3. Please indicate if there are any legislative, administrative, or institutional barriers that have hindered the work of lawyers and the exercise of the legal profession in your country, and describe them.

Although Law No. 8 of 1970 grants lawyers certain immunities while practicing their profession, in practice, there are some important barriers that negatively impact their realisation. Some of these barriers are enshrined in Lebanese law, which contains a number of provisions that negatively impact the legal profession.

Article 21 (a) of the Lebanese Military Judicial Law stipulates that “the defence of persons brought before the military justice, if they have not chosen a lawyer to defend them, shall be entrusted to a lawyer or an officer, preferably from among those who have a degree in law if the service allows it.” This means that in practice, the military judge in a military court may ask a military officer who does not have a law degree to represent the defendant.[5] Most military officers acting as lawyers in fact do not hold a law degree.

Article 59 (b) of the Lebanese Military Judicial Law states that “the president of the military court may prevent the lawyer from entering the military court for a maximum period of three months if he/ she commits a serious misconduct before the trial or during the hearings.” This implies that the president of the military court has the power to prevent a lawyer from entering the military court for “disciplinary reasons”.[6] The law does not provide a list of acts that may constitute a serious misconduct. This motive was used against lawyers Antoine Nehme, Samar Halabi and Hani Al Ahmadyia.

During the trial of Ahmad Al Assir, a Sunni cleric accused of killing Lebanese soldiers in the southern city of Sidon in 2013, before Lebanon's Military Court, it has been reported that the head of the court ordered the expulsion of the lawyers from the courtroom and prevented them from entering the next session. A military lawyer was instead appointed to attend the last session, when the verdict was pronounced.[7]

The Military Judicial Law has been criticised for not respecting fair trial guarantees enshrined in article 14 ICCPR. The International Commission of Jurists has found that the provisions of the Code of Military Justice, on their face, significantly curtail the rights of the defence in a manner that is inconsistent with international standards in several respects. In particular, aspects of the Code may not accord with the right to protection from arbitrary detention, the right to adequate time and facilities, the right to a public hearing, the right to reasoned decision, and the right to appeal a conviction and sentence before an independent and impartial tribunal.[8] The Human Rights Committee has expressed concern about the procedures followed by these military courts, as well as the lack of supervision of the military courts’ procedures and verdicts by the ordinary courts.[9] Finally, several Brigadier Generals, including the incumbent, have presided the military court without having a background in law.

Many civil society actors, including lawyers, have called on the authorities to amend the law in order to limit the military court’s jurisdiction to members of the armed forces.[10]

Turning to the question of institutional barriers, the visits of lawyers to meet their clients in military detention centres can be challenging in practice. According to some lawyers visiting Rihanyie military police detention centre, a facility under the jurisdiction of the Lebanese Ministry of Defence, they have to wait more than an hour and a half before they can meet their clients.[11] Interviews with clients are usually no longer than five minutes. 

The prisons, on the other hand, are under the authority of the Ministry of Interior. Before they are able to meet with their clients in prison, lawyers have to go through searches that have been described, in some instances, as humiliating. In Roumieh prison, for example, a lawyer reported being forced to remove his shoes and stand in filth before going through a metal detector. Despite being separated from their clients by a glass barrier while inside the prison, lawyers are also restricted from entering with basic materials or accessories, such as a watch or certain types of pens. Such incident has been reported in Roumieh prison.[12]

4. Please describe the role of the national bar association(s) in protecting lawyers and the free exercise of the legal profession. Is the bar association de jure and de facto independent from the State?

Please note that this question was partially addressed in section 2 of this report.

Article 77 of Law No. 8 of 1970 states that “any ruling of a judge that provides searching a lawyer’s office […] shall be executed only after a period of 24 hours at least has elapsed as of depositing a copy of the ruling in the offices of the association to which the lawyer is affiliated with.”

In addition, as previously mentioned, Article 79 (a) states that except in the case of flagrante delicto, no lawyer shall be interrogated about a crime attributed to them unless the president of the bar association is notified. He [the president] may attend himself the cross examination or appoint a member of the council. The following paragraph provides that no proceedings may be instituted against a lawyer for an act arising out of or in connection with the practice of his profession, except by a decision of the Bar Council.

Both bar associations in Beirut and Tripoli are considered de jure independent from the State. However, in practice the political affiliation of its members hinders their independence. As since most of the members who are registered in those two bar associations have political backgrounds, their affiliations to political parties might affect their decision in matters that are related to the bar associations, especially if they are members of association’s board or heading one of the bar associations. Furthermore, news outlets have reported on sectarian capture of the bar associations and the pervasive influence of patronage networks within them.[13]

5. Please provide detailed information on the number of lawyers that have been subject to criminal, administrative or disciplinary proceedings in the last five years for alleged violations of standards of professional conduct. How many of them were found guilty? How many of them were ultimately disbarred?

Articles 102-107 of Law No. 8-70 sets out the procedures for referring a lawyer to the disciplinary board. Article 102 states that “a lawyer shall be brought before the Disciplinary council only on the basis of a decision taken ex officio by the President or following a complaint or an information submitted to him.” Furthermore, article 99 allows for the imposition of disciplinary sanctions against any lawyer who “behaves in a manner that dishonours the profession.” This is a very vague and subjective standard that could be subject to misuse.

Over the past five years, a number of lawyers have been subjected to criminal, administrative or disciplinary proceedings. Between November 2019 and late October 2021, 30 lawyers registered with the Tripoli Bar Association were referred to the disciplinary council. Of those, 23 have their cases pending before the appellate court. The appeal proceedings are long and can take years. In terms of disbarring, 13 lawyers were removed from the list of registered lawyers as a result of decisions issued by the Bar Association of Tripoli due to their violations of the bylaws of the Bar Association.[14]

As for the Beirut Bar Association, there is no published list of lawyers who have been subjected to such proceedings. However, media and human rights organisations have commented on several individual decisions pertaining to both Bar Associations:

On 15 April 2016, the Beirut Bar Association decided to lift Mr Nabil Halabi’s immunity, after he published some information about corruption implicating the former Minister of Interior.[15] On 30 May 2016, members of the Internal Security Forces stormed his home and arrested him. Mr Halabi was released on 1 June 2016 after he was forced to sign a pledge never to publish similar statements critical of the Minister of Interior and his staff, to retract his allegations of complicity between the Ministry, its staff and a sex trafficking ring and to withdraw all his Facebook posts.[16] 

In June 2017, the Lebanese Army raided two Syrian refugee camps in Arsal and arrested 356 refugees. Later in July, some of those refugees died in custody. Ms Diala Chehade is a lawyer who has been requested by several families of victims to inquire about the reason for their death in custody. During the forensic examination of their bodies, she was subjected to reprisals and threats by members of the Lebanese Military Intelligence.[17] She later published a Facebook post explaining the threats and intimidation she had received from members of the military intelligence. She was subsequently questioned by the Beirut Bar Association and was asked by the Bar association not to speak to the media.[18]

On 28 September 2021, the military court sent a letter to the Tripoli Bar Association requesting the lifting of the immunity of Mr Mohammad Sablouh, a human rights lawyer. This request is just one more example of harassment against his work advocating for Syrian refugees and raising awareness about the issue of torture in the country.[19]

On 17 November 2021, the Tripoli Bar Association decided to remove the name of lawyer Tarek Chindab from the record of the registered lawyers,[20] after he allegedly violated the Law Regulating the Legal Profession and other internal rules of the Tripoli Bar association.

On 18 November 2021, after receiving numerous “behavioural complaints” addressed to the Bar Association, the Disciplinary Council of the Beirut Bar Association decided to remove the name of lawyer Rami Olaik from the register of registered lawyers. In June 2021, the Beirut Bar Association has referred to the public prosecution its decision to allow the criminal prosecution of lawyer Rami Ollaik on charges of defaming Public Prosecutor Judge Ghassan Oueidat and the Lebanese judiciary.[21] Rami Olaik is also a political activist. He founded the anticorruption alliance United for Lebanon.[22]

6. Please provide information on any case where lawyers in your country have been subject to intimidation, hindrance, harassment or improper interference, whether from State authorities or non-State actors, for action taken in accordance with their recognized professional duties. Please also describe the measures that State authorities have taken to investigate and bring perpetrators to justice.

As previously mentioned, Rami Olaik was disbarred in November 2021. He was also charged with criminal defamation for allegedly criticising the Higher Judicial Council and the state prosecutor. In a statement issued in October 2020, the American Bar Association (ABA) named this case as one of concern.[23]

In July 2020, Wassef Harakeh, a lawyer known for his work defending anti-corruption protesters, was reportedly intercepted in Beirut and severely beaten by a group of individuals in what appeared to be an assassination attempt. On 6 December 2019, he filed a complaint, with a group of lawyers, to the Public Prosecutor Ghassan Oweidat, against all public servants (ministers, public employees, mayors, contractors, etc.) whose negligence and violation of laws cause the floods all over Lebanon on 4-5 December 2019. In 2020, politicians Wael Abu Faour sued Wassef El Harakeh, after he accused Abou Faour of smuggling cancer medicine to As Suwayda, Syria during his tenure as Minister of Public Health, which caused shortage in the medicaments for the Lebanese citizens. [24]

In November 2020, Afram Halabi was beaten in broad daylight by members of the Internal Security Forces (ISF), allegedly for violating Beirut’ s lockdown order.[25] He was then visiting a client at the Military Police barracks in Ramlet Al Baida. During the incident, it has been reported that the officers insulted the Beirut Bar Association and its president Melhem Khalaf.[26]  

In February 2021, Elsherif Sleiman, an anti-corruption activist and a lawyer, was summoned to appear before the public prosecutor for questioning after posting a publication criticising the Lebanese authorities on his Facebook page.[27]

State officials have worked to impede the work of Mohammad Sablouh by denying him access to his clients, publicly denigrating him, and seeking to prosecute him on false charges. On 14 April 2021, the caretaker Minister of Justice convened a meeting with heads of security agencies and members of the Beirut and Tripoli bar associations.[28] Mr Mohammad Sablouh attended the meeting as rapporteur of the Prisons’ Committee of the Tripoli Bar Association. During the meeting, Sablouh mentioned that he had provided Amnesty International with information on human rights violations, including for their latest report,[29] and that he had done so after exhausting all domestic avenues, to no avail. At the end of the meeting, the director of the General Security, Abbas Ibrahim, informed Sablouh that he “should not communicate with international NGOs” and that doing so meant communicating with the “Zionist entity” and added that he was accused of committing “high treason”. A few days later, Sablouh met the Adviser to the caretaker Minister of Interior and Municipalities for Prison Affairs, Brigadier General Fares Fares, and shared with him what Ibrahim had told him during the meeting. General Fares responded that it was “the least he could say” since following the Amnesty International report, the British ambassador in Lebanon met with Ibrahim and said his security agency had to put an end to human rights violations, otherwise they would stop funding them. He added that the Lebanese, including the security forces, were in a bad economic situation and that Sablouh was “seeking to stop the donations”. MENA Rights Group was joined by a number of prominent organisations in expressing concern over Mr Sablouh’s treatment by the Lebanese authorities; the ABA and the Special Rapporteur on the situation of human rights defenders issued separate statements.[30]

7. To what extent has, the legislation and/or measures adopted in your country because of the Covid-19 pandemic, affected the exercise of the independence of the legal profession or security of lawyers. Please explain.

 At various points during the past two years, Lebanon has instituted a variety of measures intended to curb the spread of Covid-19, including lockdowns and curfews, travel restrictions, and limitations on private and public gatherings. All of these have impacted the work of lawyers in some respect, and they have generally not been granted special dispensation. For example, the Tripoli Bar Association unsuccessfully petitioned the courts for an exemption to the alternate circulation policy to enable freer access to clients.

According to interviews, however, these restrictive measures have not resulted in an increase in the targeted harassment or intimidation of lawyers. Nor has there been a noticeable spike in prosecutions of crimes related to freedom of expression or assembly, beyond the continuation of a pre-existing trend in response to the protests that began in 2019.

Conversely, the pandemic has in fact offered an opportunity for reform in the judicial system. With Lebanon’s prisons facing severe overcrowding at the onset of the coronavirus, lawyers applied sustained pressure on the judiciary to release detainees, especially those awaiting trial. This resulted in the release of more than 1000 prisoners and a sharp decline in pretrial detention. Moreover, the shift to video and telephonic investigations and hearings, by order of the minister of justice, has expedited judicial processes. Lawyers have also been granted expanded telephonic access to detained clients, which has spared them the burdensome and time-consuming searches and processing attendant to in-person prison visits.

8. Please describe the measures and policies you would suggest to better protect and guarantee the free exercise of the legal profession.

As noted above, there are several gaps in the framework established by Law No. 8 of 1970 that call for legislative reform.

First, the Law should extend civil and penal immunity to all good-faith statements made in the fulfilment of a lawyer’s professional obligations, rather than only those made in a client’s defence. Relatedly, it should explicitly guarantee that a lawyer is not to be identified with his or her client and may not be subjected to penal, civil, or administrative penalties for providing advice or representation, regardless of the nature of the client or the client’s cause.

Also noticeably absent from the Law is a guarantee for lawyers of reasonable access to information in the state’s possession. The Access to Information Law No. 28 of 2017 offers some relief in this regard, but does not, for instance, require the state to turn over exculpatory evidence in a criminal case. Conversely, the Law does not adequately ensure attorney-client confidentiality by failing to shield verbal, written, and electronic communications and documents made in the scope of such a relationship from seizure or inspection.

Lawyers representing detained clients are further practically impeded in their work by restrictions or burdens on prison visitation and difficulty locating detainees.[31] The Lebanese authorities should continue and broaden the reforms in this regard prompted by the pandemic, including reduced resort to pretrial detention and expanded adoption of communications technology in judicial and penal contexts. Lawyers must also be afforded freedom of movement in order to freely consult with their clients, a right that has taken on particular significance in light of the travel restrictions routinely imposed to arrest the spread of Covid-19.

While the Law includes a number of important democratic safeguards for the governance of the bar associations—including short terms of office, term limits, and staggered Council terms—their elections and actions have nonetheless proven highly susceptible to politicization. The bar associations should consider reforms to minimize this effect, such as requiring candidates to renounce their political affiliations, prohibiting political parties from endorsing candidates, imposing campaign finance limits and disclosure requirements, and taking measures to make their membership and leadership composition more reflective of Lebanon’s diverse population.

Above all, the Lebanese authorities must immediately put an end to their habit of threatening, harassing, and abusing lawyers critical of the state. Members of the security forces who participate in such abuse must be held to account. The prosecution service should likewise cease its malicious pursuit of lawyers who criticise state officials.