Facts

Very limited facts are set out in the actual judgment, apart from the name of the defendant – Shaden Ibrahim Fakih, her year of birth – 1992, the date of the offence – November 19, 2020, and the name of her lawyers. The judgment also sets out the nature of the charges, namely breach of Article 147/157 of the Military Justice Law and Article 383 of the Penal Code by acting to damage the reputation of the Internal Security Forces (ISF) and showing contempt for ISF officers on the job.

However, a separate summary of the facts indicates that Shaden Fakih was at the material time a Lebanese comedian and activist. During the period of the COVID-19 lockdown (i.e., on November 19, 2020), she made a call to the ISF hotline asking for permission to leave her house in order to buy sanitary pads due to the onset of her period. She then proceeded to post a video recording of the call on her Instagram page. Following a complaint about this by the ISF, she was summoned to the Cybercrimes Bureau, interrogated by them and subsequently charged with the two offences noted above.

The case was heard by the Permanent Military Tribunal in Beirut, composed of two military personnel – the President of the Tribunal and a “consultant” – and one “civilian consultant,” who was a judge. The defence team argued that the Tribunal did not have jurisdiction over the case based on Article 2 of the “civil trial rules” and that the case lacked the requisite criminal elements. The decision did not indicate what the prosecution argued.

Decision

The case was heard and decided on June 24, 2022.  The Tribunal rejected the defence argument about jurisdiction based on Articles 24 and 147 of the Military Justice Law and Legislative Decree Number 110/1977, holding that it did have jurisdiction over the criminal offences allegedly committed by the accused.

It referred to ten questions raised by the case, as follows:

First: [Blank][1]

Second: Was it that on Lebanese Territory and on November 19, 2020, the Accused: Shaden Ibrahim Fakih acted to

1. Damage the reputation of the Internal Security Forces
2. Show Contempt for ISF officers on the job.

Third: [Blank]

Fourth: [Blank]

Fifth: [Blank]

Sixth: Does the case have justifiable reasons?

Seventh: Does the case have subrogation excuses?

Eighth: Does the case have extenuating circumstances?

Ninth: Does the case have mitigating excuses?

Tenth: Does the case have mitigating circumstances?

The decisions of the Tribunal were unanimous in response to all seven substantive questions asked. It answered “yes” to both parts of Question 2 and “no” to all of other questions except Question 10, to which it answered “yes”.

Based on its findings in respect of Question 2, the Tribunal held that it was bound to convict the accused of a misdemeanour. It did not engage in any discussion about the relevance or impact of its findings on Questions 6-10. Instead, it simply held that the offence under Article 147/157 of the Military Justice Law warranted a sentence of imprisonment for four months, to be replaced with a fine of LBP 1,200,000 (approximately USD 800 as per the official exchange rate at the time) while the offence under Article 383 of the Penal Code warranted a sentence of imprisonment for two months, to be replaced with a fine of LBP 600,000 (officially USD 400). It also held that the defendant should spend one day in prison for every LBP 10,000 in case of default of payment (i.e. up to 180 days or the about same time as the sentences of imprisonment that the fines had replaced).

Analysis

A first comment here is that international standards generally prohibit civilians being tried before military tribunals. These are intended as special tribunals for the purpose of trying individuals who are employed as part of the armed forces of the nation, rather than for trying crimes which somehow relate to the armed forces, as was the case here. These sorts of tribunals may apply less stringent or simply different procedural rules which may be justified by the military nature of the proceedings but which should not be applied in cases involving civilians. While there are some limited exceptions to this, nothing about this case would engage those exceptions. It involved a civilian acting in a purely civilian capacity. Although she did interact with the ISF, the subject matter of her engagement was also entirely civilian in nature, namely as to whether she could be released from the COVID-19 restrictions which were imposed on civilians for civilian purposes.

While the appropriateness of the defendant’s behaviour could be debated, it is hard to see how it could legitimately sustain criminal charges and certainly the specific charges levied in this case are not legitimate. It is clear under international law that public authorities such as the ISF should not be able to bring a legal case, even of a civilian defamation nature, to defend their reputations. Instead, they should be open to any form of criticism, no matter how unfair or unfounded. Thus, in the case of Dyuldin and Kislov v. Russia, the charges were based on a statement that included the following phrase: “the regional authorities have started reprisals against the independent media.” The European Court of Human Rights found a violation of the right to freedom of expression, among other things because public authorities cannot sue in defamation to defend their reputations, stating:

"[The Court] reiterates that a fundamental requirement of the law of defamation is that in order to give rise to a cause of action the defamatory statement must refer to a particular person. If all State officials were allowed to sue in defamation in connection with any statement critical of administration of State affairs, even in situations where the official was not referred to by name or in an otherwise identifiable manner, journalists would be inundated with lawsuits. Not only would that result in an excessive and disproportionate burden being placed on the media, straining their resources and involving them in endless litigation, it would also inevitably have a chilling effect on the press in the performance of its task of purveyor of information and public watchdog."[2]

While this does not extend entirely to public officials as such, including ISF officers, they should be expected to tolerate a high degree of criticism. The charge of showing contempt for ISF officers on the job is a form of defamation proceeding. In this case, the information the defendant disseminated about the ISF officers was entirely true in nature, being an actual recording of their conversation. True statements can never legitimately sustain a defamation charge. Finally, under international law, defamation should be a civil matter and it is never legitimate to impose a sentence of imprisonment for defamation, albeit the sentence here was commuted to a fine.

The defendant was not charged with obstructing the work of ISF officials while on the job. It is legitimate to prohibit that sort of behaviour as long as the scope of it is appropriately narrow. This would normally relate to physical obstruction of their work although there may be cases where “mere” statements could amount to obstruction, such as shouting while officials were trying to communicate with others. Theoretically an argument could be made in this case that some element of obstruction was present, since the defendant did unnecessarily divert the officers from their core work. However, the nature of the charges makes it pretty clear that the ISF objected to the fact that the defendant had made them look foolish rather than that she had interfered with their work. And, even in this case, such a minor (irresponsible rather than malicious) prank should never lead to an actual criminal charge (as opposed, perhaps, to a warning not to do it again).

[1] It is not clear what the “[Blank]” entries represent.

[2] Dyuldin and Kislov v. Russia, 7 June 2007, Application No. 1914/02, para. 43.

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