Court of Cassation Reverses Indictment Decision by Court of Appeals Against Dr. Mugraby Under Article 111 COLP
Mugraby: The Decision Is a Legal and Moral Victory

Beirut, March 11, 2004

On Wednesday afternoon, March 10, 2004, the Court of Cassation, with Dr. Ralph Riachy acting as chief judge, issued its decision on the petition for cassation filed by Attorney Dr. Muhamad Mugraby against the majority decision to indict him made by the Beirut Court of Appeals, sitting as the indictment chamber, with Jamil Bayram as the presiding judge, and Judge Ghada Aoun dissenting. The indictment had been mainly based on Article 111 of the Code Organizing the Legal Profession (COLP), providing for a prison sentence up to three years. Dr. Mugraby was arrested and detained last summer pursuant to this very article of COLP.

The court of cassation admitted Dr. Mugraby’s petition for cassation, in form and in substance, and set aside the appellate decision. This gives Dr. Mugraby the right to sue for damages on the basis of Article 159 Code of Penal Procedure (CPP).

After reversing the appellate decision, the Court of Cassation considered the two appeals by the public prosecutor and the Bar Association at Beirut (BAB) filed with the court of appeals headed by Bayram, and dismissed both of them.

In contrast to what was erroneously reported by some papers, the court of cassation did not affirm the decision of the investigating judge. It simply refused to review it on the ground of lack of jurisdiction. That decision indicted Dr. Mugraby under Articles 391 and 393 Penal Code (PC), which carry a prison sentence of up to six months and a fine. The reason for its lack of jurisdiction given by the court was the lack of diversity in the legal characterization of the alleged criminal act required by CPP for admission of certain cassation petitions.

The court of cassation sided with Dr. Mugraby’s argument that permission to prosecute had to be sought in advance from the BAB Council, and consequently, he had the right to make the exception before the investigating judge on the basis of the nullity of the prosecution and the public action for failure to duly respect Article 79 COLP. This article mandates that the permission of the BAB Council be obtained in advance of any prosecution. The Court of Cassation found that the investigating judge should have ruled on this exception. The fact that he did not entitled Dr. Mugraby to appeal the implicit decision arising from his silence. Therefore, such appeal is admissible in form.

After reversing the appellate decision of the court presided upon by Bayram, the Court of Cassation, dismissed the two appeals submitted by the public prosecutor and BAB. The court further ruled that the two purported disciplinary decisions, allegedly issued against Dr. Mugraby, are not irrevocable, which means that the required conditions for prosecution under Article 111 COLP are not fulfilled.

Finally, the court found that mere filing by the former president of BAB of the penal complaint against Dr. Mugraby on behalf of BAB, even though BAB never duly took the position of a personal plaintiff, is by itself a permission to prosecute, as Article 79 COLP requires that the request be submitted the president of the bar association, who will convey it to the council, so that if the bar president refrains from doing so, and if the one month period stipulated by the article for ruling by the council on the request expires, then the permission is deemed to have been granted.

In this regard, the court was substantively right in ruling that a request for permission to prosecute Dr. Mugraby was legally required, but it erred in its interpretation of how the requirement was presumed to have been fulfilled. For the provisions of Article 79 cannot be so interpreted for two reasons: Making a written request for the permission is clearly required by the article which gives the council, and only the council, to rule on this request, including a determination of whether the alleged criminal act arose in the course of practicing the profession. Furthermore, the public prosecutor did not wait till the end of the one month period!

According to Article 34 COLP, the organs of the bar association are the general assembly, the council, and the president. Each of these organs has its functions and powers as stipulated by COLP. The bar president may not usurp the functions and powers of the general assembly or the council. Therefore, the court was wrong in finding that the bar president can, by his action, annul or dispense with the text of the law, which delegates the power to grant permission to prosecute to the council alone, by a decision that may be appealed. Holding that the mere complaint by the former president constitutes permission to prosecute deprives Dr. Mugraby of the right to appeal. The law simply gave the power to give permission to prosecute to the bar council and not to the bar president or to the general assembly.

If the President of the Bar Association is given the right to exercise one of the most important powers of the council, this constitutes a serious and disturbing precedent, because the president would then substitute for the council in all its prerogatives, as well as for the general assembly. This cannot be tolerated. For the decision left standing the decision of the investigating judge to indict Dr. Mugraby under Articles 391 and 393 PC, which carry a prison sentence of up to six months and/or a fine. Therefore, Dr. Mugraby will consult with his colleagues over this aspect of the decision of the Court of Cassation in order to take such legal steps as may be necessary.