Case Summary and Outcome

The Individual Penal Judge in Beirut, Lebanon, dropped all charges of insulting the Lebanese flag, pressed by the Public Prosecutor against two protestors from the 2015 civil movement, for violating Article 384 of the Lebanese Penal code. The two defendants were participants in the “You Stink” movement which took place in Lebanon in 2015, after the failure of the government to handle the garbage crisis. They were arrested for writing “you stink” and “Persisting” on a painted version of the Lebanese flag on a wall alongside the ministry of interior. The Court considered that the acts carried out by the two defendants did not constitute insulting the flag but rather fell under freedom of expression which is guaranteed in Article 13 of the Lebanese constitution. The Court found that the statements did not refer to the flag but rather the government’s failure to carry out its duties. Accordingly, with the absence of the moral element of the crime, the intent to insult the Lebanese flag, the Court concluded there could be no crime in the committed acts, and therefore the two defendants were acquitted.

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Facts

In 2015, Lebanon was hit by a garbage crisis when garbage piled up in the streets of Beirut after the closure of the main waste dump in the Naameh region. A campaign named “You Stink”, organized several protests to pressure the Lebanese government to act on the garbage crisis.

On October 6, 2015, the first defendant Asaad Thebian was arrested after he wrote the slogan “You Stink” with a paintbrush on the Ministry of Interior’s wall on which the Lebanese flag is painted.

The second defendant Zain Naserddine accompanied the first defendant and wrote “Persisting” with a paintbrush on the aforementioned wall.

The Public Prosecutor considered that writing such expressions on a wall where the Lebanese flag was painted, addressed against the Lebanese flag itself, and hence constituted the crime of insulting the flag.  Hence the Public Prosecutor pressed charges against the two defendants under Article 384 of the Lebanese penal code.

The individual penal judge in Beirut dismissed the case and acquitted the two defendants finding the graffiti fell under the freedom of expression.

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Decision Overview

The individual Penal Judge in Beirut, competent for infractions and misdemeanors, heard the defendants during a public trial session held on 11/7/2019, for charges of insulting the national flag and rendered a judgment on 29/11/2019.

The main issue before the court was to determine whether the writing of the expressions “You Stink” and “Persisting” over a wall on which the Lebanese flag was painted, constituted the crime of insulting the flag as stated in Article 384 of the Lebanese penal code.

Article 384 of the Lebanese penal code states: “Whoever insults the head of state, shall be punished by imprisonment from six months to two years.

The same penalty shall be imposed on anyone who publicly denigrates the national flag or emblem by one of the means mentioned in Article 209”.

Article 209 of the same code states: “The means of publication are:

1- Actions and movements that if carried out in a public place or a place open to the public or exposed to view or seen because of the mistake of the perpetrator by someone who isn’t concerned with it.

2- Speaking or screaming, whether speaking out about them or transferring them by mechanical means, so that in both cases are heard by someone who isn’t concerned with it.

3- Writing, drawings, manual photos and photographs, films, badges, and sketches of all kinds if they are displayed in a public place or a place open to the public or exposed for view or sold or offered for sale or distributed to one or more persons”.

The public prosecution accused the defendants of insulting the Lebanese flag by writing what it considered indecent expressions on a wall on which is painted the Lebanese flag, in what the prosecution considered as infringement of the Article 384 of the Penal Code.

During the trial session held on 11/7/2019, the defendant Asaad Thebian admitted that during the protest, he wrote the phrase “You Stink” on the ministry’s concrete wall to deliver a message to urge the government to carry out its duties to end the garbage crisis, and explained that what he did was a spontaneous act carried out during a demonstration in front of the Ministry of Interior and he did not intend to insult the Lebanese flag.

In the same trial session, the defendant Zain Nasserddine stated that because of the prevailing waste crisis in the country and the government’s failure to do what is necessary to manage the garbage crisis, he wrote the phrase “Persisting” on the aforementioned wall which was only intended to deliver a message to the government, stating that the phrase aimed to inform the demonstrators that they will continue their movement to urge the government to carry out its duties.

Both defendants requested the charges be dropped in the absence of the criminal elements of the act they were charged with on the ground that the expressions they wrote on the aforementioned wall were not in reference to the flag and were not aimed to insult the Lebanese flag but rather were intended to deliver a message to the government to urge it to carry out its duties when it was clearly failing to do so.

The applicable law in the present case was Article 384 of the Lebanese penal code, which mainly concerns insulting the President, the national flag and national emblem. The article is situated under “Section 3” entitled “On Insults” in a Chapter concerning “crimes falling on the public authority” which in itself falls under the Title of “crimes falling on the public administration”. This reflects the moral importance and value the Lebanese legislator gives to the public authority.

Judge Abir Safa, the ruling judge in the case considered that in order to attribute the crime to the defendants in terms of contempt of the Lebanese flag, it is necessary to verify the availability of the material and moral elements of the crime, which is the norm in any criminal case.

In her reasoning, she started by pointing out the symbolic importance of the national flag, stating it is the symbol of the country and its sovereignty, embodying the meanings of honor, dignity, and freedom and symbolizing the principles of glory and pride in national belonging. She considered that these meanings and principles require protection to ensure that they are not subjected to any contempt or denigration.

Furthermore, the Court considered that the material element of the offense of insulting the flag as stated in Article 384 of the penal code, should be a behavior of the defendant, whereby he addresses a phrase, sign, movement or drawing that would attack the principles and meanings mentioned above, such as trampling on it, burning it, tearing it or even writing offensive phrases on it.

As for the moral element in the aforementioned crime, she considered it is present every time the criminal intent is clear, which in the case of Article 384 is, the explicit will to insult and degrade the principles embodied by the flag concerning the state and its citizens.

In examining the defendants’ statements, the Court considered that the expression “Persisting” written by the defendant Zain Nasereddine on a concrete wall marked with the Lebanese flag, which only intended to inform the government that the popular movement will continue to urge it to carry out its duty in providing and preserving the people’s rights, is a phrase that does not constitute, according to the legal concept stipulated in Article 384 of the Penal Code, any contempt of the Lebanese flag and the principles it embodies, neither materially nor morally.

As for the other phrase written by the defendant Assaad  Zebian using a paintbrush on the aforementioned wall, which is “You Stink”, the judge did point out that even if it somehow derogates the limits of decency and manners of communication, is a term that falls within the framework of the freedom of opinion and expression, which was guaranteed by the Lebanese constitution in Article 13 which states “The freedom of speech and writing, the freedom of the press, the freedom of assembly and the freedom of association are all guaranteed within the limits set forth by the law”. In a further explanation, the judge clarified that the phrase “You Stink”, is the slogan chosen by the group of civil movements to be called as such, and what the defendant carried out came as a spontaneous reaction by them and a peaceful expression of protest about the deterioration of the economic and social conditions which affected the Lebanese society as a whole.

Accordingly, the judge considered that these actions are in conformity with Article 13 of the Lebanese Constitution, and are an exercise of this right through a purely peaceful protest method, with the aim of delivering a message to the government to urge it to do what is necessary to address the garbage crisis which affected all Lebanese regions and from which the Lebanese society suffered on both, health and environmental levels.

Subsequently, the judge considered that the lack of intent to undermine and degrade the principles embodied in the Lebanese flag denied the existence of the moral element of the crime of insulting the flag as stipulated in Article 384 of the Lebanese penal code.

The judge even went further by pointing out the government’s failure to carry out its duties by saying that the reproached actions “did not aim to treat the Lebanese flag with contempt or degrade the principles it embodied, which are, living with dignity in a country that is supposed to provide its citizens with basic rights and means of life, at the very least”.

Finally, in light of the absence of elements of the contempt of the Lebanese flag attributed to the defendants, the Court ruled to drop all the charges against them.

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