STL: a former detainee shall have access to the documents in the case

In March 2010, Mr Jamil El Sayed submitted an application before the President of the Special Tribunal for Lebanon (STL) requesting the “release of evidentiary material related to the crimes of libellous denunciations and arbitrary detention”.
He had been detained by the Lebanese judicial authorities in September 2005 until April 2009, when the case was transferred to the STL. He then remained in custody of the Tribunal for about ten days and later released by the pre-trial judge.

The Tribunal has jurisdiction to rule on the application

Yesterday, the pre-trial judge of the STL held that the Tribunal has jurisdiction to rule on the application.
In the judge’s view, should the Tribunal find itself without jurisdiction to rule on the application, the Tribunal would deprive the applicant of any possibility to have his basic right vindicated by a judge. It would thus exclude the applicant from the right to effective judicial protection.

The applicant has standing

The pre-trial judge also held that the applicant has standing to seize the Tribunal of the issues relating to the deprivation of liberty to which he was subjected.

The right of access to the criminal file

The judge recalled that an accused has the right to have access to the documents in his own criminal file.

Accused person

Although the person in this case was not formally indicted, the judge referred to the ECtHR jurisprudence according to which the concept of the indictment is to be interpreted with a certain amount of flexibility and should not be understood in its formal sense, but as meaning “’the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’.
The judge emphasised that, according to that jurisprudence, this definition also corresponds to the test whether the situation of the suspect has been substantially affected.

Further, according to the judge, the rights of defence continue to exist even if the person who has been the subject of a criminal investigation is no longer formally accused or has been discharged.
The judge opined that the same is true of the right of access to the criminal file, which does not cease to exist upon release of the individual.
The basic right to be able, if appropriate, to obtain compensation for prejudice suffered by way of an unlawful detention must have as a consequence the right of access to the documents in the case file. Otherwise it would not be possible to prove the unlawful nature of the detention.

The right of access is not absolute

However, the judge recalled that the right of access to the criminal file is not an absolute. This right can be subject to limitations.
In particular, it can be limited in cases where it might compromise an ongoing or future investigation, undermine fundamental interests, such as the physical well-being of persons concerned by those documents, or affect national or international security. These limitations can also stem from difficulties inherent to the conduct of terrorist investigations.
The judge noted that in some cases, in order to resolve these difficulties, it was accepted that this right was respected even if access to the file was limited to the counsel of the accused alone.
In some instances it is necessary for third parties to go through competent national authorities in order to make requests for access to documents.

Accordingly, the pre-trial Judge invited the Prosecutor to inform him, in particular, whether the above limitations or restrictions apply to the case and what form should access to the file take.

Lebanon, Order Relating to the Jurisdiction of the Tribunal to Rule on the Application by Mr El Sayed Dated 17 March 2010 and whether Mr El Sayed has Standing before the Tribunal, Pre-Trial Judge, Case No. CH/PTJ/2010/005, 17 September 2010

See also "STL: a former detainee has the right to request access to the documents in the case, but the access can be limited".

Jurisprudence of the international Tribunals in the judgments of the European Court of Human Rights

I am not aware of any judgment of the European Court of Human Rights where the Court would refer to the jurisprudence of the international courts/tribunals on procedural matters. In contrast, in several cases the ECHR quoted the Tribunals’ judgments on the matters of substantive international law.
Just recently, in the case of Rantsev v. Cyprus and Russia, the Grand Chamber of the European Court of Human Rights quoted findings in the judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the Kunarac et al. case in regard to the definition of enslavement.
Earlier, in its judgment in the Al-Adsani v. The United Kingdom, the Grand Chamber of the ECHR, in support of its position on the prohibition of torture under international law, quoted the ICTY Trial Chamber’s judgment in the Furundžija case. In this regard, the ECHR also referred to the ICTY Trial Chambers’ judgments in the Delalić et al. and Kunarac et al. cases.

Two decisions of the European Court of Human Rights on its jurisdiction to examine complaints against the International Criminal Tribunal

Prof. William A. Schabas has recently posted on his blog information on challenging the International Criminal Tribunal for the former Yugoslavia at the European Court of Human Rights. As one can see from the decisions mentioned in the post, the European Court of Human Rights found inadmissible the applications of Blagojević and Galić whose convictions had been upheld by the ICTY Appeals Chamber.

The European Court of Human Rights stressed that it lacks jurisdiction ratione personae to examine complaints directed against the International Criminal Tribunal itself or against the United Nations as a respondent. The Court reiterated that the United Nations is an intergovernmental international organisation with a legal personality separate from that of its member states and is not itself a Contracting Party. As to the Netherlands, the European Court of Human Rights opined that the sole fact that the ICTY has its seat and premises in The Hague is not sufficient ground to attribute the matters complained of to the the Netherlands. In arriving at that conclusion the Court has had regard to the particular context in which the question arises before it.

The European Court of Human Rights also noted that the cases involve an international tribunal established by the Security Council of the United Nations, an international organisation founded on the principle of respect for fundamental human rights and that moreover the basic legal provisions governing that tribunal’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.