Special Tribunal for Lebanon: indictment is confirmed

Sealed indictment

It has been announced today, 30 June, that the STL Pre-Trial Judge confirmed the indictment relating to the assassination of Rafiq Hariri and others on 28 June 2011.
The indictment and accompanying arrest warrant(s) were transmitted to the Lebanese authorities today.
According to the announcement, the judge ruled that the indictment shall remain confidential in order to assist the Lebanese authorities in fulfilling their obligations to arrest the accused.

 Trial in absentia?

There is a likelihood that none of the accused will be arrested. In such a case the following procedure applies:

The Lebanese authorities must inform the President of the STL within 30 days after the confirmation of the indictment of the measures the state has taken to arrest the person(s) named in the indictment.

If after these 30 days no individual(s) is/are arrested and if the STL President considers that reasonable attempts to serve the indictment have been made, he may order a public advertisement calling on the accused to surrender to the Lebanese authorities.

If the accused has not been arrested within 30 calendar days of the public advertisements the Pre-Trial Judge can ask the Trial Chamber to initiate in absentia proceedings.

If the trial in absentia takes place, the accused would be represented by a counsel appointed by the Head of the Defence Office.

If the accused decides to present himself to the tribunal during trial proceedings or at any time after sentencing, he may request a new trial.

Appeals Chamber of the Lebanon Tribunal has ruled on applicable law

(see also my previous post on the subject here).

Today, the Appeals Chamber of the Special Tribunal for Lebanon in its decision on applicable law determined that, with regard to the notion of terrorist acts, conspiracy, and intentional homicide, the Tribunal shall apply relevant domestic Lebanese law and not the relevant rules of international treaty or customary law.

Crime of terrorism

The Chamber found that the Lebanese law, interpreted in the light of international rules binding upon Lebanon, require the following elements for the crime of terrorism:

a. the volitional commission of an act or the credible threat of an act;

b. through means that are likely to pose a public danger; and

c. with the special intent to cause a state of terror;

If the perpetrator of a terrorist act uses for example explosives intending to kill a particular person but in the process kills or injures persons not directly targeted, then that perpetrator may be liable for terrorism and intentional homicide (or attempted homicide) if he had foreseen the possibility of those additional deaths and injuries but nonetheless willingly took the risk of their occurrence (dolus eventualis, namely advertent recklessness or constructive intent).

Conspiracy

The Chamber held that the Lebanese law provide the following elements for the crime of conspiracy:

a. two or more individuals;

b. who conclude or join an agreement;

c. aiming at committing crimes against State security (for purposes of this Tribunal, the aim of the conspiracy must be a terrorist act);

d. with an agreement on the means to be used to commit the crime; and

e. criminal intent relating to the object of the conspiracy;

Conspiracy and joint criminal enterprise can be distinguished in that Lebanese criminal law treats conspiracy as a substantive crime and not as a mode of liability, whereas the doctrine of joint criminal enterprise relates to modes of criminal responsibility for participating in a group with a common criminal purpose.

Lebanon, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, App. Ch., 16 February 2011

The STL will discuss some elements of the crimes under STL jurisdiction

 (see further development here)

Pursuant to Rule 68(G) of the STL Rules, the pre-trial judge may submit to the Appeals Chamber any preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

On 21 January, upon receiving the indictment for the confirmation, the pre-trial judge raised before the Appeals Chamber the questions related to five matters:

1. Notion of terrorist acts;
2. Notion of conspiracy;
3. Constitutive elements of intentional homicide with premeditation and attempted intentional homicide with premeditation;
4. Modes of responsibility, with specific reference to commission and co-perpetration;
5. Cumulative charging and plurality of offences.

On the same day, the President of the Tribunal ordered that on 7 February the Appeals Chamber shall hold a public hearing in these matters, so as to provide the parties an opportunity to respond to each other’s submissions.

Indeed, under Article 2 of the STL Statute, the Tribunal shall apply the relevant provisions of the Lebanese Criminal Code relating to acts of terrorism and other crimes under the STL jurisdiction.
In particular, pursuant to Article 314 of the LCC, “The term ‘acts of terrorism’ includes all acts that are intended to cause a state of alarm and have been committed by means such as explosive devices, inflammable substances, toxic or corrosive products or infectious or microbial agents that are liable to pose a public threat.”

Lebanon, Scheduling Order, Case No. STL-11-01/I, President of the Tribunal, 21 January 2011.

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

Yesterday, the Appeals Chamber of the STL upheld the Pre-Trial Judge's order that the former detainee has standing to seize the Tribunal with the request for access to the documents in his criminal file (see previous post on this issue).
The Chamber also found that the Tribunal has jurisdiction over this matter.

The Chamber noted that the application cannot be addressed through the literal application of Rules that relate to accused.
The fact that the Rules provide for the obligatory disclosure of evidence by the Prosecutor to an accused, does not mean the Rules forbid the disclosure of evidence in a situation where there is no indictment and thus no accused, but where the interests of justice otherwise require it.
Rather, this application must be considered in accordance with international standards of human rights and general principles of international criminal law and procedure, and in light of the spirit of the Statute and the Rules

At the same time, the Chamber emphasised that this determination does not entail a ruling on the modalities and limits of the applicant's right of access to a specific set of documents, including the appropriate time frame for exercising any such right.

According to the Chamber, this is a question of merit that the Pre-Trial Judge must decide on the basis of the applicable rules and the submissions of the parties.

In discharging this task, the Pre-Trial Judge "will have to strike a careful balance between the right of the applicant to judicial remedy if his detention was wrongful, on the one hand, and, on the other, the need for the Prosecutor to conduct his investigation efficiently and with the ability to protect the confidentiality of witnesses and evidence."

Apparently, the judge will also have to take into account the protection of UN documents under the Convention on the Privileges and Immunities of the United Nations.

In its letter to the President of the Tribunal of 1 October, the UN noted that "any documents or material of the United Nations International Independent Investigation Commission, and any other United Nations documents and material on the criminal file, are inviolable under the terms of article 11 of the Convention on the Privileges and Immunities of the United Nations.”
Inviolability entails that the documents cannot be disclosed to a third party without the consent of the United Nations.

Lebanon, Decision on Appeal of Pre-Trial Judge's Order Regarding Jurisdiction and Standing, Case No. CH/AC/2010/02, President of the Tribunal, 10 November 2010.

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".