stl casebook 2013€¦ · documents published in this book do not constitute the official record of...

STL CASEBOOK2013

Major rulings issued by the Special Tribunal for Lebanon

STL

Special Tribunal for lebanonTribunal SpÉcial pour le liban

STL CASEBOOK 2013

STL CASEBOOK2013

Major rulings issued by the Special Tribunal for Lebanon

Special Tribunal for LebanonLeidschendam

Special Tribunal for LebanonLeidschendamNetherlands

©2014 Special Tribunal for Lebanon

Documents published in this book do not constitute the official record of the Special Tribunal for Lebanon and are intended for public information only.

ISBN 978-94-90651-11-4

Printed in The Netherlands

Table of ConTenTs

Preface 7

1. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Order on the Defence Request to Compel Disclosure of the Lebanese Investigative Case Files, Case No.: STL-11-01/PT/PTJ, 8 February 2013 (“Disclosure of Lebanese Case File PTJ”)

9

2. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Decision relating to the Defence Motion to Vacate the Date for the Start of Trial, Case No.: STL-11-01/PT/PTJ, 21 February 2013 (“Vacating Trial Date PTJ”)

23

3. In the Matter of El Sayed, Appeals Chamber, Public redacted version of Decision on Appeal by the Prosecutor against Pre-Trial Judge’s Decision of 11 January 2013, Dated 28 March 2013, Case No.: CH/AC/2013/01, 28 March 2013 (“Disclosure of Documents AC”)

35

4. The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Appeal by Legal Representative of Victims against Pre-Trial Judge’s Decision on Protective Measures, Case No.: STL-11-01/PT/AC/AR126.3, 10 April 2013 (“Total Anonymity of Victims AC”, “Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath)”, “Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko)”)

55

5. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Decision Relating to the Prosecution Requests of 8 November 2012 and 6 February 2013 for the Filing of an Amended Indictment, Case No.: STL-11-01/PT/PTJ, 12 April 2013 (“Leave to Amend Indictment PTJ”)

99

6. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Compliance with the Practice Direction for the Admissibility of Witness Statements under Rule 155, Case No.: STL-11-01/PT/TC, 30 May 2013 (“Admissibility of Witness Statements TC”)

119

7. The Prosecutor v. Ayyash et al., Trial Chamber, Decision on Alleged Defects in the Form of the Amended Indictment of 21 June 2013, Case No.: STL-11-01/PT/TC, 13 September 2013 (“Defects in Form of Indictment TC”)

135

5

6

8. The Prosecutor v. Ayyash et al., Appeals Chamber, Public redacted version of 19 September 2013 Decision on Appeal by Counsel for Mr Oneissi against Pre-Trial Judge’s “Decision on Issues Related to the Inspection Room and Call Data Records”, Case No.: STL-11-01/PT/AC/AR126.4, 2 October 2013 (“Inspection of Call Data Records AC”)

157

9. The Prosecutor v. Ayyash et al., President, Decision on Defence Motion for Reconsideration and Rescission of Order Composing the Trial Chamber, Case No.: STL-11-01/PT/PRES, 4 October 2013 (“Composition of the Trial Chamber PRES”)

183

10. The Prosecutor v. Merhi, Pre-Trial Judge, Public Redacted Version of the “Decision Relating to the Examination of the Indictment of 5 June 2013 issued against Mr Hassan Habib Merhi” dated 31 July 2013 Case No.: STL-13-04/I/PTJ, 11 October 2013 (“Indictment of Mr Merhi PTJ”)

193

11. The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Application by Counsel for Messrs Badreddine and Oneissi against President’s Order on Composition of the Trial Chamber of 10 September 2013 Case No.: STL-11-01/PT/AC, 25 October 2013 (“Challenging Decision of the President AC”)

229

12. The Prosecutor v. Ayyash et al., Appeals Chamber, Decision on Request by Counsel for Messrs Badreddine and Oneissi for Reconsideration of the Appeals Chamber’s Decision of 25 October 2013 Case No.: STL-11-01/PT/AC, 10 December 2013 (“Reconsideration of a Decision AC”)

239

13. The Prosecutor v. Ayyash et al., Pre-Trial Judge, Redacted Version of the Corrected Version of the Pre-Trial Judge’s Report Prepared pursuant to Rule 95(A) of the Rules of Procedure and Evidence Case No.: STL-11-01/PT/PTJ, 11 December 2013 (“Pre-Trial Report PTJ”)

253

14. The Prosecutor v. Merhi, Pre-Trial Judge, Decision to Hold Trial in Absentia Case No.: STL-13-04/I/TC, 20 December 2013 (“Trial in Absentia TC”)

333

Index 381

7

PREFACE

This casebook is part of a collection of volumes that the Special Tribunal for Lebanon plans to publish throughout its life, containing the most significant rulings delivered by its Judges each year. It is part of the outreach efforts of the Tribunal. Its purpose is to improve access to the jurisprudence of the Tribunal in Lebanon and beyond.

This volume contains fourteen major decisions issued by the Tribunal in 2013. These decisions are also accessible on the Tribunal’s website (www.stl-tsl.org). The volume also contains an analytical index aimed at facilitating research by students and scholars.

As the first tribunal of international character with jurisdiction over terrorism, the significance of the STL jurisprudence goes well beyond our courtroom. I hope that this publication will assist students, professors, academics, scholars, judges, lawyers, other members of the legal profession and even the general public – both in Lebanon and elsewhere – in accessing, studying, and commenting on the Tribunal’s case law.

David Baragwanath President

1.Case name: The Prosecutor v. Ayyash et al.

Before: Pre-Trial Judge

Title: Order on the Defence Request to Compel Disclosure of the Lebanese Investigative Case Files

Short title: Disclosure of Lebanese Case File PTJ

9

11

THE PRE-TRIAL JUDGE

Case No.: STL-11-01/PT/PTJ

Before: Judge Daniel Fransen

Registrar: Mr Herman von Hebel

Date: 8 February 2013

Original language: English

Type of document: Public

THE PROSECUTOR v.

SALIM JAMIL AYYASH MUSTAFA AMINE BADREDDINE

HUSSEIN HASSAN ONEISSI ASSAD HASSAN SABRA

ORDER ON THE DEFENCE REQUEST TO COMPEL DISCLOSURE OF THE LEBANESE INVESTIGATIVE CASE FILES

Office of the Prosecutor: Mr Norman Farrell

Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan

Legal Representative of Victims: Mr Peter Haynes

Counsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz

Counsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse

Counsel for Mr Assad Hassan Sabra: Mr David Young

12

Disclosure of Lebanese Case File PTJ

I. Introduction

1. By way of this order, the Pre-Trial Judge decides upon the 6 December 2012 request (the “Request”)1 by Counsel for Mr. Oneissi (the “Oneissi Defence”), joined in all respects by the respective Counsel for Mr. Ayyash, Mr. Badreddine, and Mr. Sabra (collectively, the “Defence”), to receive the entirety of the Lebanese case files, as compiled by the Lebanese Investigative Judges in the case dealing with the attack against Prime Minister Rafiq Hariri and others (the “Lebanese Case File” and the “Hariri case” ).

II. Procedural background

2. On 6 December 2012, the Oneissi Defence filed the Request pursuant to Rule 110(B) of the Rules of Procedure and Evidence (the “Rules”), asking the Pre-Trial Judge to order the Prosecution to disclose to the Defence the entirety of the Lebanese Case File in the form that it was received.2

3. On 10 December 2012, Counsel for Mr. Ayyash3 and Counsel for Mr. Badreddine4 joined the Request. Additionally, on 11 December 2012, Counsel for Mr. Sabra5 joined the Request.

4. On 19 December 2012, the Prosecution filed its response, asking that the Pre-Trial Judge dismiss the Request (the “Response”).6

1 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Requête de la Défense de M. Hussein Hassan Oneissi visant à obtenir les dossiers des juges d’instruction libanais, 6 December 2012.

2 Id., para. 30.

3 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Ayyash Joinder in “Requête de la Défense de M. Hussein Hassan Oneissi visant à obtenir les dossiers des juges d’instruction libanais”, 10 December 2012.

4 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Adjonction de la Défense de M. Mustafa Amine Badreddine à la Requête de la Défense de M. Hussein Hassan Oneissi visant à obtenir les dossiers des juges d’instruction libanais, 10 December 2012.

5 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Sabra Joinder in “Requête de la Défense de M. Hussein Hassan Oneissi visant à obtenir les dossiers des juges d’instruction libanais”, 11 December 2012.

6 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Response to the Defence Request for an Order to Compel Disclosure of the Lebanese Investigative Case Files, 19 December 2012.

13


5. On 29 January 2013, the Oneissi Defence submitted a supplementary filing reiterating the initial disclosure request and adding that the method of disclosure ought to be via Legal Workflow (the “Supplementary Filing”).7 The Oneissi Defence further requested that the PreTrial Judge take note that the Prosecution’s disclosure to date of parts the Lebanese Case File was conducted in a disorganised, inefficient and incomprehensible manner, rendering it insufficient and unacceptable.8

a. The Request

6. The Defence submits two main arguments in support of the Request, the first relating to a restrictive interpretation of Rule 111,9 and the second dealing with the rights of the accused under Lebanese criminal procedure.10

7. The Defence reads Rule 111 as creating a disclosure exemption limited to internal documents produced by the Prosecution or by the United Nations International Independent Investigation Commission (“UNIIIC”).11 As such, the Defence argues that any documents produced by the Lebanese Investigative Judges cannot fall within the ambit of this rule.12

8. Furthermore, should the Lebanese Case File contain any UNIIIC documents, the Defence submits that they should be disclosed13 despite the 19 July 2011 decision by the Appeals Chamber in the El Sayed case (“Appeals Chamber Decision”),14

7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Requête supplétive à la Requête de la Défense de M. Hussein Hassan Oneissi aux fins d’obtenir les dossiers des juges d’instruction libanais, confidential, 29 January 2013 with a public redacted version of the same date.

8 Id., para. 26.

9 Rule 111 provides: “Reports, memoranda, or other internal documents prepared by a Party, its assistants or representatives in connection with the investigation or preparation of a case are not subject to disclosure or notification under the Rules. For purposes of the Prosecutor, this includes reports, memoranda, or other internal documents prepared by the UNIIIC or its assistants or representatives in connection with its investigative work.”

10 Request, para. 1.

11 Id., para. 14.

12 Id., para. 16.

13 The Defence distinguishes between UNIIIC documents dated prior to 16 June 2005, arguing that these documents must be disclosed because they were created before the UNIIIC became fully operational. Id., para. 19.

14 STL, In the matter of El Sayed, Case No. CH/AC/2011/01, Decision on Partial Appeal by Mr. El Sayed of Pre-

14


which specifies three categories of UNIIIC documents as being exempt from disclosure under Rule 111.15 The Defence argues that the context of the present case is distinguishable from that of the El Sayed case. Firstly, the four accused in the current proceedings are procedurally distinct from Mr. El Sayed, who was not charged by the Tribunal. Secondly, the Appeals Chamber Decision relied on case law where the accused were present, whereas the in absentia nature of the present proceedings renders access to documents essential.16

9. Finally, the Defence submits that the Lebanese Code of Criminal Procedure allows the accused access to the information collected by judges or police in relation to the charges laid against them.17 As Lebanese citizens, the accused before the Tribunal cannot be deprived of rights that they are entitled to under their national jurisdiction.18

b. The Response

10. The Prosecution submits that the Request is unnecessary19 since the Prosecution intends to disclose the “relevant”20 documents, and that the Rules do not provide for the relief requested.21 The Prosecution argues that Rule 110(B), upon which the Request relies, provides for “inspection” of documents material to the preparation of the Defence, not “disclosure” thereof.22 In addition, the Prosecution submits that it is incumbent upon the Defence to establish the relevance of the specific documents sought within the Lebanese Case File, as opposed to relying on a “blanket request”.23

Trial Judge’s Decision of 12 May 2011, 19 July 2011.

15 Id., paras 92-96; See also Request para. 20, listing the three categories as: i) correspondence between the UNIIIC and the Lebanese authorities, ii) internal memoranda of the UNIIIC, and iii) investigators’ notes.

16 Request, paras 20-21.

17 Id., para. 22.

18 Id., para. 23.

19 Response, para. 12.

20 Id., para. 2.

21 Id., paras 13-16.

22 Id., para. 13.

23 Id., para. 16.

15


11. Moreover, the Prosecution contends that the Defence arguments in relation to Rule 111 are without merit, that the rule applies in the present case and effectively bars disclosure of certain material found in the Lebanese Case File.24 In accordance with the holding of the Appeals Chamber Decision, the Prosecution submits that “internal UNIIIC material, even as possessed by the Lebanese authorities and as contained in the Lebanese case files, is not subject to disclosure under Rule 111.”25

12. Finally, the Prosecution responds to the Defence arguments relating to Lebanese criminal procedure by stating that they are inapposite and recalling that “domestic and international legal regimes are distinct, and provide different mechanisms to ensure the fundamental rights of the accused.”26

III. Discussion

a. The Supplementary filing

13. The Pre-Trial Judge notes that the time period allotted for filing a response to the Supplementary Filing has not elapsed and he will therefore, in this decision, only rule on the Request.

b. Defence access to the entirety of the Lebanese Case File

14. The Pre-Trial Judge notes that the legal characterisation of the Lebanese Case File will determine whether the Defence should be granted access to it. In order to properly categorise its nature, the Pre-Trial Judge considers it necessary to recall the procedure by which the Lebanese Case File was transferred to the Prosecution:

- on 1 March 2009, the Tribunal began its operations and the Prosecutor assumed office. On 27 March 2009, upon request of the Prosecutor, the Pre-Trial Judge directed the Lebanese authorities seised of the Hariri case to defer to the Tribunal’s competence and to thereby hand over to the Prosecution the results of the

24 Id., paras 17-22.

25 Id., para. 19.

26 Id., para. 20.

16


investigations, a copy of the relevant court records, and other probative material (the “Order of 27 March 2009”);27

- on 7 April 2009, in execution of the Order of 27 March 2009, the Lebanese authorities agreed to provide the Tribunal with the Lebanese Case File;28

- on 10 April 2009, the Pre-Trial Judge received the Lebanese Case File at the Tribunal and immediately consigned it to the Office of the Prosecution (“OTP”).

15. The Pre-Trial Judge notes that the transfer to the Prosecution of investigations and other material relevant for the Hariri case is in accordance with Article 4(2) of the Statute and Rule 17(A). The Prosecution is therefore expected to be in possession of material produced by Lebanese investigative authorities who dealt with the Hariri case prior to the Tribunal being bestowed exclusive jurisdiction over the matter. The Pre-Trial Judge therefore considers it reasonable that the Defence seek access to these documents by requesting them directly from the Prosecution.

16. Despite the Prosecution’s submission that the Lebanese Case File is a collection of large evidentiary holdings and not a distinct “dossier”,29 the Pre-Trial Judge finds that the material contained therein can nevertheless be categorised as the file or “dossier” received from the Lebanese authorities following a deferral order. Indeed, in a 15 April 2009 letter to the Pre-Trial Judge, the Prosecution notes that it received 253 files from the Lebanese authorities on 10 April 2009, in response to the Order of 27 March 2009. He adds that the Lebanese Case File included an envelope containing a copy of detailed lists of the content of the 253 files,30 thereby serving as an index to the entire dossier.

27 STL, CH/PTJ/2009/01, Order Directing the Lebanese Judicial Authority Seized with the Case of the Attack Against Prime Minister Rafiq Hariri and Others to Defer to the Special Tribunal for Lebanon, 27 March 2009, para. 19.

28 . See Judicial Council of Lebanon, Conseil Judiciaire 2005/No. 3/Juge d’Instruction Judiciaire, « A l’Attention du Juge de la Mise en Etat Auprès du Tribunal Spécial Pour Le Liban M. Daniel Fransen »¸ 7 April 2009 (“Judicial Council of Lebanon Decision”).


30 Letter from Prosecutor D.A. Bellemare to Pre-Trial Judge, Transmis au Juge de la mise en état du Tribunal spécial pour le Liban, 15 April 2009, para. 2: « une enveloppe contenant, selon les mêmes autorités libanaises, une copie “de toutes les listes détaillées du contenu des 253 dossiers” ».

17


17. In contrast to the Prosecution’s file, the Lebanese Case File is essentially an investigative file consisting of material gathered and recorded by Lebanese Investigative Judges in establishing the truth,31 and thereby proving the guilt or innocence of the accused. As such, the material it contains would fall under the disclosure regimes of Rules 110 and/or 113. The Pre-Trial Judge therefore finds that the Defence has a right to access all the documents and material consisting of the Lebanese Case File, as received by the Tribunal on 10 April 2009.

18. The Pre-Trial Judge agrees with the Prosecution that the Defence must establish that the documents sought, pursuant to Rule 110(B), are material for the preparation of its case. However, in the present case, the Pre-Trial Judge finds its relevance evident since the Lebanese Case File contains the product of the investigations carried out by Lebanese authorities with respect to the Hariri case.

19. Finally, the Pre-Trial Judge notes that the Prosecution agrees that it must disclose or make available for inspection any “relevant documents” contained in the Lebanese Case File that fall within the scope of Rules 110(B) and/or 113.32 Indeed, the Prosecution has already sent the Defence a spreadsheet listing these “relevant documents” and providing a brief summary of their content.33 Therefore, the matter in dispute between the Parties is exclusively with respect to disclosure of documents that the Prosecution considered irrelevant and therefore not needing to be disclosed under Rules 110 and/or 113.

20. The Pre-Trial Judge takes note of the Prosecution having already disclosed much of the material contained in the Lebanese Case File, and hereby orders that all the remaining material be disclosed. Accordingly, the Prosecution should also update the spreadsheet it sent the Defence to include the pertinent information (evidence record number, title, brief summary) for all the documents contained in the Lebanese Case File.

31 See Article 61 of Lebanese New Code of Criminal Procedure.


33 Ibid.

18


c. Application of Rule 111 to the Lebanese Case File

21. The Pre-Trial Judge disagrees with the Defence submission that the present case should be distinguished from the El Sayed case because the four accused in the former case have been charged by the Tribunal and are therefore procedurally distinct from Mr. El Sayed. The Pre-Trial Judge recalls that Rule 111 specifically creates an exception to the accused’s general right to access relevant information in preparing his defence. Indeed, Rule 111 aims to protect information related to the internal preparation of a case34 in order to, inter alia, enable the Prosecution and the UNIIIC to effectively conduct investigations while still being observant of the rights of the accused.

22. The Pre-Trial Judge also disagrees with the Defence argument that the in absentia nature of the current proceedings makes it essential for the Defence to have access to documents, and therefore Rule 111 should not apply. The Pre-Trial Judge recalls that access to information is also of primordial importance in cases where the accused are present, as evidenced by the importance placed on disclosure. Indeed, Rule 111 is unaffected by the presence or absence of the accused since the basis justifying its application relates to maintaining the confidentiality of internal work product gathered by the Parties in the preparation of their respective cases.

23. As noted in the Appeals Chamber Decision, the Pre-Trial Judge recalls that Rule 111 excludes from disclosure “internal documents” prepared either by a Party or by the UNIIIC.35 Therefore, the first criterion for exclusion is that the documents in question be “internal documents”.36

24. The Pre-Trial Judge further recalls that whether documents are characterised as internal will depend not only on the “content of the documents in question, their function and purpose, as well as their source or author”,37 but also on whether there has

34 Appeals Chamber Decision, para. 81, citing ICTY, Blagojević et aI., Decision on Vidoje Blagojević’s Expedited Motion to Compel the Prosecution to Disclose Its Notes from Plea Discussions with the Accused Nikolić and Request for an Expedited Open Session Hearing, IT-02-60-T, 13 June 2003, at p. 6.

35 Appeals Chamber Decision, para. 77.

36 Otherwise known as “internal work product”. Id., para. 79.

37 Appeals Chamber Decision, para. 72; ICC. Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Public Redacted

19


been outside interference. For instance, a note made by a member of the Prosecution will lose its privileged status if it is put to a witness38 or if it is disclosed to a party outside the OTP.39 Similarly, as stated by the Appeals Chamber, correspondence sent to counsel for Mr. El Sayed or operative documents addressed to external actors cannot be classified as “internal documents” because they are not “purely internal”.40

25. Indeed, the purpose of Rule 111 “is predominantly to allow uninhibited discussion among those representing one Party when considering what decisions to make. [...] The major focus of Rule 111 material is on opinion.”41 This discussion is not commonly included in a court file, which is expected to be transmitted to all the Parties.

26. The Lebanese Case File was compiled by Investigative Judges and contains “the results of the investigation and a copy of the court’s records regarding the Hariri case”42. As such, the Lebanese Case File is to be considered as an indivisible file which contains the information submitted for review to the Lebanese Investigative Judges dealing with the Hariri case, and which could be accessed by the Parties.

27. The Pre-Trial Judge therefore finds that, unless the Lebanese Investigative Judges compiling the file inadvertently included confidential material, none of the documents contained in the Lebanese Case File are protected under Rule 111.

Version of Decision on the Defence Request for Disclosure of Pre-Interview Assessments and the Consequences of Non-Disclosure, 9 April 2010, para. 35.

38 ICTR, The Prosecutor v. Niyitegeka, Case No ICTR-96-14-A, Appeals Judgment, 9 July 2004, para. 34.

39 ICTR, The Prosecutor v. Karemera, Case No ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion for Selective Prosecution Documents, 30 September 2009, para.10.

40 Appeals Chamber Decision, para. 108 [emphasis in original].

41 Id., para. 100 [emphasis in original].

42 Order of 27 March 2009, Disposition [emphasis in original]. See also Judicial Council of Lebanon Decision, para. 2 of Disposition: « copie de tous les éléments de l’instruction ainsi qu’une copie du dossier de même que tous les documents et objets saisis ».

20


d. Inspection versus Disclosure of the Lebanese Case File

28. The Pre-Trial Judge takes note of the Prosecution’s position that Rule 110(B) provides for “inspection”, not “disclosure”.43 However, the Pre-Trial Judge emphasises that a liberal understanding of “disclosure” encompasses both providing copies of documents and permitting their inspection. In this case, to disclose the Lebanese Case File through inspection would be impractical and contrary to common sense, notably when considering the volume of file and the fact that most documents are in Arabic.

29. Furthermore, the Pre-Trial Judge has already found that the Lebanese Case File, as compiled by the Lebanese Investigative Judges, should be treated as an integral, indivisible whole, and it should therefore be disclosed as such. The updated version of the Prosecution’s spreadsheet listing all the material found within the Lebanese Case File can serve as an index for disclosure purposes.


21


FOR THESE REASONS,

THE PRE-TRIAL JUDGE,

PURSUANT TO Rules 77(A), 89(B) and 110(B)

GRANTS the Request; and

ORDERS the Prosecution to disclose to the Defence the entirety of the Lebanese Case File as it was received by the Tribunal, save for any confidential material that may have been inadvertently included in the file by the Lebanese Investigative Judges, along with an index of all the material contained therein.

Done in Arabic, English and French, the English version being authoritative. Leidschendam, 8 February 2013

Daniel Fransen Pre-Trial Judge

22




Title: Decision relating to the Defence Motion to Vacate the Date for the Start of Trial

Short title: Vacating Trial Date PTJ

23

25

THE PRE-TRIAL JUDGE




Date: 21 February 2013

Original language: French


THE PROSECUTOR v.



DECISION RELATING TO THE DEFENCE MOTION TO VACATE THE DATE FOR THE START OF TRIAL







26

Vacating Trial Date PTJ

I. Subject of the decision

1. By way of the present decision, the Pre-Trial Judge rules on the request of 23 January 2013 from the Defence for Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi and Mr Assad Hassan Sabra (the “Defence” and the “Accused”) to postpone the date for the start of trial in accordance with Rule 91 (C) of the Rules of Procedure and Evidence (the “Rules” and the “Motion”).1


2. On 28 June 2011, the Pre-Trial Judge issued a decision relating to the indictment of 10 June 2011 drawn up by the Prosecutor. Pursuant to that decision, the Accused were indicted in relation to the attack of 14 February 2005 which resulted in the death of Mr Rafic Hariri and others, and caused injury to other persons.2

3. On 19 July 2012, the Pre-Trial Judge set the tentative date for the start of trial at 25 March 2013, in light, in particular, of his consultation with the Parties during the Status Conference of 12 June 2012, as well as with the President of the Tribunal, with the Presiding Judge of the Trial Chamber and with the Registrar (the “Order Setting the Date of Trial”).3

4. On 25 October 2012, in accordance with Rule 91 (A) of the Rules, the Pre-Trial Judge established a working plan determining the obligations of the Parties and of the participants in the proceedings with a view to the start of trial on 25 March 2013 (the “Working Plan”).4

1 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Joint Defence Motion to Vacate Tentative Date for Start of Trial, confidential, 23 January 2013. A public redacted version was filed on 24 January 2013.

2 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Decision Relating to the Examination of the Indictment of 10 June 2011 Issued Against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi & Mr Assad Hassan Sabra, 28 June 2011.

3 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order Setting a Tentative Date for the Start of Trial Proceedings, 19 July 2012, Disposition (“Order Setting the Date of Trial”).

4 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order on a Working Plan and on the Joint Defence Motion Regarding Trial Preparation, 25 October 2012 (“Order on a Working Plan”).

27


5. On 23 January 2013, the Defence sought the postponement of the date of the trial in accordance with Article 16 of the Statute and Rules 69 and 77 (A) of the Rules.5

6. On 29 January 2013, the Prosecution responded to the Motion (the “Response”).6

7. On 30 January 2013, the Parties were heard with regard to the Motion during a Status Conference.

8. On 15 February 2013, in accordance with the instructions given by the Pre-Trial Judge during the Status Conference of 30 January 2013, the Prosecution filed a notice regarding the fulfillment of its disclosure obligations (the “Notice”).7

III. Arguments of the Parties

A. The Motion

9. The Defence seeks the postponement of the date for the start of trial for, among others, the following reasons: the incomplete disclosure of documents by the Prosecution, the volume of evidentiary materials disclosed, the size of the Prosecution file, the shortcomings of the Prosecution’s pre-trial brief, the technical and translation issues relating to the documents disclosed, the non-cooperation by the Lebanese authorities, the impact of the possible need for the Defence to have to prepare for allegations of a deliberate line of conduct of the Accused and the absence of the Accused. The Defence considers that together these factors have contributed to restricting its ability to conduct its investigations and prepare for trial. It deems that

5 Motion, para. 1.

6 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Response to “Joint Defence Motion to Vacate Tentative Date for Start of Trial”, confidential, 29 January 2013, with a public redacted version of the same date.

7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution’s Notice Regarding Disclosure, confidential, 15 February 2013. The Prosecution filed a public redacted version of the Notice on 18 February 2013.

28


the date of 25 March 2013 is neither realistic nor reasonable and that the Prosecution itself should have sought the postponement of the start of trial.8

10. In concrete terms, the Defence submits that the Prosecution still has to disclose to it approximately 200 documents in accordance with Rule 91 of the Rules, 85 documents being the subject of a Prosecution request to amend its list of exhibits and others, including some expert reports, which are conditional upon pending requests for witness protection.9 The Defence states that the Prosecutor has failed in the disclosure obligations incumbent upon him pursuant to Rule 110 (A) (ii) of the Rules with respect to a number of witnesses.10 It states that the disclosure relating to the expert witnesses is incomplete and is having a serious impact on its preparation and the work of its own experts.11 The Defence recalls that the Prosecutor also failed to meet his obligations with regard to Rule 110 (B) of the Rules, as indicated by the requests for intervention that it made to the Pre-Trial Judge.12 It also states that the disclosure of documents in accordance with Rule 113 of the Rules has been extremely tardy and is not yet complete.13

11. With regard to the volume of the documents disclosed as of 22 January 2013, the Defence states that it has received 86,236 documents, amounting to approximately 469,000 pages, of which 92 % were only disclosed after 13 November 2012.14 It adds that it has experienced some technical difficulties to access and understand the documents, as well as difficulties related to the lack of translation of some of them.15 The Defence reports other difficulties in connection with the Lebanese investigative file, including in particular the lack of an index for the documents disclosed by way

8 Motion, paras 1 and 2.

9 Id., para. 17.

10 Id., para. 19.

11 Id., paras 20 and 21.

12 Id,, para. 22.

13 Id., para. 23.

14 Id., paras 25-28.

15 Id., paras 32 et seq.

29


of the “Z drive” in that respect.16 It recalls that the Prosecution witness list comprises 557 witnesses, including 128 experts, and that the list of exhibits comprises 13,173 items.17

12. Given the number of matters still outstanding, the Defence considers that it is not able to propose a new date for the trial. It considers that the Pre-Trial Judge should not set a new date before the Prosecution has met its disclosure obligations and the Lebanese authorities have responded to their requests for cooperation.18

B. The Response

13. According to the Prosecution, the following factors identified by the Defence could justify postponing the date of the trial: the incomplete disclosure of the documents, the volume of evidence disclosed, the scale of the case, as well as the technical and translation issues relating to the disclosures.19 Nevertheless, the Prosecution contests the assertion that it bears the entire responsibility for the delay in the proceedings and that it should itself have sought a postponement.20 It considers that it filed its pre-trial brief, the witness list and the list of exhibits in conformity with Rule 91 (G) (ii)21 of the Rules.

14. The Prosecution states that it intends to expand access for the Defence to the call data records in the inspection room and that it is consulting with various organs to find a solution for the documents the Defence is still unable to access on the “Z drive”. It nevertheless considers that it has no obligation to provide an “organisational system” of the “Z drive” along with the disclosures it makes.22

16 Id., para. 42.

17 Id., para. 30.


19 Response, paras 1 and 2.


21 Id., para. 11 et seq.

22 Id., paras 16-18.

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C. The Notice

15. The Prosecution emphasises the following points: with the exception of two expert reports, one addendum and supporting material for expert reports, all the documents referred to in Rule 91 (G) (iii) of the Rules have been disclosed;23 the documents referred to in Rules 110 (A) (i) and 88 of the Rules have been disclosed since June 2012;24 with the exception of a number of witness statements which are the subject of a request filed before the Pre-Trial Judge, all the documents referred to in Rule 110 (A) (ii) of the Rules have been disclosed;25 due to technical difficulties, some documents will be made available for inspection in accordance with Rule 110 (B) of the Rules only from 11 March 2013;26 the disclosure of all the exculpatory evidence (Rule 113 of the Rules) should be finalised on 17 June 2013 instead of 11 March 2013 due to the nature of the research the Prosecution has to conduct.27

IV. Applicable law

16. Rule 91 (C) of the Rules, applicable in the case at hand, provides as follows:

The Pre-Trial Judge, in consultation with the Parties, the Registrar, the Presiding Judge of the Trial Chamber and, if necessary, the President, shall set a tentative date for the start of trial proceedings at least four months prior to that date.

17. In order to rule on a request for postponement of the trial, the case law of the ad hoc tribunals prescribes that, having been seized, a chamber examines whether the interests of justice justify such a request.28

23 Notice, para. 5.

24 Id., para. 6.

25 Id., para. 7.

26 Id., paras 8-13.

27 Id., paras 14-20.

28 ICTY, The Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Reasons for Decision Partially Granting the Simatović Defence Urgent Request for Adjournment, 17 April 2012.

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V. Statement of reasons

18. On 19 July 2012, the Pre-Trial Judge decided, in the interests of justice, to set the tentative date for the start of trial for 25 March 2013. He set that date as early as possible so that the Parties and the other participants in the proceedings would be able to anticipate future deadlines and better prepare their case.29 That decision was in response to the obligation of the Pre-Trial Judge to ensure that the proceedings are not unjustifiably delayed in any way, in particular by imposing any measures necessary for the case to be ready for a fair and expeditious trial.30

19. In order to determine the tentative date for the start of trial on 25 March 2013 and the Working Plan that followed, the Pre-Trial Judge took several factors into consideration, and in particular Article 16 (4) (b) of the Statute, which provides that the accused has the right “[t]o have adequate time and facilities for the preparation of his or her defence”.31 The Pre-Trial Judge, moreover, took account of the international case law according to which “[w]hat constitutes ‘adequate time and facilities’ cannot be assessed in the abstract [...]”.32 That time depends on the specific circumstances of the case at hand, and especially on the following criteria: “i) the complexity of the case; ii) the number of counts and charges; iii) the gravity of the crimes charged; iv) the status and scale of the Prosecution’s disclosure; and v) the staffing of the Defence team”.33

20. The Pre-Trial Judge now notes that some of the obligations provided for in the context of the Working Plan were not met within the deadlines set, as is indeed

29 Order Setting the Date of Trial, para. 19.

30 Article 18, paragraph 2 of the Statute.

31 Order Setting the Date of Trial, para. 14.

32 Order Setting the Date of Trial, para. 13 citing ICTY, The Prosecutor v. Krajišnik, Case No. ICTY0039A, Appeal Chamber Judgement, 17 March 2009, para. 80; SCSL, Prosecutor v. Taylor, Case No. SCSL-2003-01-T, Decision on “Defence Notice of Appeal and Submissions Regarding the 4 May 2009 Oral Decision Requiring the Defence to Commence Its Case on 29 June 2009”, 23 June 2009, para. 19.

33 Id., citing ICTR, The Prosecutor v. Ngirabatware, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 28; See also ICTY, The Prosecutor v. S. Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, paras 8-19; See also, ECHR, Twalib v. Greece (42/1997/826/1032), Judgment of 9 June 1998, para. 40.

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recognised by the Prosecution. Among those is the fact that the Prosecution did not disclose all the case materials to the Defence as provided by Rules 91 (G) (iii) and 110 (A) (ii) of the Rules. It should also, in addition, be noted that the Defence has encountered and is still encountering technical difficulties in accessing some of these documents and analysing them. Clearly, problems such as these, together with the pending requests for cooperation to the Lebanese authorities, which could not have been anticipated in the Order setting the date of trial, to which can be added the volume of evidence disclosed, are of a nature that justifies and renders legitimate the request to postpone the tentative date for the start of trial submitted by the Defence. Indeed, those factors do not allow the Defence to make efficient use of the time and facilities required to prepare, thus jeopardising the fairness of the proceedings and the compliance with the fundamental guarantees recognised by the general principles of law.34

21. Under the current circumstances of the case, the Pre-Trial Judge considers that maintaining the date for the start of trial at 25 March 2013 would unduly favour the imperative of expeditiousness to the detriment of the fairness of the proceedings. As the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) stated, “[t]he Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests. This is particularly so in a trial of this scope and complexity, for which there is little precedent.”35 In the case at hand, it is in the interests of justice and the fairness of the proceedings to set a new tentative date for the start of trial.

22. Out of concern for reducing the financial and human resources associated with the organisation of the trial, the Pre-Trial Judge deems it appropriate to inform, as of now, all the interested persons of the postponement of the date for the start of trial.

23. Furthermore, a new tentative date for the start of trial should be set as soon as possible in order to ensure that the proceedings are not unjustifiably delayed in any way. For that purpose, the consultation procedure with the Parties and the participants

34 Articles 16 and 18, paragraph 2 of the Statute.

35 ICTY, The Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 16.

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in the proceedings provided for in Rule 91 (C) of the Rules should start now. In that regard, the Pre-Trial Judge considers that, even if some documents have not yet been filed by the Prosecution, the information currently available, especially that provided by the Prosecution on 15 February 2013 in the Notice, allows the Parties and the participants in the proceedings to already estimate the time they consider they need to prepare. In accordance with Rule 91 (C) of the Rules, the Pre-Trial Judge will then consult with the President of the Tribunal, the Presiding Judge of the Trial Chamber and the Registrar.

24. At the end of this consultation process, the Pre-Trial Judge will establish a new Working Plan setting out clearly the obligations of the Parties and of the participants with a view to preparing for the trial as well as the deadlines to be met and will set a new tentative date for the start of trial, taking into account the need for efficiency, expeditiousness and fairness of the trial. The Pre-Trial Judge considers that, in the meantime, every effort must be made to meet the obligations laid down in the Working Plan and the various decisions setting the deadlines. In that connection, he points out that if the Parties consider that they are unable to meet the deadlines set, they may only seek new deadlines by submitting a request for that purpose to the Pre-Trial Judge. That request, duly reasoned and filed in good time, must justify in a detailed and precise manner the reasons for which the requesting party deems itself to be unable to meet the deadlines set.36

36 Order on a Working Plan, para. 22.

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DISPOSITION

FOR THESE REASONS,

Pursuant to Rules 77 and 91 (C) of the Rules,


DECLARES the Request admissible and well-founded;

ORDERS the postponement of the tentative date for the start of trial;

ORDERS the Defence and the Legal Representative of Victims to send him a detailed note containing a precise estimation of the time they require to prepare for the trial, as well as a reasoned proposal for a tentative date for the start of trial by 8 March 2013 at the latest;

ORDERS the Prosecution to send him a detailed note containing a reasoned proposal for a tentative date for the start of trial by 8 March 2013 at the latest; and

REMINDS all the participants in the proceedings that they must meet their obligations in accordance with the Working Plan.

Done in English, Arabic and French, the French version being authoritative. Leidschendam, 21 February 2013


3.Case name: In the Matter of El Sayed

Before: Appeals Chamber

Title: Public redacted version of Decision on Appeal by the Prosecutor against Pre-Trial Judge’s Decision of 11 January 2013, Dated 28 March 2013

Short title: Disclosure of Documents AC

35

37

THE APPEALS CHAMBER

Case No.: CH/AC/2013/01

Before: Judge David Baragwanath, Presiding Judge Ralph Riachy Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko Judge Ivana Hrdličková


Date: 28 March 2013


Type of document: Public Redacted

IN THE MATTER OF EL SAYED

PUBLIC REDACTED VERSION OF DECISION ON APPEAL BY THE PROSECUTOR AGAINST PRE-TRIAL JUDGE’S DECISION

OF 11 JANUARY 2013, DATED 28 MARCH 2013

Counsel for Mr El Sayed: Mr Akram Azoury

Prosecutor: Mr Norman Farrell

Head of Defence Office: Mr François Roux

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Disclosure of Documents AC

INTRODUCTION

1. In the context of proceedings concerning a request by Mr El Sayed for disclosure of documents in the Prosecutor’s custody, we are seized of an appeal by the Prosecutor against the Pre Trial Judge’s decision of 11 January 2013.1 In that decision, the Pre-Trial Judge determined that certain documents were subject to disclosure to Mr El Sayed in line with the Appeals Chamber’s case-law.2 We find the appeal admissible. The appeal also succeeds on the merits because the three documents in question are not subject to disclosure. We accordingly reverse the Pre-Trial Judge’s decision.

BACKGROUND

2. The Prosecutor has in his possession three documents in respect of which he was unsure whether he was obliged to disclose them to Mr. El Sayed. We have previously ruled on the scope of the Prosecutor’s disclosure obligations vis-à-vis Mr El Sayed. In particular, we have explained the extent to which internal work product may not be disclosed to Mr El Sayed.3 In the light of that decision, the Prosecutor requested the Pre-Trial Judge to clarify his disclosure obligations with respect to the three documents. Referring to the decision, the Prosecutor generally argued that these documents, correspondence between the United Nations International Independent Investigation Commission (“UNIIIC”) and the Lebanese authorities, constitute internal work product under Rule 111 of the Rules of Procedure and Evidence (“Rules”) and were therefore not subject to disclosure.4

1 STL, In the matter of El Sayed, OTP/AC/2013/01, Prosecution Appeal of the Pre-Trial Judge’s “Decision portant sur la Demande du Procureur de Suspendre la Communication de Certains Documents” of 11 January 2013, Confidential and Ex Parte, 7 February 2013 (“Appeal”).

2 STL, In the matter of El Sayed, CH/PTJ/2013/01, Decision on the Prosecution Request to Suspend the Disclosure of Certain Documents, Confidential and Ex Parte, 11 January 2013 (“Impugned Decision”).

3 STL, In the matter of El Sayed, CH/AC/2011/01, Decision on Partial Appeal by Mr. El Sayed of Pre-Trial Judge’s Decision of 12 May 2011, 19 July 2011 (“Decision of 19 July 2011”); see also below paras 25-26.

4 STL, OTP/PTJ/2012/10, In the matter of El Sayed, Prosecution’s Submissions on the Status of Certain Documents, Confidential and Ex Parte, 1 November 2012.

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3. In the Impugned Decision, while not ordering outright disclosure, the Pre-Trial Judge found that all three documents contained “admissions of fact” which, in terms of the Appeals Chamber’s decision, should be disclosed.5 However, he also stated that this clarification was independent of other conditions that might prevent their disclosure.6

4. On appeal, the Prosecution submits that the Pre-Trial Judge erred in interpreting the Appeals Chamber decision too broadly and that he should have found that the documents are protected as internal work product under Rule 111.7 Mr El Sayed opposes the Appeal, primarily arguing that it is not admissible.8

DISCUSSION

I. The public nature of the proceedings

5. The proceedings before the Pre-Trial Judge in this particular matter were held confidentially and ex parte, that is, without the participation of Mr El Sayed. This means that Mr El Sayed was not given the opportunity to respond to the Prosecutor’s request before the Pre-Trial Judge. Likewise, the Appeal was initially filed without being provided to Mr El Sayed. However, by way of Interim Order, we provided him with public redacted versions of the Appeal, the Impugned Decision, and the Prosecutor’s request before the Pre-Trial Judge, to allow him to participate in this matter as far as possible.9 We were guided in our decision by two considerations: the principle that requires a court to

5 Impugned Decision, p. 8; paras 11, 15.

6 Impugned Decision, para. 16.

7 Appeal, paras 6, 9.

8 STL, In the matter of El Sayed, CH/AC/2013/02, Observations of General Jamil El Sayed on the Prosecution Appeal of the Pre-Trial Judge’s “Decision portant sur la Demande du Procureur de Suspendre la Communication de Certains Documents” in Execution of the Appeals Chamber Decision of 14 March 2013, 18 March 2013 (“El Sayed Response”); see also STL, In the matter of El Sayed, OTP/AC/2013/01, Prosecution Reply to the Observations of Jamil El Sayed, 25 March 2013.

9 STL, In the matter of El Sayed, CH/AC/2013/01, Interim Order on Prosecutor’s Appeal, 14 March 2013.

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hear both parties before it renders any decision and our obligation to hold the Tribunal’s proceedings in public.

A. The principle of audi alteram partem

6. The Tribunal must comply with the highest standards of international criminal procedure.10 Indeed, it is “the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made.”11 This principle of “hearing the other side” (audi alteram partem) is recognized in all legal systems of the world, including in Lebanon.12 It is underpinned by a number of considerations. One is the potential for judicial error caused by an absence of arguments.13

Another is the acceptance of judicial decisions both by the parties involved and the public in general.14 These reasons have been summarized in the following way:

The task of the courts to render a final judgment with respect to a specific factual situation cannot normally be resolved without hearing those concerned. Hearing them is therefore the precondition for achieving a correct decision. Moreover, a person’s dignity requires that his rights are not disposed of summarily by the authorities; an individual should not just be the object of a

10 Art. 28(2) STL St.

11 ICTY, Prosecutor v Jelisić, IT-95-10-A, Judgement, 5 July 2001, para. 27.

12 See Arts 372, 373 Lebanon, Code of Civil Procedure.

13 See UK, Chancery Division, John v Rees, [1970] Ch 345 (1968), Megarry J, p. 402: “It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start’. ‘Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

14 Ibid “Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”; see also UK, House of Lords, Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 (2009), Lord Phillips, p. 355: “The point goes further. Resentment will understandably be felt, not merely by the controlee but by his family and friends, if sanctions are imposed on him on grounds that lead to his being suspected of involvement in terrorism without any proper explanation of what those grounds are. Indeed, if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.”

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judicial decision, rather, he should have his say before a decision affecting his rights is rendered so as to bear upon the proceedings and their outcome.15

7. However, the audi alteram partem principle is not without exceptions. Indeed, we have previously decided in this very matter that ex parte proceedings are appropriate under certain limited circumstances. We have held that the participation by Mr El Sayed in the assessment of whether disclosing to him information related to certain individuals could put them at risk would have defeated the whole purpose of the risk assessment.16 More generally, this follows the approach of Rules 116, 1 17 and 118 which explicitly permit ex parte proceedings in cases where a party seeks to be relieved of certain .disclosure obligations for one of the important reasons set out in these Rules.17

8. The issue before us is whether the three documents in question are ultimately subject to disclosure to Mr El Sayed. Granting Mr El Sayed access to the documents in order for him to comment on their content would run counter to the object of the litigation and render it meaningless. We thus reject his complaints in this regard.18 However, in this specific case, there are no exceptional reasons that warrant full exclusion of Mr El Sayed from the entire appellate process for any of the reasons provided in Rules 116 to 118. For one, Mr El Sayed knows that there is an ongoing disclosure process and that the Prosecutor might seek to withhold certain material from disclosure. Furthermore, Mr El Sayed could and did raise

15 Germany, Bundesverfassungsgericht [Federal Constitutional Court], BVerfGE 9, 89(95). “Die Aufgabe der Gerichte, über einen konkreten Lebenssachverhalt ein abschließendes rechtliches Urteil zu fällen, ist in aller Regel ohne Anhörung der Beteiligten nicht zu lösen. Diese Anhörung ist daher zunachst Voraussetzung einer richtigen Entscheidung. Darüber hinaus fordert die Wurde der Person, daß über ihr Recht nicht kurzerhand von Obrigkeits wegen verfügt wird; der einzelne soll nicht nur Objekt der richterlichen Entscheidung sein, sondern er soll vor einer Entscheidung, die seine Rechte betrifft, zu Wort kommen, um Einfluß auf das Verfahren und sein Ergebnis nehmen zu konnen.”

16 STL, In the matter of El Sayed, CH/AC/2012/02, Decision on Partial Appeal by Mr El Sayed Against Pre-Trial Judge’s Decision of 8 October 2012, 23 November 2012 (“Decision of 23 November 2012”), para. 12.

17 Rule 116 STL RPE: prejudice to ongoing or future investigations; potential of grave risk to the security of a witness or his family; or any other reasons that may be contrary to the public interest or the rights of third parties; Rule 117: the security interests of a State or international entity; Rule 118: failure to obtain the consent of an information provider to disclose that information.

18 See El Sayed Response, paras 9-11.

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arguments that are not strictly related to the content of the documents. We note that this was also the position of the Prosecutor.19

B. The principle of publicity

9. We have explained in previous decisions that our Statute and Rules require all proceedings before the Tribunal to be held in public, unless otherwise determined by a Chamber:

“We are mindful of and emphasize the need for transparency in the proceedings before this Tribunal, especially considering that the accused are entitled to a “fair and public hearing” under Articles 16(2) and 20(4) of the Statute. Rules 96 and 136 of the Rules reflect this important principle and permit exceptions only in specific and limited circumstances. Confidential submissions and decisions–although sometimes necessary–by their very nature conflict with this policy of openness. They should be kept to a minimum and can only be justified for exceptional reasons, which may include the protection of victims and witnesses and the safeguarding of a continuing investigation by the Prosecutor.”20

Even though we set out these principles in the framework of the Ayyash et al proceedings–a criminal trial–they should also find application in the matter before us, which we have held is “a civil or administrative one.”21 Accordingly, while the content of the three documents at issue must be kept confidential, both with respect to Mr El Sayed and with respect to the public, there is no reason to keep the existence of the litigation confidential. In addition to ordering the redactions of the underlying documents, we will therefore also issue a public version of the decision, keeping any redactions to an absolute minimum.

19 Appeal, para. 30.

20 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Corrected Version of Decision on the Pre-Trial Judge’s Request Pursuant to Rule 68(G), 29 March 2012, para. 12; see also Decision of 23 November 2012, para. 12.

21 Decision of 19 July 2011, para. 28; see also STL, In the matter of El Sayed, CH/AC/2010/02, Decision of Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, para. 70: “[Mr El Sayed’s] application must be considered in accordance with the dictates of Rule 3, including international standards of human rights and general principles of international criminal law and procedure, and in the light of the spirit of the Statue and rules.”

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II. Admissibility of tbe Appeal

A. WhethertheAppealwasfiledoutoftime

10. The Prosecutor filed his Appeal on 7 February 2013, almost one month after the Impugned Decision. He argues that the Appeals Chamber has set no time limits for the filing of appeals in the El Sayed matter. If, however, the Appeal were considered out of time, it could still be accepted under Rule 9 of the Rules because good cause exists to do so.22 Mr El Sayed did not respond on this issue.

11. We have previously clarified that “[a]lthough the current proceedings fall outside the literal scope of the Rules, we wish to maintain focus on the fairness and efficiency of proceedings.”23 The Prosecutor should have therefore adhered to the time limits that the Rules provide for comparable appeals. We note that under Rule 126(E) of the Rules an appeal must be filed within seven days after certification to appeal is granted. We hold that from now on this time limit should also apply to all appeals in this matter. This includes both appeals where certification is necessary and those where it is not.

12. Even in the absence of specific time limits, we are of the view that the Prosecutor should have acted more expeditiously in filing this appeal. Nevertheless, we condone this otherwise late filing and admit the appeal because this is the first time in this matter that we have clarified the proper time limit for filing an appeal in these proceedings. While the Prosecutor should have been more diligent, we will not permit the lack of clarity until now to disadvantage him.24

B. Whether the Prosecutor could appeal without seeking certification

13. The Prosecutor argues that his appeal is admissible without having obtained certification from the Pre-Trial Judge.25 He submits that even though the Pre-Trial


23 Decision of 19 July 2011, para. 20.

24 See ICTY, Prosecutor v Marijačić and Rebić, IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 14.

25 Appeal, paras 11-14.

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Judge “did not order disclosure in the Impugned Decision, he did deal finally with the Documents, as Rule 111 was the only basis for their non-disclosure on which the Prosecutor sought the guidance of the Pre-Trial Judge.”26

14. We recall that an appeal in this matter can be brought before our Chamber without certification if it “potentially deals finally” with Mr El Sayed’s application for disclosure of documents. Otherwise, certification is required.27 We must therefore determine whether the Impugned Decision can be classified as final or merely interlocutory.

15. On a preliminary note, we dismiss the Prosecutor’s argument that he has a right to appeal the Impugned Decision because of its impact on the application of Rule 111.28 Whether or not “[c]larification by the Appeals Chamber on the proper application of this exception is [...] necessary” is irrelevant for determining whether it is a final decision (permitting immediate access to the Appeals Chamber) or not (requiring certification by the Pre-Trial Judge).

16. However, we agree with the Prosecutor that in any event, the Impugned Decision for all intents and purposes was final.29 We held previously that any decision of the Pre-Trial Judge ordering the disclosure of documents is final because “once the documents are disclosed there is nothing more to decide.”30 While it could be argued that the Pre-Trial Judge has only decided that the documents do not fall under Rule 111 and has not ordered their disclosure, it is clear that, in the absence of other reasons for non-disclosure, the Pre-Trial Judge would make such an order based on his reasoning in the Impugned Decision. It would be overly formalistic and not in the interests of judicial economy to require another decision of the Pre-Trial Judge when


27 STL, In the matter of El Sayed, CH/AC/2012/03, Decision on the Prosecutor’s Partial Appeal of the Pre-Trial Judge’s Order of 20 February 2012, 18 April 2012 (“Decision of 18 April 2012”), para. 15 (with further references to our previous decisions); see also Decision of 23 November 2012, para. 5.



30 STL, In the matter of El Sayed, CH/AC/2012/02, Order Allowing in Part and Dismissing in Part the Appeal by the Prosecutor Against the Pre-Trial Judge’s Decision of 2 September 2011 and Ordering the Disclosure of Documents, 7 October 2011, para. 5; see also Decision of 18 April 2012, para. 15.

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it is obvious what such decision would be. The Appeal therefore did not require certification of the Impugned Decision.

C. Whether the Prosecutor was otherwise barred from bringing the Appeal

17. Mr El Sayed argues that the Prosecutor is barred from bringing the appeal because the Prosecutor had previously considered that the documents in question did not fall under Rule 111 and had now reconsidered his position. Mr El Sayed specifically relies on the doctrine of estoppel.31 The Prosecutor responds that this doctrine does not apply in the present case.32

18. We first note that the procedural background of this litigation is complicated.33 Part of the difficulty stems from the fact that the Prosecutor has taken seemingly contradictory positions throughout the proceedings with respect to the three documents. Indeed, when ordered by the Pre-Trial Judge to submit to him “those documents that could be disclosed [to Mr El Sayed]”34 the Prosecutor initially submitted the three documents, arguing that they “contained Rule 111 discussions expressed such that they amount to ‘admissions of fact’ disclosable pursuant to the Appeals Chamber Decision of 19 July 2011.”35 Subsequently, there was extended litigation on certain aspects of the disclosure process, which extended to the filing of appeals before us. However, the three documents were never the subject of these disputes.36 It was only a year after the Prosecutor’s submission that the documents could be disclosed, and after having been ordered to disclose remaining materials

31 El Sayed Response, paras 18-21.

32 Prosecutor Reply, paras 2, 5-15.

33 We refer to the procedural history provided by the Impugned Decision for a detailed overview, Impugned Decision, para. 7.

34 STL, In the matter of El Sayed, CH/PTJ/2011/17, Order for Enforcement of the Appeals Chamber Decision of 19 July 2011, 17 October 2011, Disposition.

35 STL, In the matter of El Sayed, CH/PTJ/2011/17, Prosecution’s Submissions Following the Pre-Trial Judge’s Order for Enforcement of the Appeals Chamber Decision of 19 July 2011, 15 November 2011, para. 11.

36 See Impugned Decision, para. 7.

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in his possession,37 that the Prosecutor changed his opinion and asked the Pre-Trial Judge to now confirm that the documents need not be disclosed.38 He did so without mentioning that he had submitted the very same documents a year before and consequently without indicating any reason why his views on the status of these documents were now different.39 In this regard, we share the Pre-Trial Judge’s surprise at the Prosecutor’s request.40

19. However, we find that the Prosecutor’s change of position with respect to the three documents and his tardiness in informing the Pre-Trial Judge about it did not bar him from making his request. Mr El Sayed’s reliance on the doctrine of estoppel is misplaced in this regard. First of all, Mr El Sayed fails to explain on which elements of this doctrine he is relying. Indeed, the doctrine of estoppel is legally complex, viewed differently by different legal systems, and its precise application depends on a number of factors.41 We find it unnecessary to decide whether it is applicable in proceedings related to the disclosure of documents. That is because there is no evidence that Mr El Sayed acted in some manner on the basis of the Prosecutor’s initial position.

20. No principle was cited to us and, with one exception, we are not aware of one, which in the absence of such evidence would prevent the Prosecutor from reviewing his original decision. The exception is the common law principle of estoppel by deed-where a person who has entered into a solemn engagement by deed is not permitted to deny any matter asserted in it and no subsequent conduct or other act of

37 STL, In the matter of El Sayed, CH/PTJ/2012/04, Decision Setting a Deadline for the Prosecutor to Disclose to Mr El Sayed the Documents Mentioned in the Pre-Trial Judge’s Order of 21 May 2011, 8 October 2012, para. 13. The title of the Impugned Decision initially contained an error, which was later on corrected, see STL, In the matter of El Sayed, CH/PTJ/2012/05, Corrigendum to the “Decision Setting a Deadline for the Prosecutor to Disclose to Mr El Sayed the Documents Mentioned in the Pre-Trial Judge’s Order of 21 May 2011”, 11 October 2012.

38 STL, In the matter of El Sayed, OTP/PTJ/2012/10, Prosecution’s Submissions on the Status of Certain Documents, Confidential and Ex Parte, 1 November 2012 (“Prosecution Submissions of 1 November 2012”), paras 14-15

39 Prosecution Submissions of l November 2012.

40 Impugned Decision, paras 9, 12.

41 See UK, Queens Bench, McIlkenny v Chief Constable, [1980] 1 QB 283, Lord Denning, p. 317 (identifying at least 11 different types of estoppel).

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reliance by the party invoking the estoppel is required.42 But here there was no such formality; the Prosecutor did no more than file a submission stating that the three documents in question constituted “‘admissions of fact’ disclosable pursuant to the Appeals Chamber Decision of 19 July 2011.”43

21. Estoppel by deed aside, the authorities we have examined require either subsequent conduct or other acts of reliance by the party invoking the estoppel or unconscionability.44 For example, if waiver is asserted,45 the operative principle entails that if

[...] a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights [of the other party] [...] will not be enforced [and if] [...] it would be inequitable having regard to the dealings which have thus taken place between the parties [the person seeking to enforce those rights will not be allowed to enforce them].46

22. The same applies, if Mr El Sayed seeks to rely on estoppel by election, namely, that the Prosecutor had intentionally exercised a choice between two inconsistent alternatives (i.e. stating that the documents should be disclosed) that now bars the Prosecutor from benefiting of the alternative not selected (i.e. disputing that the documents should be disclosed.) 47 That is because estoppel by election also presumes that the other party (i.e. Mr El Sayed) relied on the choice made and through the changed position would now suffer prejudice.48 We note that while claiming that the Prosecutor’s change of position was to his detriment,49 Mr El Sayed fails to substantiate any harm he suffered as a result of the Prosecutor’s actions. Indeed, Mr

42 UK, Chancery Division, PW & Co v Milton Gate Investments Ltd, [2004] 1 Ch 142, (30 June 2003) Neuberger J pp 148-9.

43 Prosecution’s Submissions of 15 November 2011, para 11.

44 UK, Chancery Division, PW & Co v Milton Gate Investments Ltd, [2004] 1 Ch 142, (30 June 2003) Neuberger J pp 149-159, 195, 205, 209-211, 221-222, 227.

45 See, e g, UK, Queens Bench, Brikom Investments Ltd v Carr, [1979] 1 QB 467, (1979) Roskill L.J, pp 488-9.

46 UK, House of Lords, Hughes v Metropolitan Railway Co, (1877) 2 App Cas 439 (5 June 1877), Lord Cairns, p. 448.

47 See UK, Privy Council, Meng Leong Ltd v Jip Hong Ltd, [1985] 1 AC 511 (1984), p. 521.

48 Ibid

49 El Sayed Response, para. 21.

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El Sayed could hardly rely on any position of the Prosecutor in this regard given that Mr El Sayed was unaware of the content of the documents.

23. We therefore find that the Prosecutor was not prevented from retracting his initial characterization of the documents and dismiss Mr El Sayed’s arguments in this respect. However, we remain puzzled as to why the Prosecutor’s reassessment of the three documents would have taken so long. We note that neither the Pre-Trial Judge nor the Appeals Chamber were given any explanations in this regard. We have stated previously that the Prosecutor should meet his disclosure obligations in this matter swiftly and without further delay.50 We remind him again of the importance of finalizing disclosure in this case and urge him to do so expeditiously with respect to any outstanding documents.

III. Merits of the Appeal

24. The question before us is whether the Pre-Trial Judge erred when he found that the three documents in the possession of the Prosecutor were “admissions of fact within the meaning of the [Appeals Chamber’s] Decision of 19 July 2011”. We conclude that he did and thus reverse the Impugned Decision.

A. The standards set out by the Appeals Chamber

25. In the Decision of 19 July 2011, we recalled that Rule 111 grants an exception from the general disclosure obligation under Rule 113, which requires the Prosecutor to disclose to the Defence”[...] any information in his possession or actual knowledge, which may reasonably suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecutor’s evidence.”51 Rule 111 provides:

Reports, memoranda, or other internal documents prepared by a Party, its assistants or representatives in connection with the investigation or preparation of a case are not subject to disclosure or notification under

50 Decision of 18 April 2012, para. 44.

51 See Decision of 19 July 2011, paras 76-78.

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the Rules. For purposes of the Prosecutor, this includes reports, memoranda, or other internal documents prepared by the UNIIIC or its assistants or representatives in connection with its investigative work.

We concluded that under the terms of the Rule “correspondence exchanged between the UNIIIC and the Lebanese Prosecutor-General constitutes such ‘internal’ documents, to the extent the correspondence pertains to the coordination of a unitary criminal investigation.”52

26. However, we also clarified that Rule 111 is not without its limits. We held as follows:

“99. Each of Rules 111 and 113 contains an expression of important public policy.

100. That of Rule 111 is predominantly to allow uninhibited discussion among those representing one Party when considering what decisions to make. The high interest of freedom of expression to be found across the jurisprudence is an expression of this point. Candour is vital to quality. The major focus of Rule 111 material is on opinion.

101. Rule 113, by contrast, is concerned essentially with fact. It is exculpatory fact that forms the essential policy of Rule 113. There is therefore in general a complementarity [sic] between the two Rules.

102. There is however the possibility that Rule 111 discussion will be expressed (i) in such a categorical manner; (ii) by a decision maker; (iii) in such circumstances as to suggest that what occurs “in-house” is properly to be categorized as admission of fact. At that point the Rule 111 shield disappears and is replaced by the Rule 113 obligation (subject of course to its limitations laid down in Rules 116 to 118).

103. A further point is whether “guilt or innocence” in Rule 113 refers not only to the crime alleged by Mr. El Sayed that others have made false evidence, but also to the original suspicion of Mr. El Sayed’s implication in the assassination (a matter that is not at present germane to the adjudicatory power of this Tribunal, in view of the 2009 statement by the Prosecutor that he was not preferring any charge against Mr. El Sayed for that assassination).


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104. Such distinction is one without difference. These are opposite sides of the same coin. Mr. El Sayed’s assertion is of innocence on his part of assassination; that is part of his assertion of criminality on the part of the alleged “false witnesses”.

105. In short, if in the course of discourse of persons whose conduct is attributable to a Party in terms of Rule 111 there is (i) unambiguous acceptance; (ii) by a decision maker; (iii) which is fairly to be characterised as a decision as to relevant guilt or innocence, the Rule 111 discussion is lifted into the Rule 113 category and must be disclosed unless any of Rules 116 to 118 applies.”53

27. We stress that the issue before us is not one of “clarification” / “interpretation” or even “reconsideration” of our previous decision. Rather, it is one of “application” of our case-law to a set of documents. Hence, we are asked to determine whether the Pre-Trial Judge erred in concluding that the documents were not covered by the disclosure exception of Rule 111. In other words, the Appeals Chamber is not deciding once again on the applicable law, namely, the scope of the 4 exception under Rule 111. Indeed, we have already done so,54 having had the assistance of both the Prosecutor and Mr El Sayed who provided us with their views on this precise legal issue.55 There is no need to reopen that discussion. What we must do now is review the three documents and decide whether they fall under the exception or not.

B. The application of these standards to the three documents in question

28. Before reviewing each of the three documents individually, we note that the Pre-Trial Judge appears to have based his analysis on an overly broad reading of the Decision of 19 July 2011. We recall that any exceptions to Rule 111 must be narrow in nature and may not serve to undermine the purpose of the Rule, namely,

53 Decision of 19 July 2011, paras 99-105.

54 Decision of 19 July 2011.

55 See STL, In the matter of El Sayed, CH/PTJ/2010/01, Partial Appeal of the Pre-Trial Judge’s Decision on the Disclosure of Materials from the Criminal File of Mr El Sayed of 12 May 2011, 20 May 2011; STL, In the matter of El Sayed, CH/AC/2011/01, Prosecution’s Response to “Partial Appeal of the Pre-Trial Judge’s Decision on the Disclosure of Materials from the Criminal File of Mr El Sayed of 12 May 2011”, 10 June 2011; STL, In the matter of El Sayed, CH/AC/2011/01, Reply to the “Prosecution’s Response to ‘Partial Appeal of the Pre-Trial Judge’s Decision on the Disclosure of Materials from the Criminal File of Mr El Sayed of 12 May 2011’”, 21 June 2011.

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to protect the free exchange of ideas and an open discussion within the Prosecutor’s or Defence counsel’s teams. Conversely, disclosure obligations under Rule 113 only arise if exculpatory facts are in play. In the context of Rule 111, this means that not every “admission of fact” will make the shield of Rule 111 disappear. As we have explained, only “if in the course of discourse of persons whose conduct is attributable to a Party in terms of Rule 111 there is (i) unambiguous acceptance; (ii) by a decision maker; (iii) which is fairly to be characterised as a decision as to relevant guilt or innocence, the Rule 111 discussion is lifted into the Rule 113 category and must be disclosed unless any of Rules 116 to 118 applies.”56

29. In this regard, we reject the Prosecutor’s argument, opposed by Mr El Sayed,57 that the Decision of 19 July 2012 is “ambiguously drafted” and that the “Appeals Chamber has articulated two distinct versions of the exception” to Rule 111.58 As the Prosecutor elsewhere concedes, the relevant paragraphs of the Decision cannot be read in isolation. In particular, paragraph 105 of that Decision, as set out above, is the summary of the Appeals Chamber’s discussion in the previous paragraphs. As such, the Decision must be read in totality.

[REDACTED]59

30. [REDACTED]

31. [REDACTED] This was an error. [REDACTED] does not turn them into admissions of fact. We recall that when we referred to Mr El Sayed’s “guilt or innocence” we meant his assertion that he was innocent of the attack of 14 February 2005 which killed former Prime Minister Hariri, and that he was wrongly accused by the alleged “false witnesses” of involvement in the attack.60 It would therefore go too far to describe [REDACTED]61 [REDACTED]. We stress once again that

56 Decision of 19 July 2011, para. 1 05.

57 El Sayed Response, para. 14.

58 Appeal, paras 17, 18 (referring to paras 102 and 105 of the Decision of 19 July 2011 ); see also paras 3, 4.



61 [REDACTED]

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any exceptions to Rule 111 must be construed narrowly lest the benefits of the Rule vanish.

[REDACTED]

32. [REDACTED]

33. The Pre-Trial Judge found that this [REDACTED] was “nevertheless a categorical statement on the subject of innocence or guilt, in particular that of the Applicant, carried out by a decision maker” and was “[i]n this sense [...] an admission of fact.”62 Again, this was an error. [REDACTED] the [REDACTED] intention was not to express an opinion of guilt or innocence [REDACTED].

C. Conclusion

34. The three documents are protected under Rule 111. The Pre-Trial Judge erred when he held that they were not. His decision is accordingly reversed.


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DISPOSITION

FOR THESE REASONS;

THE APPEALS CHAMBER unanimously;

FINDS the Appeal admissible;

REVERSES the Impugned Decision;

FINDS that the three documents are protected under Rule 111;

ORDERS the Pre-Trial Judge to file a public redacted version of the Impugned Decision, applying the redactions as undertaken by the Appeals Chamber in the Interim Order, Annex B;

ORDERS the Prosecutor to file public redacted versions of the Prosecution Submissions of 1 November 2012 and the Appeal, applying the redactions as undertaken by the Appeals Chamber in the Interim Order, Annexes A and C.

Done in Arabic, English and French, the English version being authoritative.

Dated 28 March 2013, Leidschendam, the Netherlands.

Judge David Baragwanath Presiding

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Title: Decision on Appeal by Legal Representative of Victims against Pre-Trial Judge’s Decision on Protective Measures

Short title: Total Anonymity of Victims AC

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THE APPEALS CHAMBERCase No.: STL-11-01/PT/AC/AR126.3Before: Judge David Baragwanath, Presiding

Judge Ralph Riachy Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko Judge Ivana Hrdličková

Registrar: Mr Herman von HebelDate: 10 April 2013Original language: EnglishType of document: Public

THE PROSECUTOR v.



DECISION ON APPEAL BY LEGAL REPRESENTATIVE OF VICTIMS AGAINST PRE-TRIAL JUDGE’S DECISION ON

PROTECTIVE MEASURES


Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan Mr Emile Aoun

Legal Representatives of Victims: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra

Counsel for Mr Mustafa Amine Badreddine: Mr Antoine Korkmaz Mr John Jones

Counsel for Mr Hussein Hassan Oneissi: Mr Vincent Courcelle-Labrousse Mr Yasser Hassan


Counsel for Mr Assad Hassan Sabra: Mr David Young Mr Guénaël Mettraux

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Total Anonymity of Victims AC

INTRODUCTION

1. The Legal Representative of Victims (“LRV”) has seized us with an appeal against a decision of the Pre-Trial Judge relating to protective measures for victims participating in the proceedings (“VPPs”).1 The Appeal is directed against the Pre-Trial Judge’s holding that VPPs may not participate anonymously.2 The LRV requests us to reverse this holding and exempt him from disclosing the identities of VPPs to the Defence and the Prosecutor.

2. We hold by majority, Judges Riachy and Nsereko dissenting, that the Appeal is admissible. However, we unanimously dismiss the Appeal, and affirm the Pre-Trial Judge’s decision that VPPs cannot remain totally anonymous.

BACKGROUND

3. In his first Decision on Victim’s Participation in the Proceedings, the Pre-Trial Judge granted VPP status to 58 applicants, and invited those VPPs who wished to remain anonymous or seek other protective measures to submit a request to that end to the Pre-Trial Judge.3 A further 10 victims were later granted VPP status.4 The LRV submitted three requests in which a number of VPPs requested the non-disclosure of their identities not only vis-à-vis the public but also vis-à-vis the Parties for the duration of the proceedings and after final judgment (“total anonymity”).5 The Pre-

1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, Appeal of the Legal Representative of Victims Against the Decision of the Pre-Trial Judge Refusing Protective Measures, 8 February 2013 (“Appeal”), para. 2. All further references to filings and decisions relate to this case number unless otherwise stated.

2 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the Legal Representative of Victims’ First, Second and Third Motions for Protective Measures for Victims Participating in the Proceedings, 19 December 2012 (“Impugned Decision”), para. 27, Disposition; see Appeal, paras 2, 74-75.

3 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims’ Participation in the Proceedings, 8 May 2012 (“Decision on Victims’ Participation”), para. 131.

4 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Second Decision on Victims’ Participation in the Proceedings, 3 September 2012; Third Decision on Victims’ Participation in the Proceedings, 28 November 2012.

5 STL, Prosecutor v Ayyash et al. STL-11-01/PT/PTJ: First Motion of the Legal Representative of Victims for Protective Measures (Anonymity) of Seventeen Victims Participating in the Proceedings, 29 October 2012; Second Motion of the Legal Representative of Victims for Protective Measures (Anonymity) of Six Victims Participating in the Proceedings, 2 November 2012; Third Motion of the Legal Representative of Victims for

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Trial Judge declined to recognize the validity of total anonymity as a protective measure and found that it was not available under the Statute and Rules of Procedure and Evidence (“Rules”).6 The LRV obtained certification to appeal this decision in relation to this specific issue.7 He now challenges the Pre-Trial Judge’s finding on appeal.8 The Prosecution9 and counsel for Messrs Sabra10 and Badreddine11 responded, disputing the LRV’s standing to bring the appeal, and arguing that total anonymity should be refused or otherwise strictly limited. The LRV filed a request for leave to reply, attaching the reply at the same time.12 The Victims’ Participation Unit (“VPU”) made submissions supporting the availability of total anonymity.13

Protective Measures (Confidentiality) of Eight Victims Participating in the Proceedings, 2 November 2012.

6 Impugned Decision, paras 22-27.

7 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the Motion of the Legal Representative of Victims Seeking Certification to Appeal the Decision of 19 December 2012 on Protective Measures, 30 January 2013 (“Certification Decision”), paras 24-26. Before certification was granted, the Pre-Trial Judge asked the LRV to identify the VPPs on whose behalf he had filed the motion for certification (STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Interim Order on the Motion of the Legal Representative of Victims Seeking Certification to Appeal the Decision of 19 December 2012 on Protective Measures, 18 January 2013). The LRV clarified that he was seeking to bring the appeal on behalf of all current VPPs (STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Notice of the Legal Representative of Victims Pursuant to the Pre-Trial Judge’s Interim Order of the 18 January 2013, 24 January 2013).

8 Appeal, para. 2.

9 Prosecution Response to the Legal Representatives of Victims Appeal against the Decision of the Pre-Trial Judge Refusing Protective Measures, 28 February 2013 (“Prosecutor’s Response”).

10 Sabra Response to the Appeal of the Legal Representative of Victims against the Decision of the Pre-Trial Judge Refusing Protective Measures, 26 February 2013 (“Sabra Response”).

11 Response of the Badreddine Defence to the Appellate Brief of the Legal Representative of Victims against the Pre-Trial Judge’s Decision Refusing to Grant Protective Measures, 28 February 2013 (“Badreddine Response”).

12 Application for Leave to Reply and Consolidated Reply of the Legal Representative of Victims to the Responses of the Prosecution and Counsel for Sabra and Badreddine to his Appeal against the Decision of the Pre-Trial Judge Refusing Protective Measures, 8 March 2013 (“Application for Leave to Reply”).

13 Submission from the Victims’ Participation Unit on Protective Measures for Victims Participating in the Proceedings, Confidential and Ex Parte, 1 March 2013 (“VPU Submission”). A public redacted version was filed the same day. The Registrar had previously sought leave on behalf of the VPU to file submissions (Registrar’s Request to Permit Submissions from the Victims’ Participation Unit Regarding Victim Anonymity, 1 February 2013), which we granted (Order on Submissions from the Victims’ Participation Unit, 12 February 2013).

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DISCUSSION

I. The LRV’s reply

4. More than seven days after the filing of the responses to his Appeal, the LRV filed a request for leave to file a reply, together with the proposed reply. We note that Rule 8 (B) of the Rules was recently amended and now requires that any request for leave to file a reply must be filed within two days of the response. Given that the responses were submitted before the Rule change, we find that the old version of the Rule—which did not contain a time limit for the filing of the request—applied and the request was not made out of time.14

5. However, it was improper for the LRV to attach the substance of his reply to the request seeking leave to file it. While the practice at other courts has not been consistent in this regard, we find that it would be a circumvention of Rule 8 (B) if counsel in effect places the reply on the case-record despite not having been granted leave to do so.15 In the future, unless otherwise ordered, counsel should wait for the Chamber’s decision to grant leave—based on the reasons offered by counsel in the request for leave— before filing the reply.

6. Nevertheless, in the present case, in the interests of judicial economy, we exceptionally turn to the question of whether leave should be granted on the basis of the grounds outlined in the substantive part of the LRV’s application.16 We first must look to the applicable standard for granting leave to reply. We have held that a reply “must generally be limited to circumstances where new issues arise of the respondent’s brief” and that it “is not a vehicle for an appellant to simply reiterate or refine arguments made in the appeal”.17 With respect to the issue of whether the

14 The amended version of the Rules entered into force on 6 March 2013.

15 See ICTY, Prosecutor v. Milutinović et al., IT-05-87-T, Order Re Exhibit 5D1312, 22 April 2008, para. 3 (referring to the Chamber’s general order that a “request for leave to file a reply should not include the substance of the reply, which should await the decision of the Chamber upon whether to grant such leave”).

16 See Application for Leave to Reply, para. 1 (requesting leave on the basis of the substantive grounds set out in the reply).

17 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Order on Defence Request for Leave to File a Reply, 8 October 2012 (“Order on Reply”), para. 3; see also STL, In the matter of El Sayed, CH/AC/2012/01,

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LRV has standing to file an appeal, the response did not raise this as a new issue. Indeed, the LRV devoted some four pages to the issue in his Appeal.18 Leave to reply is rejected in this regard.19 Likewise, the LRV’s assurances that he will not seek anonymity for VPPs who intend to present evidence are repetitive of his Appeal and do not warrant the filing of a reply.20 While not addressed in his Appeal, the LRV’s remaining arguments21 are also not responding to a new issue—the LRV’s failure to make arguments in this regard in the Appeal does not justify filing a reply.22 In sum, we do not grant leave for filing the reply.

II. Admissibility of the Appeal

7. The LRV argues that the VPPs have standing to file an appeal before the Appeals Chamber.23 He submits that Rule 126 of the Rules should be construed as encompassing the possibility for VPPs to seek and receive certification to appeal a decision if such a decision relates to the VPPs’ personal interests.24 The Prosecutor and counsel for Mr Sabra submit that the VPPs have no standing to lodge interlocutory appeals.25 Counsel for Mr Badreddine do not object to the admissibility of the Appeal because the Impugned Decision directly affects the VPPs personal interests in the proceedings. However, they caution against a too flexible interpretation of Rule 126.26

8. At the outset, we reject the LRV’s argument that his Appeal is admissible because neither the parties nor the Pre-Trial Judge raised any objections to his request

Order on Request by Mr El Sayed for Leave to File a Reply, 7 November 2012 (with further references).


19 Application for Leave to Reply, paras 13-22.

20 See Appeal, para. 60; Application for Leave to Reply, para. 28.

21 Application for Leave to Reply, paras 23-27.

22 Order on Reply, para. 3.



25 Sabra Response, para. 6; Prosecutor’s Response, para. 4.

26 Badreddine Response, paras 3-4.

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for certification of the Impugned Decision.27 Whether a matter is properly before the Appeals Chamber is not a decision for the parties or the Pre-Trial Judge. Indeed, we have to verify in each and every appeal that we have jurisdiction to hear it. It is therefore also irrelevant that the Prosecutor and counsel for Mr Sabra—despite their argument that the LRV has no standing to bring his Appeal—do not object to the Appeals Chamber taking a decision on the merits.28

9. We recall that under our Rules, interlocutory decisions are not subject to an automatic right of appeal. Indeed, an appeal against such decisions may only be filed if this right is explicitly granted in the Rules or if certification to appeal is given by the first instance Judge or Chamber. In the instant case, the Rules do not provide for an automatic right of the VPPs to appeal against decisions on their protective measures. While the Pre-Trial Judge granted the VPPs certification under Rule 126 (C) of the Rules upon the LRV’s request, Rule 126 (E) makes it clear that only a “Party” may appeal to the Appeals Chamber once certification is given. Rule 2 defines “Party” as the “Prosecutor or the Defence”. Under its express wording, Rule 126 (E) therefore does not make provision for an appeal by the LRV.

10. However, we hold by majority that Rule 126 (E) is exceptionally applicable by analogy to allow for a narrow right to an interlocutory appeal of the VPPs in strictly confined circumstances and only after obtaining certification. Judges Riachy and Nsereko dissent from this holding and from the following part of this decision relating to admissibility.

11. We are mindful that the jurisdiction of the Appeals Chamber is limited by the Statute and Rules. Specifically, there can be no right of appeal if it was the express intention of the drafters to exclude it.29 We find however that Rule 126 is ambiguously drafted, creating a lacuna in the Rules that needs to be addressed in order to do justice.


28 Prosecutor’s Response, para. 8; Sabra Response, para. 8.

29 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012 (“Jurisdiction Decision”), para. 17.

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12. As pointed out by the LRV,30 Rule 126 (A) on the one hand refers to “all motions”,31 which presumably includes motions filed not only by the parties but also by the LRV, if granted permission to do so. Rule 126 (B) then refers to the right of a party to “apply by motion for appropriate ruling or relief”. Rule 126 (C) does not contain this limitation but states that “[d]ecisions on all motions under this Rule are without interlocutory appeal save with certification […]”. Rule 126 (E) then again refers to “a Party” that may appeal. This apparent inconsistency can be explained by the fact that Rule 126 is essentially based on the nearly identical Rule 73 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”). Unlike before this Tribunal, however, the ICTY does not give victims a right to participate in the proceedings. While Rule 73 therefore is clear in the ICTY context, Rule 126 is less so in our proceedings.

13. To resolve this ambiguity, we must first look at the Rules to verify whether they otherwise explicitly permit or prohibit appeals by the VPPs. We note that the Rules do not contain any general provision that would exclude a right of the VPPs to lodge interlocutory appeals. On the contrary, Rule 86 (C) grants an appeal as of right to any unsuccessful applicant for the status of VPP against the decision of the Pre-Trial Judge denying them that status. Moreover, Rule 86 (D) specifically prohibits appeals against decisions relating to the grouping of victims in the proceedings. Argumentum e contrario, if the drafters of the Rules had believed that VPPs did not have a general right to file interlocutory appeals, the express prohibition of Rule 86 (D) in relation to one specific matter would not have been necessary. In sum, the Rules do not contain any general prohibition of interlocutory appeals by VPPs but do permit appeals by persons seeking to participate as VPPs.

14. We are also guided by the provisions of the Statute. In particular, Article 17 provides that

[w]here the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages


31 “This Rule applies to all motions other than preliminary motions, motions relating to release, and others for which an appeal lies as of right according to these Rules.”

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of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Consistent with this mandate, the Pre-Trial Judge has permitted the LRV to “file […] motions or briefs on any issue that affects the victims’ personal interests”.32 If such filings are permitted, then the LRV should also be allowed to appeal a decision on them, provided that they meet the certification threshold of Rule 126. This is certainly true in relation to matters where the Statute or Rules expressly provide for the LRV to bring the matter before a Judge or Chamber at first instance.33 In particular, it would be unjust to deny the VPPs access to the Appeals Chamber if for instance their rights under Article 17 of the Statute were not given full effect or were unduly limited by the Pre-Trial Judge or the Trial Chamber. Moreover, clarification of the law by the Appeals Chamber ensures that Article 17 is interpreted and applied through all stages of the proceedings in a uniform manner.

15. Neither the Statute nor the Rules define what qualifies as the VPPs “personal interests”. Indeed, whether an issue is relevant to the personal interests of the VPPs is necessarily a highly case-specific inquiry.34 However, for the purposes of whether VPPs have standing to seek appellate review of interlocutory first instance decisions, we hold that such personal interests must necessarily be limited to situations where

32 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the VPU’s Access to Materials and the Modalities of Victims’ Participation in Proceedings before the Pre-Trial Judge, 18 May 2012 (“Decision on Modalities”), para. 31.

33 See, e.g., Rules 133 (A), 87 (A).

34 See ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-925, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, 13 June 2007, para. 28 (“More broadly, any determination by the Appeals Chamber of whether the personal interests of victims are affected in relation to a particular appeal will require careful consideration on a case-by-case basis. Clear examples of where the personal interests of victims are affected are when their protection is in issue and in relation to proceedings for reparations. More generally, an assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor. Even when the personal interests of victims are affected within the meaning of article 68 (3) of the Statute, the Court is still required, by the express terms of that article, to determine that it is appropriate for their views and concerns to be presented at that stage of the proceedings and to ensure that any participation occurs in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”).

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the VPPs’ own interests as participants in the proceedings are fundamentally concerned. We can discern three such specific situations:

• Decisions on applications for status as a VPP (a right of appeal is already provided for under Rule 86 (C)).

• Decisions on the modalities of victims’ participation in the proceedings (such as decisions concerning access of the LRV to documents and decisions on whether victims may call evidence and make submissions).

• Decisions on protective measures for VPPs and the variation of such measures.

16. We also hold that the right to seek appellate review in these limited circumstances does not prejudice the Accused. In the absence of prejudice, we must seek to give full effect to the rights of the victims as mandated by Article 17 of the Statute. In any event, if it were demonstrated that there was such harm, the Appeals Chamber would retain the discretion to reject an appeal on that basis.

17. Both the Prosecutor and counsel for Mr Sabra refer to the case-law of the International Criminal Court (“ICC”) under which participating victims have not been permitted to initiate interlocutory appeals. However, we are not bound by that jurisprudence. Moreover, there are a number of differences between the legal framework of the ICC and that of our Tribunal. For instance, while the ICC does not allow victims to appeal a chamber’s refusal to grant victim status, our Rules explicitly do. Furthermore, we note that while participating victims have never been granted leave to appeal an interlocutory decision at the ICC, this specific issue for that reason has not been addressed conclusively by the ICC Appeals Chamber.

18. In sum, we hold by majority, Judges Riachy and Nsereko dissenting, that the Appeal is admissible in analogy to Rule 126 (E).

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III. Merits of the Appeal

A. Standard of review on appeal

19. In the Impugned Decision, the Pre-Trial Judge held that “before the Tribunal, the total anonymity of VPPs vis-à-vis the Parties for the duration of the proceedings cannot legally be recognised”.35 The LRV contends that this holding was a legal error. We have previously adopted the standard of appellate review applicable to such alleged errors as set out by other international tribunals:

A party alleging an error of law must identify the alleged error, present arguments in support of its claim, and explain how the error invalidates the decision. An allegation of an error of law that has no chance of changing the outcome of a decision may be rejected on that ground. However, even if the party’s arguments are insufficient to support the contention of an error, the Appeals Chamber may still conclude, for other reasons, that there is an error of law. [...] The Appeals Chamber reviews the Trial Chamber’s findings of law to determine whether or not they are correct.36

20. We point out that not every error leads to a reversal or revision of a decision at first instance and that we will only review errors of law that have the potential to invalidate that decision.37

B. Scope of the Appeal

21. The issue certified for appeal by the Pre-Trial Judge concerns the availability of “total anonymity” of VPPs as a valid protective measure38 in proceedings before him. In the Impugned Decision, the Pre-Trial Judge held that total anonymity of VPPs “notionally contravenes the rights of the accused,”39 is inconsistent with Article 25


36 Jurisdiction Decision, para. 10, with references to the case-law of the ICTY, the International Criminal Tribunal for Rwanda (“ICTR”), the Special Court for Sierra Leone (“SCSL”), and the ICC.

37 Jurisdiction Decision, para. 10 (with further references).

38 Certification Decision, paras 24-26.


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of the Statute,40 and is not covered by any other exception in the Rules.41 He thus refused the LRV’s request to consider whether this particular protective measure was merited in relation to individual VPPs.42

22. The Pre-Trial Judge defined total anonymity as the non-disclosure of the identity of VPPs vis-à-vis the parties for the duration of the proceedings.43 This Appeal is therefore not concerned with other measures for the protection of VPPs, such as anonymity vis-à-vis the public or the withholding of their identities from the parties on an interim basis, or with matters related to the general disclosure of information in the possession of the VPPs. Moreover, the only question that was certified for appeal is whether, as a protective measure, VPPs’ identities may be withheld from the parties throughout the proceedings.44 As pointed out by the Prosecutor and counsel for Mr Sabra,45 the LRV attempts to bypass this limitation by framing the question of anonymity as one not relating to the VPPs’ protective measures but rather to their disclosure obligations under Rule 112 bis.46 We find that this goes beyond the grant of certification and dismiss his arguments in this regard.

C. Applicable law

23. The basic principles of victim participation in the proceedings before the Tribunal are set out in Article 17 of the Statute and in Rules 86 and 87 of the Rules. In essence, victims are permitted to express their “views and concerns” throughout all stages of the proceedings if their personal interests are affected. However, this must not prejudice the rights of the accused.

24. The Statute and Rules also require that proceedings before the Tribunal are held in public unless there are exceptional reasons justifying a departure from this



42 Impugned Decision, paras 22, 27, 37.

43 Certification Decision, paras 25-26; see also Impugned Decision, para. 22.

44 Certification Decision, para. 24.

45 Prosecutor’s Response, paras 13-16; Sabra Response, para. 11.

46 Appeal, paras 35-41; see also VPU Submission, paras 10-11.

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principle.47 Article 16 (2) of the Statute makes the entitlement of an accused to a fair and public trial subject to measures ordered by the Tribunal for the privacy and protection of victims and witnesses. Article 12 (4) establishes within the Registry a Victims and Witnesses Unit to “protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses”. Rules 115 and 133 specify certain protective measures available to victims and witnesses, such as interim non-disclosure of the identity of victims and the non-disclosure of the identity of victims to the public and media. Neither the Statute nor the Rules contain any provision explicitly allowing for the total anonymity of victims that exercise their right to be VPPs vis-à-vis the parties.

D. WhetherthePre-TrialJudgeerredwhenfindingthattotalanonymityof VPPs entails prejudice in the proceedings before the Tribunal

25. The Pre-Trial Judge held that “it is not conceivable to convict a person for a crime committed against a VPP who is involved in the trial proceedings and yet, by remaining anonymous, does not allow the accused a full defence”.48 The LRV argues that this was an error.49 He submits that VPPs may choose different degrees of participation in proceedings such as that of an “entirely passive” participant or “silent observer” and argues that some of these desired methods of involvement do not prejudice the Accused if the identity of the victims is not revealed to them.50 Counsel for Messrs Badreddine and Sabra submit that the Pre-Trial Judge did not err.51

47 See, e.g., Arts 16, 20, 23 STL St.; Rules 73, 96, 136 STL RPE; see STL, In the matter of El Sayed, CH/AC/2012/02, Decision on Partial Appeal by Mr El Sayed Against Pre-Trial Judge’s Decision of 8 October 2012, 23 November 2012, para. 12; STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Corrected Version of Decision on the Pre-Trial Judge’s Request Pursuant to Rule 68(G), 29 March 2012, para. 12; STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims’ Participation in the Proceedings, 8 May 2012, para. 129; see also Prosecutor’s Response, para. 9.




51 Badreddine Response, para. 5; Sabra Response, para. 19.

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26. We have noted the references by the LRV and the parties to the relevant practice of the ICC. Indeed, the ICC’s provisions on victim participation are the most comparable to those of the Tribunal.52 ICC Pre-Trial and Trial Chambers have not explicitly prohibited total anonymity of participating victims during trial and have rejected the notion that anonymous victims should never be permitted to participate in the proceedings on the basis of unfairness to the accused.53 Rather, victims are permitted to preserve anonymity unless they desire a degree of participation that would make anonymity incompatible with the rights of the accused.54 ICC Pre-Trial Chambers have applied these principles and have held that they will not permit total anonymity where victims engage in forms of participation that add evidence to the case against the accused (on the basis that this would violate the principle against anonymous accusations) or question witnesses.55 ICC Trial Chambers have not permitted victims to testify as witnesses or to “present their views and concerns” unless they relinquish their anonymity vis-à-vis the parties.56 One Trial Chamber

52 Article 68 (3) ICC St. This provision mirrors Art. 17 STL St. The ICTY, ICTR and SCSL do not give victims participatory rights. The Extraordinary Chambers in the Courts of Cambodia allow participation in a manner more akin to parties civiles in civil law jurisdictions.

53 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1119, Decision on victims’ participation, 18 January 2008, para. 130; ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1191, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims’ Participation of 18 January 2008, 26 February 2008, para. 37; see also ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1556, Decision on the applications by victims to participate in the proceedings, 15 December 2008, paras 126-133; ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1788-tENG, Decision on the Modalities of Victim Participation at Trial, 22 January 2010, paras 92, 93.

54 See ICC, Prosecutor v. Bemba, ICC-01/05-01/08-2027, Second order regarding the applications of the legal representatives of victims to present evidence and the views and concerns of victims, 21 December 2011, para. 19; ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1119, Decision on victims’ participation, 18 January 2008, para. 131; see also ICC, Prosecutor v. Bemba, ICC-01/05-01/08-699, Decision defining the status of 54 victims who participated at the pre-trial stage, and inviting the parties’ observations on applications for participation by 86 applicants, 22 February 2010, paras 27, 31.

55 See ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-462-tEN, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, 22 September 2006, pp. 7-8. This list has been cited in several later decisions; see, e.g. ICC, Prosecutor v. Katanga and Chui., ICC-01/04-01/07-474, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, paras 180-183; see also ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1788-tENG, Decision on the Modalities of Victim Participation at Trial, 22 January 2010, paras 92-93.

56 ICC, Prosecutor v. Bemba, ICC-01/05-01/08-2027, Second order regarding the applications of the legal representatives of victims to present evidence and the views and concerns of victims, 21 December 2011, para. 19; see also, e.g., ICC, Prosecutor v. Bemba, ICC-01/05-01/08-2220, Decision on the presentation of views and concerns by victims a/0542/08, a/0394/08 and a/0511/08, 24 May 2012, para. 12; ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1788-tENG, Decision on the Modalities of Victim Participation at Trial,

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noted that in light of the need to safeguard the fairness of the proceedings, the extent of participation of a victim must be significantly limited if that victim is anonymous.57

While we have considered this jurisprudence, which despite some limitations does not explicitly prohibit total anonymity of participating victims, we do not find it persuasive as in our view it does not take fully into account the potential of prejudice arising to the accused if the identity of the participating victims were to be withheld from them, as set out below. We also note that until now there has been no conclusive decision by the ICC Appeals Chamber on this issue.58

27. The LRV asserts that the Pre-Trial Judge mistakenly conflates the role of VPPs and witnesses, wrongly assuming that the general right of an accused to know the identity of a witness testifying against him or her also applies to VPPs.59 He also draws particular attention to the fact that a victim seeking to remain anonymous will not be called as a witness by the LRV.60 We first note that there are many other ways that a VPP may participate in proceedings under the Rules. This includes tendering evidence and examining witnesses called by the parties.61 In any event, we find it unnecessary to address the prejudice arising from specific forms of participation. This is because totally anonymous participation by victims is inherently prejudicial to the accused, regardless of how active or passive their desired method of participation and even for victims who do not seek to give or tender evidence.

22 January 2010, paras 92, 93; ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1665-Corr, Directions for the conduct of the proceedings and testimony in accordance with rule 140, 1 December 2009, para. 22 (c).

57 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1191, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims’ Participation of 18 January 2008, 26 February 2008, para. 37.

58 In the Lubanga appeal proceedings, the issue of victim participants’ anonymity has been raised by the Defence at least in relation to the issue of reparations. ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2972, Mémoire de la Défense de M. Thomas Lubanga relatif à l’appel à l’encontre de la « Decision establishing the principles and procedures to be applied to reparations », rendue par la Chambre de première instance le 7 août 2012, 5 February 2013, paras 48-60 (in particular).



61 See Rules 87 (B)-(D), 171 (B) STL RPE; Impugned Decision, para. 25.

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28. In order to qualify to be a VPP, a person must have suffered physical, material or mental harm as a direct result of an attack within the Tribunal’s jurisdiction.62 By accepting a victim’s application and granting VPP status, the Pre-Trial Judge decides that there is prima facie evidence the victim has suffered harm as a result of the crimes alleged against the accused in the indictment, a finding that is then either confirmed or annulled in the final judgment.63 Consequently, we consider that during trial the very existence of each VPP might be construed as constituting a specific accusation, separate and additional to those made by the Prosecution. An accused is generally entitled to mount a defence against such accusations.64 If VPPs are not required to disclose their identity at all, this would amount to an anonymous accusation against the accused, in breach of fair trial rights guaranteed under Article 16 of the Statute.65

29. Without knowledge of the identities of VPPs, Defence counsel would likely not be in a position to effectively challenge the status of individual victims before the final judgment of the Trial Chamber identifying them as such.66 For example, it would be impossible for the Defence to challenge the veracity of victims’ statements on their applications for participation. Nor would they have the information necessary

62 Art. 25 STL St; Rules 2, 86 STL RPE; see also Decision on Victims’ Participation.

63 Decision on Victims’ Participation, para. 3.

64 Pursuant to the audi alteram partem principle, a decision that is not entirely and unconditional favourable to an individual must not be taken without allowing that individual to state their position on that issue. In a criminal trial, the right to an adversarial trial means that “both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party” (ECtHR, Laukkanen and Manninen v. Finland, 50230/99, Judgment, 3 February 2004, para. 34). This extends beyond evidence relating to the alleged offence (ECtHR, Kamasinski v. Austria, 9783/82, Judgment, 19 December 1989, para. 102). Further, an accused person has a right to “acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings” as part of the right of a criminal defendant to adequate facilities to prepare their defence (ECommHR, Jespers v. Belgium, App. No. 8403/78, 29 September 1982, para. 56). This principle is a corollary of several fair trial rights, see International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (“ICCPR”); Art. 14 (1) (right to a public hearing); Art. 14 (3) (a) (right of an accused to be informed promptly and in detail of the charges against him/her and the right of an accused to defend him or herself); Art. 14 (3) (b) (right to adequate time and facilities to prepare a defence).

65 An accused is entitled to a “fair and public hearing” under Article 16 (2) STL St. An accused person in criminal proceedings is also entitled to be informed promptly and in detail of the nature and cause of the charge against him or her and to have adequate time and facilities to prepare his or her defence: Article 16 (4) (a)-(b) STL St.

66 See Rule 86 (G) STL RPE.

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to uncover any false declarations or fabricated identities before the final decision.67 Such a situation might conceivably lead to prejudice to the accused. Further, the Defence would have a limited ability to challenge the extent of victim participation, as they would not be in a position to properly assess whether or not the proposed participation relates to the victims’ “personal interests”.

30. We also accept, as argued by the Sabra Defence before the Pre-Trial Judge, that total anonymity has the strong potential to limit the ability of the Defence to request the disclosure of relevant exculpatory information from the LRV, as the Defence is unable to identify relevant material that may be in the possession of VPPs and target their requests accordingly.68 Similarly, VPP anonymity would potentially prevent the Defence from identifying and raising before the court other challenges, for instance with respect to witnesses who are in some capacity connected to the VPPs. It is not at this stage possible to predict all potential fairness issues that might arise if anonymous victim participation were accepted. Suffice it to say that those we have mentioned carry the strong potential to have a prejudicial effect on the accused. We therefore hold that the Pre-Trial Judge did not err when finding that anonymity of VPPs vis-à-vis the Accused would not allow them a full defence.

31. Hence, although we recognize the rights of victims and the importance of their participation in these proceedings, we find that total anonymity is so prejudicial to the rights of the accused and the fair conduct of the trial that this exceptional measure should not be available in these proceedings, especially in consideration of the fact that extensive protective measures are otherwise available (redactions of sensitive information, delayed disclosure, anonymity vis-à-vis the public etc.).

67 In the Lubanga Judgment, the ICC Trial Chamber withdrew the rights of nine persons to participate as victims, finding that there was a real possibility that some of them had fabricated their claim for victim status or had, at the instigation or encouragement of others, stolen the identities of others in order to receive the benefits of participating in the proceeding as a victim. This was discovered when the victims appeared as witnesses before the Trial Chamber, see ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras 484, 502.

68 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Sabra’s Consolidated Response to the Motions of the Legal Representative of Victims for Protective Measures (Anonymity) of Twenty-Three Victims Participating in the Proceedings, 16 November 2012, para. 34.

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E. WhetherthePre-TrialJudgeerredinfindingthattotalanonymityofVPPs entails prejudice in the proceedings before national jurisdictions

32. In providing another reason for rejecting total anonymity of VPPs, the Pre-Trial Judge stated that under Article 25, which provides for compensation to victims, “the accused is entitled to know the identity of the claimant VPP in order to be able to contest whether the claimant was indeed harmed by the accused’s alleged criminal act, and is thereby entitled to seek compensation”.69 The LRV argues the Pre-Trial Judge erred in making this finding.70 He submits that the Pre-Trial Judge ignored the provisions of Rule 86 (G), which also allow persons other than VPPs to seek a certified copy of the judgment in order to seek compensation before national courts. He adds that there would also be no prejudice in the present criminal proceedings, which are distinct from civil litigation in a different jurisdiction. Whether a victim may seek compensation anonymously should therefore be left to the relevant domestic courts.71

33. Under Article 25 of the Statute and Rule 86 (G) of the Rules, persons who have suffered harm as the result of the commission of crimes by an accused convicted by the Tribunal may bring an action in a national court in order to obtain compensation, if they are identified as victims in the final judgment, or otherwise consider themselves to be victims. Article 25 (1) gives the Tribunal the specific power to identify victims who have suffered harm as a result of the commission of crimes by an accused convicted by the Tribunal.

34. The extent to which a domestic court can rely on determinations on victim status in a final judgment of the Tribunal is properly a matter for that court. This includes determining any prejudice to the accused that may result from the anonymity of claimants in civil compensation claims. We therefore conclude that to the extent that the Pre-Trial Judge based his decision on any such potential prejudice arising from litigation before domestic courts, he was in error. We further note that VPP status is not a condition-precedent of a victim’s ability to seek compensation in a


70 Appeal, paras 62-63; see also VPU Submission, para. 8.


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national court under Article 25 and Rule 86 (G). However, we note that the Pre-Trial Judge’s determination that total anonymity is not a valid protective measure for VPPs before the Tribunal was not exclusively based on this specific finding. His error therefore does not invalidate the Impugned Decision.

F. Whether the Pre-Trial Judge erred in holding that Rule 93 of the Rules is not applicable to VPPs

35. The Pre-Trial Judge acknowledged that the Rules provide for total anonymity for witnesses in certain circumstances. Referring to the relevant Rule 93, he noted that “these are tightly constrained by a special procedure, and they does [sic] not apply to VPPs”.72 The LRV argues that this finding is erroneous. He claims that given the acceptance of anonymous witness testimony under Rule 93, anonymity of VPPs cannot be considered to be impermissibly prejudicial to the Defence.73

36. We are not persuaded by the LRV’s argument. The question of witness anonymity has no bearing on the present matter. With respect to witnesses, total anonymity may be exceptionally justified on the basis that it is the only way for a witness to give testimony without being put at risk. But unlike witnesses, who may be compelled to give testimony,74 victims choose to participate in the proceedings freely in order to access the participatory rights and other benefits of VPP status. Enjoyment of these rights is explicitly made conditional on victim participation being consistent with the rights of the accused and the fairness of proceedings under Article 17 of the Statute. For this reason, victim anonymity and witness anonymity must be treated as separate and distinct matters. There is also nothing “nonsensical” in the fact that a VPP who also testifies as a witness may be granted anonymity if such anonymity meets the stringent and exceptional requirements of Rule 93.75 Indeed, that individual would receive this protection only because of risks related to



74 See Rules 78, 130, 150, 151, 165 STL RPE.

75 Contra Appeal, para. 70.

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their giving of evidence, which may be involuntary. On the other hand, VPPs who do not testify as witnesses cannot draw on the same exception.

G. Whether the Pre-Trial Judge failed to apply a balancing approach

37. In the Impugned Decision, the Pre-Trial Judge held that in relation to the establishment of protective measures for VPPs the “determination is not whether the accused’s rights are prejudiced as a result of the measure, but rather whether the interests of justice require that the accused be deprived of their rights, or part of them, in this regard, and in the affirmative, whether a balance between the interests concerned can be established”.76 The LRV argues that while the Pre-Trial Judge correctly articulated the test he failed to apply it because he did not conduct a balancing exercise between the various concerned interests.77

38. We first note that contrary to the LRV’s submission it is clear from the Impugned Decision as a whole that the Pre-Trial Judge did not merely consider the interests of the accused in isolation. Indeed, for those protective measures that are explicitly available under the Rules, the Pre-Trial Judge expressly referred to proportionality principles.78 However, with respect to the issue of anonymity vis-à-vis the parties, the Pre-Trial Judge cautioned that such a measure “inherently risks violating the rights of the accused”.79 As for total anonymity, he forcefully stated that it would be “not conceivable to convict a person for a crime committed against a VPP who is involved in the trial proceedings and yet, by remaining anonymous, does not allow the accused a full defence”.80 In other words there would simply be no counterbalancing measure available to remedy the prejudice to the accused. In particular, as we have held above, even the participation of “passive” or “silent” VPPs would still be inherently prejudicial. In such circumstances, it would have been futile for the Pre-Trial Judge to consider the interests of the VPP, especially given that



78 Impugned Decision, paras 19, 28-31.



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under the mandate of Article 17 of the Statute VPP participation is permissible only insofar as it does not prejudice the rights of the accused. We have noted the serious concerns of the LRV that some VPPs might decide to discontinue their participation if their identities are revealed to the Defence and the Prosecutor.81 However, while the Statute mandates us to protect the rights of the victims, in particular their entitlement to participate in the proceedings, it places paramount importance on the right of the accused to a fair trial.82 The accused’s rights must therefore prevail.

H. Conclusion

39. In sum, we hold that the totally anonymous participation of VPPs in the proceedings is generally prejudicial to and inconsistent with the rights of the accused and the fairness of the trial and is not a valid form of victim participation within the meaning of Article 17 of the Statute. This includes “passive” or “silent observer” VPPs. The Pre-Trial Judge was therefore correct in finding that totally anonymous participation by victims is inherently prejudicial in the present proceedings and that the identities of VPPs should be disclosed sufficiently in advance to give the Defence adequate time to prepare.83

40. We note that this appeal does not affect the availability of the other protective measures that victims may request under the Statute and Rules, which are extensive.

41. We accordingly dismiss the Appeal.

81 Appeal, para. 73; see also VPU Submission, paras 27-29.

82 See, e.g., ICTY, Prosecutor v. Simić, IT-95-9-A, Judgement, 28 November 2006, para. 71 (“Any accused before the International Tribunal has a fundamental right to a fair trial, and Chambers are obliged to ensure that this right is not violated.”); ICTY, Prosecutor v. Aleksovski, IT-95-14/1-A, Judgement, 24 March 2000, para. 104 (“The right to a fair trial is, of course, a requirement of customary international law.”); see also STL, Prosecutor v. Ayyash et al., STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, para. 32 (referring to the “overarching principle of fair trial”).


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DISPOSITION

FOR THESE REASONS;

THE APPEALS CHAMBER;

FINDS the Appeal admissible, Judges Riachy and Nsereko dissenting;

UNANIMOUSLY DISMISSES the Appeal.

Judge Baragwanath appends a Concurring Opinion.

Judges Riachy and Nsereko append a Joint Partially Dissenting Opinion.


Dated 10 April 2013, Leidschendam, the Netherlands


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Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath)

CONCURRING OPINION OF JUDGE BARAGWANATH

I. Introduction

1. My reasons for agreeing that we should entertain but dismiss this appeal differ from my colleagues in the majority in relation to admissibility and elaborate on why I agree with them in relation to the merits of the Appeal. I therefore write separately.

2. Justice requires meticulous protection of the lawful rights of persons suspected or accused of crimes. But, subject only to that absolute requirement, the law should take care to protect those who have been victimized by crime. That indeed is the raison d’être both of the criminal law and of this Tribunal. The Statute of the Tribunal stipulates measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. That is a policy which, within the limits of a fair and expeditious trial, should receive full effect in decision-making. It is consistent with the reaffirmation in the United Nations Charter of fundamental human rights and of the dignity and worth of the human person,1 which must have particular resonance for victims of the grave crimes that have resulted in the Tribunal’s creation under Chapter VII.2 Failure to apply such a policy would risk re-victimizing victims.

3. That is why on the first, procedural, issue I share the conclusion of Judges Chamseddine and Hrdličková that this Chamber should entertain the important certified ground of appeal against the Pre-Trial Judge’s decision that permanent anonymity with respect to the parties can never be ordered to protect a victim participating in the proceedings. On the second, substantive, issue however I agree with all my colleagues that permanent anonymity should not be ordered as a protective measure. I need to explain why, despite the reason on which my first answer is based, I have concluded that refusal of victim anonymity is not merely a norm from which there may be departure in limited circumstances but, as the Pre-Trial Judge held and this Chamber agrees, an absolute.

1 Preamble, Charter of the United Nations (“UN Charter”).

2 SC Res. 1757, UN Doc. S/RES/1757 (30 May 2007), (Second Recital, “[r]eaffirming its strongest condemnation of the 14 February 2005 terrorist bombings […]”).

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II. The procedural issue

4. The policy of the Statute is evident from Articles 12 (4), 17 and 22 which are to be read in the context of the UN Charter. Article 12 (4) requires the establishment of a Victims and Witnesses Unit which will provide measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. It could be read down, as merely providing bureaucratic procedures. It can also be read, as I interpret it, as the expression of a policy which is broader in scope and more consonant with the spirit of the whole Statute. Article 17 states that where the personal interests of victims are concerned, the Tribunal shall permit their views and concerns to be presented and considered “at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber” in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair trial. Article 22 goes so far, in the interests of victims as well as the public, as to provide for trial in absentia. Thus, Article 12 (4) acknowledges the interests of victims; Article 17 gives victims with such interests a significant right—that of being heard; Article 22 recognizes that victims as well as the public should be able to see the case come to trial rather than be buried in an archive, so long as stringent conditions for ordering trial in absentia are met3 and the absent accused is guaranteed retrial at his election if he comes forward or is arrested. Rules 86 and 87 of the Rules of Procedure and Evidence (“Rules”) then refine the procedures for victims to receive by order of the Pre-Trial Judge the status and specific participation rights of a “victim participating in the proceedings” (“VPP”). These pull together to bear out the policy of Article 12 (4) as informing the approach to be adopted by Judges on interpretation of victims’ status before this Tribunal.

5. VPPs may include both immediate victims, who have suffered injury and are among the ones named in the indictment, but also secondary victims who have lost or sustained injury to a loved one and who are not so named.

3 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Corrected Version of Decision on Defence Appeals against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, para. 31.

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6. In determining the first issue Lord Clarke’s dissenting remark in Al Rawi et al. v Security Service et al. may be borne in mind:

One of the problems raised by the appeal is that the declaration is stated in absolute terms, without reference to the facts of a particular case. I am firmly of the view that it is in general undesirable to determine bare questions of law in this way. I would expect the court ordinarily to require the relevant legal question to be decided in a particular factual context.4

7. Since we face the same problem we must take into account not only the easy cases, where the presumption of openness can safely apply, but also the argument that there could be an extreme case, as where it is asserted that (because of deep concern about the enormity of the crime and its effects) a VPP will suffer psychological injury if deprived of that status, yet will be at serious risk of death or grave physical or mental harm whether personally or to someone close if an anonymity order is declined.5

8. Neither the Statute nor the Rules expressly authorize appeal from the decision of the Pre-Trial Judge. In domestic law that would bar any appeal. But as we decided in El Sayed,6 the Statute and Rules are not to be read as a comprehensive codification of the law of this international tribunal. In that case we were not prepared to attribute to the Security Council or the Plenary of Judges who adopted the Rules an intention to decline access to appeal in a case simply not contemplated by either, when to do so would have presented risk of grave injustice.

9. Such could arguably be the consequence of cases falling within paragraph 7 above. The logical possibility of such a case requires in my judgment the same conclusion as in El Sayed, that an entitlement to appeal, adopting Rule 126 by analogy, is to be inferred from the policy of the Statute and the consequences of an erroneous decision at first instance.7

4 United Kingdom, Supreme Court, [2011] U.K.S.C. 34, [2012] 1 A.C. 531 (13 July 2011), (“Al Rawi”) para. 125.

5 This formulation adapts the language of Rule 93 concerning anonymous witnesses.

6 STL, In the matter of El Sayed, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, CH/AC/2010/02, 10 November 2010, in particular paras 54-57.

7 See also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”,

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III. The substantive issue

10. Generally for the reasons given by my colleagues, I accept that normally the identity of a VPP should be disclosed to the accused. Moreover a decision by a VPP to undertake the active forms of participation permitted by Rule 87, such as requesting the Trial Chamber to call witnesses or tender evidence, or to examine and cross-examine witnesses and file motions and briefs, or make submissions on sentence, would necessarily entail loss of anonymity. That is required by the Statute and Rules which reflect settled principles of law for the protection of an accused, which are common to the highest standards of international justice with which we are to conform.8 The precept that one must know one’s accuser is age-old and deep-set in any concept of procedural fairness. So recent decisions of final authority have emphasized both the open justice principle9—that subject to certain established and limited exceptions trials should be conducted and judgments given in public; and also the audi alteram partem principle—that a party has a right to know the nature of the case against him, the evidence on which it is based, and the identity of his accuser.10 So there can be no scope for any long-term or permanent anonymity order for a VPP who is an active accuser.

11. But the appeal is dealing with an absolute: the Pre-Trial Judge held that in no circumstances could total anonymity be ordered. It is argued that the same principle applies to a VPP who plays no active part in the accusatorial process. The issue for us is whether he was right to give such an absolute answer.11

Separate and Partially Dissenting Opinion of Judge Baragwanath, 24 October 2012, paras 14-28.

8 See in particular Art. 28 (2) STL St.

9 See Al Rawi, paras 10-11.

10 Id. at para. 12; United Kingdom, House of Lords, R v Davis, [2008] U.K.H.L. 36, [2008] A.C. 1128 (18 June 2008) (“R v Davis”).

11 See the later discussion of anonymous evidence, below paras 21-25. In proceedings currently in process, six members of a nine member UK Supreme Court have limited the absolute character of public justice by holding that where Parliament has permitted an ex parte hearing in order to protect material that should not be disclosed on the grounds of public interest and national security, the appellate court must possess similar authority. The principle “never say never” appears to have been applied, see United Kingdom, Supreme Court, Bank Mellat v HM Treasury, U.K.S.C. 2011/0040, Statement by Lord Neuberger: ‘Further update on proceedings’ (21 March 2013) (available at: http://www.supremecourt.gov.uk/news/bank-mellat-v-hm-treasury.html). The case is on appeal from: United Kingdom, Court of Appeal, Bank Mellat v HM Treasury, [2010] EWCA Civ. 483, [2012] Q.B. 91 (4 May 2010).

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A. WhetherthePre-TrialJudgeerredwhenfindingthattotalanonymityof VPPs entails prejudice to the accused in the proceedings before the Tribunal

12. As my colleagues recognize, VPPs may seek different degrees of participation in proceedings, including that of an entirely passive participant or silent observer.

13. For the reasons they give I have no doubt that it is only the latter types of VPP who could arguably be considered for total anonymity. I recognize that even though victims seeking to remain anonymous will not be called by the Legal Representative of Victims to give evidence (unless the provisions of Rule 93 were exceptionally held to apply) and may be prohibited from overt activity such as requesting Judges to call or cross-examine witnesses, there are other ways in which a VPP may participate in proceedings.

14. I prefer to reserve my opinion on whether the mere existence during trial of a VPP whose role is purely passive constitutes a specific accusation, separate and additional to those made by the Prosecution, against which an accused person is entitled to mount a defence, and that this would risk breaching the fair trial rights guaranteed under Article 16 of the Statute. But whatever one’s view on the point, in criminal law the precept that justice to the accused must both be done and be seen to be done is of the utmost importance.

15. While it can be argued that, without knowledge of the identities of VPPs, Defence counsel would not be in a position to effectively challenge their status before the final judgment of the Trial Chamber identifying them as such,12 if their role is purely passive, it may be asked what harm is in practice done to the fair trial rights of the accused? But the answer, implicit in the decision of this Chamber, is that one simply does not know. The principle favor rei which we employed in our Decision on the Applicable Law13 must give the accused the benefit of any real doubt.

16. I have concluded that is so even in this case, where the Defence has:

12 See Rule 86 (G) STL RPE.

13 STL, Prosecutor v. Ayyash et al., STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, para. 32.

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(1) been notified in the indictment of the name of each of the victims killed and of each of the persons injured in the attack of 14 February 2005;

(2) formally agreed not to contest those assertions;14

and so the only literally unidentified VPPs are “second-stage” victims: those who are victimized by the death or injury of another victim.15 Of course there can be first stage victims who are identified as victims, but do not wish to be identified as VPPs, because this would imply taking a stand against the interests of the accused. But the Defence knowledge of the identity of each first-stage victim reduces the force in the argument of the Sabra Defence before the Pre-Trial Judge, that total anonymity must limit the ability of the Defence to request the disclosure of relevant exculpatory information from the LRV.16 When as here the identity of the primary victims is known, while logically possible it is not inevitable that VPP anonymity would present a real risk of preventing the Defence from identifying and raising before the court other challenges, for instance with respect to witnesses who are in some capacity connected to the VPPs.

17. In the end however I agree with my colleagues that it is not at this stage possible to predict all potential fairness issues that might arise if anonymous victim participation were accepted.

18. From the overarching requirement of fairness to the accused follows that the possibilities of unfairness, coupled with the public trial and audi alteram partem principles, point to a general principle that there should be disclosure of victims’ names. That is because anonymity of VPPs vis-à-vis the accused might not allow them a full defence.

14 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Prosecution’s Notice on the Implementation of the Pre-Trial Judge’s “Order Regarding Narrowing Issues Contested at Trial”, 19 March 2013, para. 5 (referring to Confidential Annex D [Letter from the Defence Counsel to the Acting Chief of Prosecutions, 21 February 2013]).

15 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims’ Participation in the Proceedings, 8 May 2012, paras 35-84.

16 See STL, Prosecutor v, Ayyash et al., STL-11-01/PT/PTJ, Sabra’s Consolidated Response to the Motions of the Legal Representative of Victims for Protective Measures (Anonymity) of Twenty-Three Victims Participating in the Proceedings, 16 November 2012, para. 34.

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19. The remaining question is whether justice to the accused can be achieved only by a blanket refusal of VPP anonymity. I return to this point at paragraph 27 after first considering Rule 93.

B. Whether the Pre-Trial Judge erred in holding that Rule 93 of the Rules as to witness anonymity is irrelevant to VPPs

20. Rule 93 provides a procedure whereby evidence of anonymous witnesses may be provided in cases “[w]here [...] there is a serious risk that a witness or a person close to the witness would lose his life or suffer grave physical or mental harm as a result of his identity being revealed” and alternative measures for protection would be insufficient to prevent such danger.

21. The Pre-Trial Judge acknowledged that this Rule provides for total anonymity for witnesses in certain circumstances. Referring to its provisions he noted that “these are tightly constrained by a special procedure, and they [do] not apply to VPPs”.17 The LRV argues that this finding is erroneous. He claims that given the acceptance of anonymous witness testimony under Rule 93, anonymity of VPPs cannot be considered to be impermissibly prejudicial to the Defence.18

Arguments against relevance of Rule 93

22. It can be argued that Rule 93 is an explicit statutory authorization that makes an exception from the rule that an accused must be able to confront his accusers. There is no such exception for VPPs. So expressio unius est exclusio alterius: the fact that it has been necessary to create an explicit exception under Rule 93 for witnesses suggests that in the absence of such express exception for witnesses none should be permitted. Moreover, Rule 159 (B) says that no conviction may be based solely or to a decisive extent on the statement of the witness under Rule 93. So even the exception of Rule 93 is very limited. It should not be used to allow a VPP to be anonymous, especially when there is no such exception under the Rules.



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Arguments in favour of relevance of Rule 93

23. By definition, a witness is one whose evidence is relevant to and tends to prove or disprove an issue in the case. Such status is more obviously calculated to prejudice an accused than a mere second-stage victim, whose identification may or may not allow the Defence to embark on a process of enquiry whether that is so.

Comment

24. It is in my view beside the point that unlike witnesses, who may be compelled to give testimony,19 victims choose to participate in the proceedings freely in order to access the participatory rights and other benefits of VPP status. I have already set aside those who wish to exercise active participatory rights. The VPP’s status must conform with the condition that it be consistent with the rights of the accused and the fairness of proceedings under Article 17 of the Statute. But of course the whole of the conduct of the case is subject to that very same condition. For this reason, victim anonymity and witness anonymity are not in my view to be treated as separate and distinct matters. It would be odd if a VPP who also testifies as a witness, and so participated actively in the proceeding, were able to receive anonymity (if the stringent and exceptional requirements of Rule 93 were met), when a purely passive VPP could not.20 What must matter is the evaluation of the three basic values in play: (i) the nature and extent of the risk to the victim (or witness); (ii) the nature and extent of the risk to the accused of an unfair trial; and (iii) the need for the criminal law to operate not only fairly but in a manner that while giving effect to principle also reflects practicality.

C. The approach of the Pre-Trial Judge

25. In the Impugned Decision, the Pre-Trial Judge held that in relation to the establishment of protective measures for VPPs the “determination is not whether the accused’s rights are prejudiced as a result of the measure, but rather whether the interests of justice require that the accused be deprived of their rights, or part of

19 See Rules 78, 130, 150, 151, 165 STL RPE.


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them, in this regard, and in the affirmative, whether a balance between the interests concerned can be established”.21 In other words, the accused is to be deemed to have been deprived of rights and the issue is whether that is outweighed by other considerations. The LRV argues that while the Pre-Trial Judge correctly articulated the test he failed to apply it because he did not conduct a balancing exercise between the various concerned interests.22

26. The VPPs’ argument can perhaps be pitched higher: in logic it may be that in some instances a factual investigation would satisfy the Judge or Chamber that there is in fact no real risk to the accused’s rights. That would enable a challenge to the conclusion of the Pre-Trial Judge that an order for permanent anonymity “inherently risks violating the rights of the accused”23 and that it would be “not conceivable to convict a person for a crime committed against a VPP who is involved in the trial proceedings and yet, by remaining anonymous, does not allow the accused a full defence”.24

D. My approach

27. I have held (at paragraph 10 above) that the principles of open justice and audi alteram partem require disclosure in the case of an active participant. I have also held (at paragraph 18) that there must be a presumption that even the participation of “passive” or “silent” VPPs would still be inherently prejudicial. The remaining question is whether such presumption should be treated as irrebuttable.

28. I have noted the serious concerns of the LRV that some VPPs might decide to discontinue their participation if their identities are revealed to the Defence and the Prosecutor.25 However, while the Statute mandates us to protect the rights of the victims, it places paramount importance on the fundamental right of the accused to a fair trial. I reiterate that the accused’s right to a fair trial must always prevail.





25 Appeal, para. 73; see also VPU Submission, paras 27-29.

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29. But granted the right of the accused to a fair trial, in the case of a passive VPP the further issue to be considered is whether the interests of the victim can be such as to justify departing from the presumption of disclosure and accepting the cost and delay of embarking on an enquiry whether the presumption of disclosure can be rebutted.

30. In considering the ultimate result I bear in mind the caution voiced by Lord Hope in Al Rawi:

As the Court of Appeal said, […] it is a melancholy truth that a procedure or approach which is sanctioned by the court expressly on the basis that it is applicable only in exceptional circumstances none the less often becomes common practice. Lord Shaw of Dunfermline’s warning in Scott v Scott [1913] AC 417, 477-478, against the usurpation of fundamental rights that proceeds little by little under the cover of rules of procedure remains just as true today as it was then. 26

31. I have posed and reflected on the extreme argument—for a victim who will suffer psychological impairment if not admitted as a VPP yet (adapting the test of Rule 93) would lose his life or suffer grave mental or physical harm as a result of his identity being revealed and cannot otherwise be protected.

32. The simple approach is to say that such person must put up with a lack of any formal status as a VPP. Yet it can be argued that to do so would overlook the elements of “psychological well-being, dignity and privacy” emphasized by Article 12 (4) of the Statute. Victims apply to become VPPs because that status matters to them. Those who have not been identified in the indictment as primary victims wish, because of the death or injury to a loved one, to be associated with the case. Must it always be said that they are to be denied such status because otherwise the accused cannot receive a fair trial?

33. This argument receives logical support from the analogy of Rule 93. Certainly there are very powerful reasons to avoid anonymous evidence. They are lucidly stated by Lord Bingham in the UK House of Lords case R v Davis.27 Yet both the Rules of

26 Al Rawi, para. 73.

27 See R v Davis, per Lord Bingham, paras 5, 34.

http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1913/2.html

http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1913/2.html

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this Tribunal and legislation elsewhere acknowledge the possibility in some cases of combining justice to an accused with some measure of anonymous evidence.28 If a witness can sometimes be permitted to give evidence anonymously, must not a secondary victim a fortiori sometimes be given similar permission?

34. Despite the analogy of Rule 93 I have concluded that the answer is no. That Rule is very exceptional.29 Although the importance of the interests of victims is clearly emphasized by the Statute, Article 17 recognizes that they are subordinate to those of the accused. Theirs is a double right both to fair trial and to expeditious process. The logical argument I have posed at paragraphs 29 and 31 stacks possibility on possibility and would inject complication and delay into a process which, while it must be fair, must also seek reasonable expedition. Just as an accused’s entitlement to a fair trial does not require perfection, so the present decision requires a practical rather than theoretical evaluation. I regard the real possibility of the extreme case as so remote as to be outweighed by the considerations advanced in the decision of this Chamber. It follows that I agree both with its conclusion that the appeal must be dismissed and, subject only to the minor points on which I prefer a different approach, with its reasons.

28 For example, the New Zealand experience began with: New Zealand, Court of Appeal, R v Hughes [1986] 2 NZLR 129 (19 June 1986) where three of five judges required an undercover police officer to disclose his true identity; two preferred immunity unless the identity was of such relevance that to withhold it would be contrary to the interests of justice. In: New Zealand, Court of Appeal, R v Hines [1997] 3 NZLR 529 (15 August 1997) (followed by the House of Lords in R v Davis) three judges held that a witness must give his name and address and that any change should be effected by Parliament; two dissented. One of the majority held that had it been appropriate to reconsider R v Hughes judicially the court should feel able to take a position different from a view that the right of the accused to know the identity of a prosecution witness is absolute or very close to absolute. Following the New Zealand Law Commission’s Preliminary Paper 29: Evidence Law: Witness Anonymity (September 1997) (available at: http://www.nzlii.org/nz/other/nzlc/pp/PP29/PP29.pdf) and its Report 42: Evidence Law: Witness Anonymity (October 1997) (available at: http://www.lawcom.govt.nz/sites/default/files/publications/1997/10/Publication_43_84_R42.pdf) the New Zealand Parliament responded to R v Hines by enacting the Evidence (Witness Anonymity) Amendment Act 1997 (New Zealand) which empowered the High Court, subject to stringent safeguards, to make a witness anonymity order. The Court of Appeal upheld such orders made by the High Court in: New Zealand, Court of Appeal, R v Atkins [2000] 2 NZLR 46 (9 February 2000).

29 See fn. 28 above.

http://www.nzlii.org/nz/other/nzlc/pp/PP29/PP29.pdf

http://www.lawcom.govt.nz/sites/default/files/publications/1997/10/Publication_43_84_R42.pdf

http://www.lawcom.govt.nz/sites/default/files/publications/1997/10/Publication_43_84_R42.pdf

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Judge David Baragwanath

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Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko)

JOINT PARTIALLY DISSENTING OPINION OF JUDGES RIACHY AND NSEREKO

1. While respecting the majority’s views on the admissibility of this appeal, we disagree with their decision and consider the appeal to be inadmissible for the following reasons.

I. The power of the Appeals Chamber to entertain appeals

2. The power of the Appeals Chamber to hear appeals is conditioned by both the status of the appellants (parties to a case or third parties, i.e. whether they have standing to appeal) and the nature of the appeal (appeal against a final decision or appeal against an interlocutory decision). As a general principle of law, and of trial fairness, parties to a case are always allowed to appeal final decisions.1 That is not the case with respect to interlocutory appeals or to appeals brought by persons who are not parties to the case (whether against a final decision or an interlocutory one).

3. In the latter two cases, the Appeals Chamber exercises its appellate powers only on the basis of express statutory authority—the Statute and the Rules of Procedure and Evidence (“Rules”)—empowering it to do so. Therefore, in the absence of such authority, the Appeals Chamber cannot assume jurisdiction to hear the appeal, say by inference or otherwise. There is ample persuasive authority in support of this view from the jurisprudence of other courts, both national,2 and international.3

1 See para. 13 below.

2 See, e.g., United Kingdom, House of Lords, Attorney-General v. Sillem, 11 ELR 1200 (1864), pp. 1207-1208 (Lord Westbury stating that “[t]he creation of a new right of appeal is plainly an act which requires legislative authority. The court from which the appeal is given and the court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal or both collectively to create any such right.”); see also Ghana (formerly, Gold Coast Colony), Privy Council (on appeal from the West African Court of Appeal), Moore v. Tayee [1935] A.C. 72 (26 October 1934), paras 75-76 (“After all, it is to be remembered that all appeals in this country and elsewhere exist merely by statute, and unless the statutory conditions are fulfilled no jurisdiction is given to any court of justice to entertain them.”); see also Australia, Supreme Court of South Australia, James v. Keogh, 102 SASR 51 (2008), Layton J (dissenting), para. 156 (“The jurisdiction of the Supreme Court to hear an appeal cannot rise above its source.”).

3 See, e.g., ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2799, Decision on the “Urgent Request for Directions” of the Kingdom of the Netherlands of 17 August 2011, 26 August 2011, paras 7, 8 (overturning a Trial Chamber decision granting the Kingdom of the Netherlands leave to appeal); ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2823, Decision on the “Registrar’s Submission under Regulation 24bis of the Regulations of the

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4. We have previously adopted this approach at the STL. In our decision of 24 October 2012, the majority found that the Appeals Chamber cannot entertain appeals outside the Rules where the language of a rule is drafted in a “specific and narrow way” and the issue is not one that the drafters of the Rules could not have foreseen. In such cases, it cannot be said that there is a lacuna in the Rules that would allow an appeal to be admitted exceptionally.4

5. In the present case, our Rules do not grant any appeal as of right to victims participating in the proceedings (“VPPs”) with respect to the issue of protective measures. Regarding interlocutory appeals that are not as of right, the Appeals Chamber’s powers are defined by the provisions of Rule 126 of the Rules. In our view, this Rule is not applicable to the present case, either directly or by analogy.

Court In Relation to Trial Chamber I’s Decision ICC-01/04-01/06-2800” of 5 October 2011, 21 November 2011, para. 14 (where the Appeals Chamber stated that “[t]he Appeals Chamber has consistently held that its jurisdiction is clearly and exhaustively defined in the Statute and Rules of Procedure and Evidence and has equally consistently rejected any attempts to bring appeals outside this defined scope of jurisdiction”); see also ICC, Situation in the Democratic Republic of the Congo, ICC-01/04-168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006 (where the Appeals Chamber rejected an attempt to appeal a decision for which leave to appeal was not granted); see also ICTY, Prosecutor v. Delić, IT-04-83-Misc.1, Decision on Prosecution’s Appeal, 1 November 2006, p. 3 (where the Appeals Chamber decided that there was no right of appeal against a decision denying the amendment of the indictment because “there is no lacuna in the Rules, which justifies the Appeals Chamber considering this appeal proprio motu” and because “the Appeals Chamber has no inherent authority to intervene in an interlocutory decision of a Trial Chamber, not subject to a right of appeal and to which certification has been denied [...] on the basis of an allegation by the Prosecution that the Trial Chamber has abused its discretion by not allowing the Prosecution amendments.”); see also SCSL, Prosecutor v. Norman et al., SCSL-04-14-T, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal, 17 January 2005, paras 32, 41 (where the Appeals Chamber held that it “may have recourse to its inherent jurisdiction, in respect of proceedings of which it is properly seized, when the Rules are silent and such recourse is necessary in order to do justice. The inherent jurisdiction cannot be invoked to circumvent an express Rule. [...] Where the Rules make provision for a particular situation, it is it is [sic] not a proper exercise of inherent jurisdiction for a tribunal to substitute its own view of what the rules should have been for what the Rules are.”); but see contra ICTY, Prosecutor v. Šešelj, IT-03-67-R33B, Public Redacted Version of the “Decision on the Registry Submissions Pursuant to Rule 33(B) Regarding the Trial Chamber’s Decision on Financing of Defence” Rendered on 8 April 2011, 17 May 2011, para. 16.

4 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012, paras 16-18.

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II. Rule 126 may not be construed in any way to allow victims a right of appeal

6. Rule 126 is drafted as generally applicable to all decisions for which certification is required before they can be appealed. However, the Rule cannot be construed as recognizing, either directly or by analogy, any right of appeal by VPPs.

A. No ambiguity in Rule 126

7. Paragraphs (A) and (C) of Rule 126 contain general provisions regarding certification for interlocutory appeals. However, paragraphs (B) and (E) of the Rule clarify that only a party may, under circumscribed conditions, file an appeal before the Appeals Chamber. We have previously held that the interpretation of a legal document must take into account not only its text, but also its context.5 Paragraphs (B) and (E) provide such context to Rule 126. These provisions should be interpreted so that they are internally consistent and provide a coherent interpretation of Rule 126. Thus, contrary to the majority’s views on this point, we consider that paragraphs (A) and (C) of Rule 126 must be interpreted in conformity with paragraphs (B) and (E) which allow only a party to file appeals. As such, there is no ambiguity in Rule 126 and thus no lacuna in the Rules.

B. Victims are not parties

8. Rule 2 of our Rules defines “the parties” as the Prosecutor and the Defence. The Defence is also defined as the accused, the suspect and/or his counsel. Rule 2 contains a separate definition for VPPs. This explicit reference to VPPs clearly demonstrates that they cannot be characterized as parties under our Statute and Rules. They have a separate status which in turn means that they do not benefit from the same rights as parties.

5 STL, Prosecutor v. Ayyash et al., STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, paras 19-20.

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9. Unlike the parties, VPPs at the STL have a narrow right to present their views and concerns.6 This right is subject to constraints under our Statute and Rules, which tend to show that the spirit of the Statute and Rules does not allow them to participate as full parties, and thus enjoy similar rights to parties.

10. For example, under Article 17 of the Statute, the participation of victims is subject to the authorization of a Judge or Chamber, if said Judge or Chamber finds that this participation is appropriate and does not violate the rights of the Defence. Rule 87, which further elaborates on the modes of participation of victims at the STL, shows that their participation is strictly regulated.7 For example, victims do not have the right to call witnesses, but they may ask the Trial Chamber to do so on their behalf. The Chamber’s authorization is also required for examination and cross-examination of witnesses, for the production of evidentiary material, and the filing of submissions by VPPs. This would not have been the case had the Statute and Rules considered that victims shared the same status as parties. Indeed, contrary to civil law systems such as Lebanon, VPPs at the STL are not parties civiles (civil litigants considered to be a party in a criminal trial).

11. We also note that the International Criminal Court (“ICC”) has dealt with the question of whether victims are parties and, on the basis of similar provisions, has found that they are not.8

6 Art. 17 STL St.

7 We note that Rule 87 (D) provides that the Appeals Chamber can authorize victims to participate in the proceedings before it. This may not be construed as a recognition of a general right of appeal of victims participating in the proceedings. It only allows the Appeals Chamber to authorize victims to participate, which would require the Chamber to already be seized of an appeal submitted to it by the parties. Rule 87 (D) can also be considered to apply only at the appellate stage following a final judgment by the Trial Chamber. In other words, this Rule is simply an application of Article 17 of the Statute which allows the Pre-Trial Judge or a Chamber to authorize the victims participating in the proceedings to submit their views and concerns under certain conditions.

8 ICC, Situation in the DRC, ICC-01/04-437, Decision on Application for Leave to Appeal the Decision on Requests of the OPCV, 18 January 2008, pp. 3-4 (finding that the Office of Public Counsel for Victims lacks standing to seek leave to appeal); ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1432, Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008, para. 93 (finding that a victim is not a “party”); ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-675, Reasons for the “Decision on ‘Victims and Witnesses Unit’s considerations on the system of witness protection and the practice of ‘preventive relocation’ and ‘Prosecution’s request for leave to file a response to ‘Victims and Witnesses Unit’s considerations on the system of witness protection and the practice of ‘preventive relocation’’”, 11 July 2008, Dissenting Opinion of Judge G.M. Pikis, para. 4 (finding that

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12. Thus, in our view, Rule 126 cannot be directly applied to VPPs, as they are not considered to be parties.

C. No possible application to victims by analogy

13. Contrary to the assertion of the majority, the Statute and Rules do not support a right of VPPs to seize this Chamber with interlocutory appeals. Article 26 of the Statute limits the power of appeal to only the accused and the Prosecutor. This provision is consistent with general principles of criminal law and international human rights law, which recognize a right of appeal of an accused person9 but do confer a comparable right on victims when they do not have the status of partie civile.10 Thus, we consider that, generally under the Statute, only parties may bring an appeal. Exceptions to this principle must be clearly articulated in the Rules and must be narrowly applied to the situation foreseen in that text.

14. When our Rules accord to the victims a right to appeal they do so explicitly. For example, Rule 86 (C) explicitly grants “an unsuccessful applicant for the status of victim participating in the proceedings” a right to appeal a decision of the relevant Judge or Chamber. It does not confer a similar right on victims under the circumstances of this case. This limited right of applicants for victim status should not be extended to all other victims participating in proceedings who may be aggrieved by a decision of a Judge or Chamber. To extend a right of appeal to VPPs as is suggested by the majority would be against the clear spirit of the Rules and of the Statute.

15. In addition, we do not share the majority’s view that because Rule 86 (D) specifically prohibits appeals against decisions relating to the grouping of victims in the proceedings and contains no general prohibition against participating victims’

under the relevant provisions, “parties” are only the Prosecution and Defence); ICC, Situation in Darfur, Sudan, ICC-02/05-192, Decision on the Application for Leave to Appeal the Decision on Application under Rule 103, 19 February 2009, p. 5 (refusing leave to appeal on the basis that the applicant was not a party).

9 For example, Article 14 (5) of the International Covenant on Civil and Political Rights (adopted 16 December 1966, 999 U.N.T.S. 171) only recognizes a right to appeal of a person convicted of a crime. Article 2 (1) of the Additional Protocol 7 to the European Convention on Human Rights (Council of Europe, adopted 22 November 1984, E.T.S. 117, as amended by Protocol No. 11, adopted 11 May 1994, E.T.S. 155) also mentions this right as one belonging to a convicted person.

10 ECtHR, Garimpo v. Portugal, 66752/01, Final Decision on Admissibility, 10 June 2004.

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“right to file interlocutory appeals” such appeals are argumentum e contrario admissible.11 We consider that this explicit prohibition was inserted in the Rules to ensure clarity. Indeed, Rule 86 (C) allows an appeal as of right. And in light of the close connection between the status of VPPs and their grouping, it was important to specify that only unsuccessful applicants are allowed to appeal decisions on victim status, whereas decisions regarding grouping are not subject to appeal.

16. It is thus not enough that the Rules contain no provisions excluding VPPs from lodging interlocutory appeals. Rather, the Statute contains a general presumption that non-parties are not permitted to lodge appeals, and the Rules contain no explicit provisions granting VPPs a right of appeal in relation to protective measures. There is thus no legal basis for such a right.

17. Whilst dealing with an issue similar to the one at hand the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia stated as follows:

If this view of the matter appears overly legalistic, any other ruling would open up the Tribunal’s appeals procedure to non-parties – witnesses, counsel, amicus curiae, even member of the public who might nurse a grievance against a Decision of the Trial Chamber. This could not be. The Tribunal has a limited appellate jurisdiction which categorically cannot be invoked by non-parties.12

18. We therefore consider that the Appeals Chamber cannot invoke Rule 126, either directly or by analogy, as the basis for holding the appeal admissible. To do so would amount to an unwarranted extension of the Appeal Chamber’s powers.

III. Article 17 of the Statute cannot found the Appeals Chamber’s jurisdiction

19. We disagree with the majority’s view that the appeal can be held admissible on the basis of Article 17 of the Statute. This article merely mandates the Tribunal to permit victims to present their views and concerns at stages of existing proceedings before a Chamber where that Chamber determines it to be appropriate. Presenting views and concerns does not include initiating new proceedings or, as is held by

11 See Majority Opinion, para. 13.

12 ICTY, In the Case of Dragan Opacić, IT-95-7-Misc.1, Decision on Application for Leave to Appeal, 3 June 1997, para. 6.

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the majority in this case, mounting an appeal before the Appeals Chamber. In our view, proceedings before the Appeals Chamber constitute a separate and distinct stage of the proceedings from the proceedings before the Pre-Trial Judge; the two should not be conflated.13 Thus, permitting an appeal would be to allow the Legal Representative of Victims (“LRV”) to initiate new proceedings.14 Neither the Statute nor the Rules authorize such proceedings.

20. The majority also relies on the notion of “personal interest”, as mentioned in Article 17, and considers that VPPs have standing to file appeals before the Appeals Chamber when their interests are “fundamentally concerned”.15 In our view, this criterion creates a new standard which does not exist in the Statute. As a general rule, an appellant must always demonstrate that he or she has standing to appeal16 otherwise the appeal would be inadmissible. However, the majority here is adding “fundamentally concerned interests” as a basis for the right to appeal. We find no justifiable basis for this addition.

21. This is equally true where the Statute or Rules permit the LRV to seize the chamber of first instance with a request in relation to a specific matter relating to their personal interests.17 Such provisions do not expressly confer a right of appeal on victims in relation to these matters and thus should not be interpreted as to enlarge the jurisdiction of the Appeals Chamber.

13 We find persuasive authority for this view in the ICC case of Prosecutor v. Lubanga, ICC-01/04-01/06-2823, Decision on the “Registrar’s Submission under Regulation 24bis of the Regulations of the Court In Relation to Trial Chamber I’s Decision ICC-01/04-01/06-2800” of 5 October 2011, 21 November 2011, para. 13; ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-824, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en líberté [sic] provisoire de Thomas Lubanga Dyilo”, 13 February 2007, para. 43.

14 This remains so notwithstanding the fact that the victims participating in the proceedings were part of the proceedings before the Pre-Trial Judge.

15 See Majority Opinion, paras 14-18.

16 On the issue of standing see STL, In the matter of El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, paras 60-65.


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IV. The certification granted by the Pre-Trial Judge is not a recognition of a right of appeal for victims participating in the proceedings

22. Finally, we agree with the majority’s view to reject the LRV’s argument that the appeal is admissible because neither the parties nor the Pre-Trial Judge raised any objections to the request for certification.18 We add that the certification granted by the Pre-Trial Judge has no bearing on the admissibility of the appeal. The determination of whether VPPs have a right to appeal falls squarely within the purview of the Appeals Chamber, which is the only competent body to decide this matter.



Juge Ralph Riachy Juge Daniel David Ntanda Nsereko


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Title: Decision Relating to the Prosecution Requests of 8 November 2012 and 6 February 2013 for the Filing of an Amended Indictment

Short title: Leave to Amend Indictment PTJ

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THE PRE-TRIAL JUDGE




Date: 12 April 2013



THE PROSECUTOR v.



DECISION RELATING TO THE PROSECUTION REQUESTS OF 8 NOVEMBER 2012 AND 6 FEBRUARY 2013 FOR THE FILING OF

AN AMENDED INDICTMENT



Legal Representatives of Victims: Mr Peter Haynes




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Leave to Amend Indictment PTJ

I. Subject of the Decision

1. By way of the present Decision, the Pre-Trial Judge rules on the Prosecution request of 8 November 2012 seeking leave to file an amended indictment (respectively, the “Request of 8 November 2012” and the “Indictment of 8 November 2012”), in accordance with the Decision of the Pre-Trial Judge of 25 October 2012 (the “Decision of 25 October 2012”) and the issuing of arrest warrants including transfer and detention orders for the accused referred to therein.1 The Pre-Trial Judge also rules on the Prosecution request of 6 February 2013 for leave to include further amendments to the Indictment of 8 November 2012, to which is joined a new amended indictment (respectively, the “Request of 6 February 2013” and the “Indictment of 6 February 2013”).2

II. Background to the proceedings

2. On 28 June 2011, the Pre-Trial Judge confirmed the counts contained in the Indictment of 10 June 2011 and allowed Messrs. Ayyash, Badreddine, Oneissi and Sabra to be charged (respectively, the “Decision of 28 June 2011”, the “Indictment of 10 June 2011” and the “Accused”).3

3. On 17 August 2012, the Prosecution seized the Pre-Trial Judge with a request for leave to file an amended indictment (the “Request of 17 August 2012”).4 The

1 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Filing of the Amended Indictment in Compliance with the Decision of 25 October 2012 & Request for Amended Arrest Warrants and Orders/Requests for Transfer and Detention, confidential, 8 November 2012.

2 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Request for Leave to Include Further Amendments to its Proposed Amended Indictment, 6 February 2013.

3 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Decision Relating to the Examination of the Indictment of 10 June 2011 issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi & Mr Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version dated the same day was filed on 16 August 2011. This Decision confirms the counts included in the Indictment of 10 June 2011 with the exception of the attempt to cause the death of 231 other persons, which does not fall within the constituent elements of the terrorist act but within those of attempted intentional homicide.

4 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Request for Leave to Amend the Indictment Pursuant to Rule 71(A)(ii), confidential, 17 August 2012, with a public redacted version dated 18 September 2012.

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Prosecution included with that Request an amended indictment (the “Indictment of 17 August 2012”).

4. On 4 October 2012, the Pre-Trial Judge issued the Prosecution with an order for clarification of certain proposed amendments in the Request (the “Order of 4 October 2012”).5

5. On 15 October 2012, the Prosecution responded by submitting a clarification brief (the “Clarification Brief”).6

6. On 25 October 2012, the Pre-Trial Judge ruled on the Request of 17 August 2012.7 He granted that request, subject to a number of amendments, and invited the Prosecution to file a new indictment incorporating them.8

7. Pursuant to the Decision of 25 October 2012, the Prosecution filed the Indictment of 8 November 2012.9 The Prosecution, moreover, added two further amendments in addition to those allowed by that Decision. It also requested the Pre-Trial Judge to issue arrest warrants including transfer and detention requests against the Accused.10 Lastly, the Prosecution sought leave to redact some information considered confidential from the Indictment of 8 November 2012 and from annexes A and B included therewith.11

5 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order for Clarification of Certain Proposed Amendments in the Prosecution’s Request for Leave To Amend the Indictment of 17 August 2012, 4 October 2012.

6 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Submissions Pursuant to the “Order for Clarification of Certain Proposed Amendments in the Prosecutor’s Request for Leave to Amend the Indictment of 17 August 2012”, confidential, 15 October 2012.

7 STL, The Prosecutor v. Ayyash et al., Case No. STL-01/PT/PTJ, Decision on the Prosecution Request of 17 August 2012 for Leave to File an Amended Indictment, 25 October 2012.

8 Id., Disposition.

9 Request of 8 November 2012, paras 4 and 7 to 8.


11 Id., para. 3.

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8. On 13 November 2012, Counsel for the Defence of Messrs. Ayyash, Badreddine, Oneissi and Sabra (the “Counsel for the Defence”) were invited to respond to the Request of 8 November 2012,12 which they did not do.

9. On 19 December 2012, the Prosecution requested the Pre-Trial Judge to stay his Decision relating to the Indictment of 8 November 2012 in order for him to review it once again, and, if necessary, to add to or amend it.13

10. On 6 February 2013, the Prosecution sought leave to amend the Indictment of 8 November 2012 and filed the Indictment of 6 February 2013 including all the proposed amendments.14

11. On 12 February 2013, Counsel for the Defence were invited to respond to the Request of 6 February 2013.15

12. On 19 and 20 February 2013, Counsel for the Defence of Messrs. Sabra16 and Oneissi17 responded to the Request of 6 February 2013 (respectively, the “Sabra Response” and the “Oneissi Response”).

13. On 6 March 2013, the Pre-Trial Judge granted the Prosecution leave to file a reply to the response from the Counsel for the Defence. He also directed the Prosecution to produce the additional evidence in support of the amendments requested on 6 February 2013 and invited Counsel for the Defence to respond to the Prosecution reply (the “Order of 6 March 2013”).18 Furthermore, the Pre-Trial Judge

12 STL, The Prosecutor v. Ayyash et al., Case No. STL-01/PT/PTJ, Scheduling Directive from the Pre-Trial Judge, confidential, 13 November 2012.

13 Transcript, p. 33-34 [French version] (30 January 2013).

14 Request of 6 February 2013, Annex A.

15 STL, The Prosecutor v. Ayyash et al., Case No. STL-01/PT/PTJ, Scheduling Directive from the Pre-Trial Judge, confidential, 12 February 2013.

16 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Sabra Response to Prosecution Motion to Amend the Amended Indictment, 19 February 2013.

17 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Réponse de la Défense à la “Prosecution Request for Leave to Include Further Amendments to its Proposed Amended Indictment”, confidential, 20 February 2013.

18 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Order granting the Prosecution Request for Leave to Reply to Defence Responses to the Prosecution’s Further Amendments to the Proposed Amended

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requested the Prosecution to provide him with explanations regarding the allegations contained in paragraphs 3 b) and 17 c) of the Indictment of 8 November 201219 regarding the relationship between Mr Ayyash and the user of the “purple 231” telephone in connection with the false claims of responsibility.

14. On 14 March 2013, the Prosecution filed a reply (the “Prosecution Reply”)20 to which Counsel for the Defence did not respond.

III. Statement of reasons

15. After having ruled on his jurisdiction (A) and recalled the applicable law (B), the Pre-Trial Judge shall review in succession the Request of 8 November 2012 (C) and the Request of 6 February 2013 (D). He shall rule lastly on the issuing of arrest warrants including transfer and detention orders (E) and on the requirements of confidentiality (F).

A. Jurisdiction

16. Rule 71 (A) (ii) of the Rules of Procedure and Evidence (the “Rules”) provides that between the moment when an indictment has been confirmed and when the case is assigned to the Trial Chamber, the Prosecution may only amend the indictment if authorised by the Pre-Trial Judge. Insofar as the original indictment was confirmed on 28 June 2011 and that the Trial Chamber has not yet been seized of the case in accordance with Rule 95 of the Rules, the Pre-Trial Judge has jurisdiction to rule on the Request of 8 November 2012 and on the Request of 6 February 2013.

B. Applicable Law

17. Rule 71 (B) of the Rules provides that an indictment may only be amended if there is “prima facie evidence to support the proposed amendment” and if “[…] the

Indictment, confidential, 6 March 2013.

19 Paragraphs 3 b) and 17 c) of the Indictment of 8 November 2012 are identical to those of the Indictment of 6 February 2013.

20 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Reply to “Sabra Response to Prosecution Motion to Amend the Amended Indictment”, confidential, 14 March 2013.

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amendment would not result in improper prejudice to the accused”. As he recalled in the Decision of 25 October 2012, the Pre-Trial Judge must, first and above all else, take into account the effect of an amendment on the rights of the accused, in particular to properly prepare his defence or to be tried without delay.21 To do so, when an amendment is a substantive one, he must ensure that it is based on prima facie evidence. If an amendment relates only to clarification, the Pre-Trial Judge must ensure that it does indeed strengthen the preciseness of the indictment and, thus, explain the content of the case and allow the accused to better comprehend it.22 The accused shall then be able to prepare and, as necessary, adapt their defence in terms of the clarification received.23 With that in mind, the Pre-Trial Judge has pointed out that two elements should be considered: on the one hand, the delays in the proceedings which might result from an amendment of the indictment and, on the other hand, the benefit that the accused and the judges might derive from it.24

C. The Request of 8 November 2012

18. The Pre-Trial Judge first recalls that the amendments proposed in the Indictment of 8 November 2012 were recapitulated in the Indictment of 6 February 2013. He notes, moreover, that they reflect, in part, those allowed by the Decision of 25 October 2012 relating to the Indictment of 17 August 2012.

19. However, the Pre-Trial Judge notes that in the Indictment of 8 November 2012, the Prosecution wished to provide two new “clarifications”. On the one hand, it intended to add to the last line of paragraph 14 (a) of the Indictment of 8 November 2012 the words that were underlined in paragraph 7 of the Request of 8 November 2012.25 On the other hand, it requested that, in accordance with the evidentiary analysis it has carried out, the number of telephone communications referred to in

21 Decision of 25 October 2012, para. 21.

22 Id., para. 22.

23 Ibid.

24 Ibid.

25 Request of 8 November 2012, para. 7.

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paragraph 20 (b) of the Indictment of 8 November 2012 be reduced from 213 to 212.26

20. The Pre-Trial Judge observes that these clarifications are amendments to the Indictment of 17 August 2012 which were not allowed by the Decision of 25 October 2012. They therefore should have, in principle, been the subject of a request for amendment filed in accordance with Rule 71 (A) (ii) of the Rules and, in any case, they must meet the criteria provided for in Rule 71 (B) of the Rules.27 In particular, the amendments must not be prejudicial to the rights of the Accused to properly prepare their defence and to be tried without undue delay.

21. The Pre-Trial Judge considers that paragraph 14 (a) of the Indictment of 8 November 2012 mentioned above might provide clarification to strengthen the preciseness of that Indictment. It is, consequently, in the interests of the Accused. The second amendment indicated above contained in paragraph 20 (b) of the Indictment of 8 November 2012 rectifies a clerical error and has no influence on the rights of the Accused. As a consequence, those two amendments are accepted. The Request of 8 November 2012 is based on that point.

22. However, insofar as the Indictment of 8 November 2012 was the subject of a request for amendment on 6 February 2013, which must be ruled upon, the Pre-Trial Judge considers that the Indictment of 8 November 2012 must be dismissed.

D. The Request of 6 February 2013

1. The arguments of the Parties

23. In the Request of 6 February 2013, the Prosecution sought leave to classify the amendments in two categories in order to clarify a number of allegations included in the Indictment of 8 November 2012.

26 Id., para. 8.

27 Decision of 25 October 2012, paras 19-21.

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24. The first category of amendments is aimed at removing the words ‘and/or’ from paragraphs 15 (c), 20 (a) and 38 of the Indictment of 8 November 2012 and to replace them with the words that have been highlighted in paragraphs 12, 15 and 17 of the Request of 6 February 2013.28 Moreover, in order to ensure consistency between paragraphs 15 (c) and 15 (d), the Prosecution proposes amending paragraph 15 (d) as indicated by the highlighting in paragraph 13 of the Request of 6 February 2013.29 The Prosecution states that those amendments are not prejudicial to the rights of the Accused, that they strengthen the preciseness of the Indictment of 8 November 2012 and are based on evidence which was already submitted in the context of the process for confirmation of the Indictment of 10 June 2011.30

25. The second category of amendments concerns the period during which the conspiracy to commit a terrorist act – namely the assassination of Mr Hariri – actually took place.31 Thus, according to the Prosecution, Messrs. Badreddine and Ayyash agreed to commit the attack against Mr Hariri at some time during the period between 11 November 2004 – the date of the first surveillance of Mr Hariri’s movements – and 14 February 2005 – the date the attack was carried out against him.32 With regard to Messrs. Oneissi and Sabra, the Prosecution states that they joined the conspiracy at a time between 22 December 2004 – the date they first visited the Arab University Mosque of Beirut in search of a suitable individual to make the false claims of responsibility for the attack – and 14 February 2005.33 With that in mind, the Prosecution proposes to amend paragraphs 42, 42 (a), 42 (c) and 48 of the Indictment of 8 November 2012 as indicated in paragraphs 26, 27, 28 and 29 of the Request of 6 February 2013, respectively.34 As a consequence, it also suggests amending Counts 6 to 9 of the Indictment of 8 November 2012 and, in particular, paragraphs 58, 60, 62 and 64 as mentioned in paragraph 32 of the Request

28 Request of 6 February 2013, paras 9-17.

29 Id., para. 13.

30 Id., para. 11.

31 Id., paras 18-32.

32 Id., para. 20.

33 Id., para. 21.

34 Id., paras 26-30.

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of 6 February 2013.35 The Prosecution adds, in that regard, that, being secret by nature, the existence of a conspiracy does not have to be formally established but may be inferred from the totality of the evidence of the case at hand.36 Moreover, the fact that the Prosecution extends the period during which the conspiracy occurred is not likely to cause prejudice to the Defence which must, in any case, prepare itself to meet the facts alleged in the Indictment of 8 November 2012.37

26. The Oneissi Defence opposes the Request of 6 February 2013 for the following reasons. The Prosecution omitted to precisely identify the facts and the evidence on which it relies to propose further amendments.38 Moreover, to allow the requested amendments would prejudice the rights of the Accused in that it would prevent them from properly preparing their defence –the date for the start of trial being provisionally set for 25 March 2013 – and would considerably extend the scope of the allegations brought against the Accused.39

27. The Sabra Defence also requested the Pre-Trial Judge to dismiss the Request of 6 February 2013 on the basis notably that: i) by seeking amendments to the Indictment of 8 November 2012, the Prosecution recognises de facto that it is not in a position to prove the charges alleged therein;40 ii) the Prosecution is unable to establish precisely when Mr Sabra became implicated in the conspiracy;41 iii) the proposed amendments constitute new allegations which extend the period of the conspiracy in which Mr Sabra allegedly participated and do not rely on specific acts which might be imputed to him;42 iv) in that context, Counsel for the Defence for Mr Sabra is not in a position to properly prepare his defence;43 and v) the

35 Id., paras 31-32.

36 Id., paras 23-24.

37 Id., para. 24.

38 Oneissi Response, paras 16-19.

39 Id., paras 20-32.

40 Sabra Response, para. 21.

41 Id., paras 27-29.



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Prosecution should precisely identify the evidence on which it relies to submit these new allegations.44

28. In its Reply, the Prosecution submits the following main arguments in support of the Request of 6 February 2013: i) Defence Counsel have not demonstrated that they would suffer a prejudice if the amendments proposed in the Request of 6 February 2013 were to be allowed;45 ii) Defence Counsel have already challenged defects of form before the Trial Chamber that relate to paragraphs 38 and 42 (c) of the Indictment of 10 June 2011 with regard to which the Pre-Trial Judge declared himself to be without jurisdiction;46 iii) by contesting, on the basis of pure speculation, the amendments to the Indictment of 10 June 2011 that relate to the date of the conspiracy, Defence Counsel are in reality seeking to obtain the annulment of Count 1, which has already been confirmed by the Pre-Trial Judge;47 iv) the proposed amendments to paragraphs 15 (c) and (d) as well as 20 (a) do not relate to substantive matters: they are merely aimed at providing clarification or additional information regarding the paragraphs concerned;48 v) the amendments to paragraph 38 do not constitute new factual allegations: they are based on information contained in other paragraphs of the Indictment of 8 November 2012;49 vi) the date changes contained in Count 1 are based on allegations included in the Indictment of 10 June 2011 confirmed by the Pre-Trial Judge50 and on the evidence provided in support of them;51 and v) the date changes contained in Counts 6 to 9 are based on allegations included in the Indictment of 10 June 2011 confirmed by the Pre-Trial Judge and on the evidence filed in support of them.52

44 Ibid.

45 Prosecution Reply, para. 5.

46 Id., paras 4-8.

47 Id., paras 9-15.

48 Id., para. 16.

49 Id., para. 18.

50 These allegations are reiterated at pages 7 to 11 of the Prosecution Reply.

51 Prosecution Reply, paras 19-23.

52 Id., para. 24.

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29. Furthermore, following the request for clarification from the Pre-Trial Judge regarding the relationship between Mr Ayyash and the user of the “purple 231” telephone, the Prosecution states that paragraphs 3 (b) and 17 (c) of the Indictment of 8 November 2012 which refer to it are in conformity with the Decision of 25 October 2012.53 In addition, the Prosecution considers that the only reasonable conclusion that may be drawn from the chain of events which preceded the attack against Mr Hariri – that is the identification of Mr Abu Adass (in December 2004), the purchase of the “red” telephones (on 4 January 2005), the disappearance of Mr Abu Adass (on 16 January 2005), the purchase of the Mitsubishi van (on 25 January 2005), the preparation of the video recording (between 16 January and 14 February 2005) and the purchase of the telecard (in February 2005) – is that Mr Ayyash – as the coordinator of the surveillance of Mr Hariri and of the purchase of the Mitsubishi van – must have necessarily been informed of the progress made with regard to the preparation of the false claim of responsibility.54 Moreover, Mr Ayyash and the user of the “purple 231” telephone contacted each other, on several occasions, between 23 January 2005 and 7 February 2005. Furthermore, on 6 February 2005, between 17.21 et 18.46, Mr Oneissi, Mr Sabra and the user of the “purple 231” telephone activated the same cell tower on eight occasions, which indicates that they might have been able to meet.55 It is during that period that the video cassette intended for the false claim must have been prepared.56 Even if there is no evidence to indicate who participated in those preparatory activities, the individuals implicated in the attack must have been informed of them.57 Otherwise, they would not have been able to finalise either the attack or the plan to call the media outlets concerned and to deliver the video cassette to them.58 Lastly, the telephones attributed to Mr Ayyash and to the user of the “purple 231” telephone were in the same locations during the

53 Id., paras 25-27.

54 Id., para. 30.

55 Id., paras 31-32.

56 Id., para. 32.

57 Ibid.

58 Ibid.

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relevant time periods, which indicates that they could have been able to communicate other than by telephone.59

2. Analysis of the proposed amendments

30. Two categories should be distinguished among the proposed amendments: amendments aimed at strengthening the preciseness of the allegations made against the Accused and which are therefore not substantive, and those which might have a notable affect on the rights of the Accused.

31. The first category contains the amendments which are intended to remove the words ‘and/or’ from paragraphs 15 (c), 20 (a) and 38 of the Indictment of 8 November 2012 and replace them with the words that are highlighted in paragraphs 12, 15 and 17 of the Request of 6 February 2013.60 To ensure consistency between paragraphs 15 (c) and 15 (d), the Prosecution also proposes to amend paragraph 15 (d) as indicated by the highlighting in paragraph 13 of the Request of 6 February 2013. The Pre-Trial Judge considers that those amendments are intended to strengthen the preciseness of the charges against the Accused, notably with regard to the alleged preparations of the attack against Mr Hariri and of the alleged false claim of responsibility. He deems, as a consequence, that those amendments meet the criteria referred to in Rule 71 (B) of the Rules, that they are not likely to prejudice the rights of the Accused and that, therefore, they should be allowed.

32. The second category of amendments requested contains those relating to the date of the conspiracy to commit a terrorist act. The Pre-Trial Judge notes that the period included in Count 1 of the Indictment of 6 February 2013 during which the conspiracy to commit a terrorist act – namely, the assassination of Mr Hariri – was formed has been extended, since it no longer ends on 16 January 2005 but on 14 February of the same year.61 However, the start of that period – that is 11 November 2004 – has been narrowed down since the words “at least” which preceded it in the



61 Id., paras 18-30.

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Indictment of 8 November 2012 have been removed in the Indictment of 6 February 2013.62

33. The Pre-Trial Judge considers that extending the period as referred to in the previous paragraph constitutes a substantive amendment of the Indictment of 8 November 2012 which must be precisely substantiated by prima facie evidence. Thus, by way of the Decision of 6 March 2013,63 the Pre-Trial Judge requested clarification from the Prosecution regarding the elements on which the proposed amendments were based and, in particular, the extension of the period referred to previously. In its Reply, the Prosecution precisely identified a series of events which took place between 16 January and 14 February 2005 inclusive.64 The Pre-Trial Judge takes note that those facts were already included in the Indictment of 10 June 2011 and that the evidence on which they are based has already been submitted to him during the process for confirmation of that Indictment.65 In light of this clarification, the Pre-Trial Judge considers that the amendments relating to the extension of the period during which the conspiracy to commit a terrorist act began, namely the conspiracy to assassinate Mr Hariri, does indeed rest firmly, first, on the evidence which has been submitted to him. As the acts invoked in support of these amendments and the evidence underpinning them are not new, the amendments are not, in principle, likely to prejudice the rights of the Accused in the preparation of their defence. He considers, as a consequence, that the amendments proposed in paragraphs 42, 42 (a), 42 (c), and 48 (a) to (h) of the Indictment of 6 February 2013 and which relate to Count 1 of that Indictment meet the criteria referred to in Rule 71 (B) of the Rules. They should, therefore, be allowed.

34. The second category also includes the amendments which follow from the Prosecution request to extend the period relating to the commission of the acts as accomplices to the crimes referred to in Counts 6 to 9 of the Indictment of 8

62 Id., paras 26-27.

63 Decision of 6 March 2013, paras 11-16 and Disposition.


65 Id., paras 20-21.

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November 2012.66 Indeed, according to that Indictment, this period would no longer start on 16 January 2005 but on 22 December 2004.67 The Pre-Trial Judge considers that extending that period constitutes a substantive amendment to the Indictment of 8 November 2012 which must be precisely supported by prima facie evidence. As pointed out by the Prosecution, these amendments build on those of Count 1 of the Indictment of 8 November 2012.68 The Pre-Trial Judge takes note that the facts in support of these amendments were already included in the Indictment of 10 June 2011 and that the evidence on which they are based has already been submitted to him during the process for confirmation.69 In light of these clarifications, the Pre-Trial Judge considers that the amendments to Counts 6 to 9 proposed in the Indictment of 6 February 2013 do indeed rest firmly on the prima facie evidence that was submitted to him. As the facts invoked and the evidence in support of these amendments are not new, the amendments are not, in principle, likely to prejudice the rights of the Accused. As a consequence, the amendments proposed in paragraphs 58, 60, 62 and 64 of the Indictment of 6 February 2013 and which relate to Counts 6 to 9 of that Indictment meet the criteria referred to in Rule 71 (B) of the Rules. They should, therefore, be allowed.

35. Lastly, the Pre-Trial Judge takes note of the clarification provided by the Prosecution regarding the amendments proposed in paragraphs 3 (b) and 17 (c) of the Indictment of 8 November 2012 and which are reproduced in the Indictment of 6 February 2013 on the subject of the alleged communications between Mr Ayyash and the user of the “purple 231” telephone with respect to the alleged false claim of responsibility. He notes that the Prosecution confirms that these two persons exchanged no telephone calls with one another between 22 December 2004 and 17 January 2005 – the alleged period during which Mr Abu Addass was identified and recruited – and 14 February 2005 when the alleged false claim of responsibility was made.70 The Pre-Trial Judge observes that these amendments are based, in reality, on


67 Ibid.

68 Request of 6 February 2013, para. 31.


70 Order of 6 March 2013, para. 15.

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inferences connected to the role of Mr Ayyash as coordinator for the surveillance of Mr Hariri and the purchase of the Mitsubishi van, and, as such, the need for him to be informed of the progress of the actions connected with the alleged false claim of responsibility. This would appear to be substantiated by communications exchanged in particular between Mr Ayyash and the user of the “purple 231” telephone between 23 January 2005 and 7 February 2005 and by the fact that they could have been at the same location at crucial times.71 The Pre-Trial Judge considers that these amendments are founded, first, in conformity with the criteria required to confirm an indictment recalled in the Decision of 28 June 2011 to the extent that the reasoning of the Prosecution is based on assumptions that are sufficiently credible. The Pre-Trial Judge nevertheless recalls that in this context, his powers are limited. He cannot in any way act as a substitute for the judges dealing with the substance of the case, who alone bear the responsibility of determining whether, at the end of adversarial proceedings, the evidence has been established against the Accused and whether they are guilty, beyond any reasonable doubt, of the crimes imputed to them. At this stage of the proceedings, the Pre-Trial Judge’s sole mission is to review the proposed amendments of the Indictment of 10 June 2011 in the light of the evidence gathered and submitted by the Prosecution to determine whether, first, proceedings can be brought against the Accused taking into account these amendments.72 In this regard, the Pre-Trial Judge considers that it is not necessary to reconsider these amendments which have already been approved in the Decision of 25 October 2012.73

36. The Pre-Trial Judge considers, as a consequence, that the Request of 6 February 2013 is founded.

71 Prosecution Reply, paras 30-33.

72 Decision of 28 June 2011, para. 26.

73 Decision of 25 October 2012, paras 34-35.

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E. The arrest warrants

37. On 28 June 2011, the Pre-Trial Judge issued arrest warrants including transfer and detention orders against the Accused.74 On 8 July 2011, he issued international arrest warrants including transfer and detention orders against the same Accused.75

38. In the Request of 8 November 2012, the Prosecution requests the Pre-Trial Judge to adapt those arrest warrants with the amendments introduced in the Indictment of 8 November 2012.76

39. Insofar as the Indictment of 8 November 2012 has been dismissed,77 the Pre-Trial Judge considers that it is not necessary to rule on that request.

F. The requirements of confidentiality

40. As it did for the Indictment of 10 June 2011, the Prosecution seeks redaction of the public version of the Indictment of 8 November 2012 in order to ensure the proper conduct of the ongoing investigations and to secure the protection of the witnesses.

41. Insofar as the Indictment of 8 November 201278 has been dismissed, the Pre-Trial Judge considers that it is not necessary to rule on that request.

74 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Warrant to Arrest Mr Salim Jamil Ayyash including Transfer and Detention Order, 28 June 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Warrant to Arrest Mr Mustafa Amine Badreddine including Transfer and Detention Order, 28 June 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Warrant to Arrest Mr Hussein Hassan Oneissi including Transfer and Detention Order, 28 June 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, Warrant to Arrest Mr Assad Hassan Sabra including Transfer and Detention Order, 28 June 2011.

75 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, International Warrant to Arrest Mr Salim Jamil Ayyash including Transfer and Detention Request, 8 July 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, International Warrant to Arrest Mr Mustafa Amine Badreddine including Transfer and Detention Request, 8 July 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, International Warrant to Arrest Mr Hussein Hassan Oneissi including Transfer and Detention Request, 8 July 2011; STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I, International Warrant to Arrest Mr Assad Hassan Sabra including Transfer and Detention Request, 8 July 2011.

76 Request of 8 November 2012, paras 11 c) and d).

77 Cf. para. 22 above.

78 Ibid.

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DISPOSITION

FOR THESE REASONS,

Pursuant to Rules 71 (A) (ii) and (B) and 74 of the Rules,


GRANTS the Request of 8 November 2012 concerning the amendments to the Indictment of 10 June 2011;

DECLARES the Request of 8 November 2012 unfounded in all other respects;

DISMISSES the Indictment of 8 November 2012;

GRANTS the Request of 6 February 2013;

AUTHORISES the amendments to the Indictment of 10 June 2011 as they appear in the Indictment of 6 February 2013;

DECLARES that the Indictment of 6 February 2013 annuls and replaces the Indictment of 10 June 2011; and

ORDERS the Prosecution to file a signed version of the Indictment of 6 February 2013 by 17 April 2013 at 16.00 hrs. at the latest.

Done in English, Arabic and French, the French version being authoritative.

Leidschendam, 12 April 2013



Before: Trial Chamber

Title: Decision on Compliance with the Practice Direction for the Admissibility of Witness Statements under Rule 155

Short title: Admissibility of Witness Statements TC

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THE TRIAL CHAMBERCase No.: STL-11-01/PT/TCBefore: Judge Robert Roth, Presiding

Judge Micheline Braidy Judge David Re Judge Janet Nosworthy, Alternate Judge Judge Walid Akoum, Alternate Judge

Registrar: Mr Daryl Mundis, Acting RegistrarDate: 30 May 2013Original language: EnglishType of document: Public

THE PROSECUTOR v.



DECISION ON COMPLIANCE WITH THE PRACTICE DIRECTION FOR THE ADMISSIBILITY OF WITNESS

STATEMENTS UNDER RULE 155








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Admissibility of Witness Statements TC

Introduction

1. The Prosecution requested the Trial Chamber to rule on whether it may admit into evidence, without cross-examination, certain witness statements that do not comply with all of the requirements for admission into evidence specified in the relevant Practice Direction. The Defence submissions agree, that in certain circumstances, non-complying statements can be admitted into evidence. The Trial Chamber must decide whether and in what circumstances such statements may be received into evidence.

Procedural history

2. On 20 February 2013, the Prosecution requested the Pre-Trial Judge to refer to the Trial Chamber the issue of the admission into evidence – under Rule 155 of the Rules of Procedure and Evidence – of ten witness statements, without cross-examination.1 The Prosecution also expressly moved the Trial Chamber to admit the statements into evidence. The Defence of the Accused Mr. Salim Jamil Ayyash, Mr. Mustafa Amine Badreddine, Mr. Hussein Hassan Oneissi, and Mr. Assad Hassan Sabra opposed the motion, and in particular, the Prosecution’s request to admit the statements into evidence at this stage of the proceedings.2

3. Ruling on this motion under Rule 89 (E) on 15 April 2013,3 the Pre-Trial Judge decided to submit to the Trial Chamber only the narrower issue of the general status of statements that do not comply with the formal requirements for admitting written

1 STL-11-01/PT/PTJ, The Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, Prosecution’s Motion Requesting the Pre-Trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89 (E), Confidential, 20 February 2013.

2 Response on behalf of Mr. Ayyash to “Prosecution’s Motion Requesting the Pre-Trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89(E), Confidential, 4 March 2013; Response to Prosecution Motion Requesting the Pre-trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89 (E), Confidential, 4 March 2013 (Badreddine); Réponse à la “Prosecution’s Motion Requesting the Pre-trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89 (E)”, Confidential, 4 March 2013 (Oneissi); Sabra Defence Response to Prosecution Motion Requesting the Pre-trial Judge to Refer its Rule 155 Application to the Trial Chamber Pursuant to Rule 89 (E), Confidential, 27 February 2013.

3 STL-11-01/PT/PTJ, Decision on the Prosecution’s Motion to Refer to the Trial Chamber the Requests to Admit the Written Statements of Witnesses pursuant to Rules 89 (E) and 155 of the Rules of Procedure and Evidence, 15 April 2013.

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statements into evidence under Rule 155 as specified in the ‘Practice Direction on the Procedure for Taking Depositions under Rules 123 and 157 and for Taking Witness Statements for Admission in Court under Rule 155’.4

4. On 29 April 2013,5 the Trial Chamber invited the parties to file submissions on how any non-compliance with the Practice Direction would affect the admissibility of the statements under Rule 155.6 The Prosecutor and counsel for the four Accused consequently filed their submissions.7

Submissions of the Parties

5. Rule 155 ‘Admission of Written Statements and Transcripts in lieu of oral testimony’ allows the receipt into evidence of witness statements but without cross-examination. Rule 155 (A) provides that ‘the Trial Chamber may admit in lieu of oral testimony the evidence of a witness in the form of a written statement, or a transcript of evidence which was given by a witness in proceedings before the Tribunal, which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment’. The Practice Direction prescribes the pre-conditions for admitting statements into evidence under the Rule.

6. The Prosecution and Defence submissions agree that under certain circumstances statements that do not comply with the Practice Direction may be

4 STL-PD-2010-02, Issued 15 January 2010.

5 The submissions filed on 4 March 2013 by the Defence of Mr. Badreddine and Mr. Oneissi in response to the Prosecution’s motion of 20 February 2013 did not specifically address the issues the subject of the Trial Chamber’s decision of 20 April 2013.

6 STL-11-01/PT/TC, Scheduling Order Relating to the Impact of the Non-Compliance with the Formal Requirements for the Written Statements of Witnesses on their Admissibility, 29 April 2013.

7 STL-11-01/PT/TC, Prosecution’s Submissions Regarding the Admission of Statements under Rule 155 which do not Comply with the Practice Direction, 10 May 2013; Response on Behalf of Mr. Ayyash to Prosecution’s Submissions Regarding the Admission of Statements under Rule 155 which do not Comply with the Practice Direction, 21 May 2013; Defence for Mr Badreddine’s Submissions Regarding the Admissibility of Statements under Rule 155 which do not Comply with the Applicable Practice Direction, 21 May 2013; Jonction à la « Response on behalf of Mr. Ayyash to Prosecution’s Submissions Regarding the Admission of Statements under Rule 155 which do not comply with the Practice Direction », 21 May 2013; Response on Behalf of Mr. Sabra to Prosecution’s Submissions Regarding the Admission of Statements under Rule 155 which do not Comply with the Practice Direction, 21 May 2013.

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admitted into evidence. They disagree on the status of the Practice Direction and the precise circumstances in which the Trial Chamber may admit non-complying statements into evidence.

7. According to the Prosecution, Practice Directions are only non-binding administrative guidelines; binding the Trial Chamber would undermine its judicial discretion to determine the admissibility of statements at trial. The reliability of witness statements must be assessed on a case by case basis. The essential issue is whether the statement is reliable as opposed to whether it complies strictly with the Practice Direction. Statements not conforming to all of the criteria in the Practice Direction may nonetheless be admitted into evidence if they contain sufficient indicia of reliability. Statements which are inherently reliable, due to the nature of their evidence, should be admitted into evidence despite their non-compliance.8

8. The submissions of counsel for the four Accused agree that although the Practice Direction is presumptively binding, the Trial Chamber may, in certain circumstances, nonetheless admit into evidence statements that do not comply strictly with its terms. All disagree with the Prosecution’s assertion that the Practice Direction operates as a guideline. The Defence submissions also agree with the Prosecution that any departure from compliance with the Practice Direction must be assessed on a case by case basis.

9. Counsel for Mr. Sabra submit that the Prosecution’s argument that the Practice Direction is a non-binding guideline is misconceived. In principle, all witness statements must comply with the letter and spirit of the Practice Direction but in practice exceptions may be allowed, depending on the consent of the opposing Party, and whether the ‘mischief that the Rule 155 Practice Direction was created to prevent applies’.9 Although compliance with the Practice Direction is mandatory, non-complying statements could be received into evidence in two circumstances. One is where all Parties consent while the other would be where a Party opposing

8 For example, witnesses who do not recognize specific telephone numbers, subscriber information or mobile handsets falsely obtained with their identification and thus falsely attributed to them – being facts that that are not reasonably in dispute; Prosecution submissions, para. 16.

9 Sabra submissions, para. 1.

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the Party that took the statement seeks to tender it into evidence (for example, the Defence tendering into evidence a statement of a Prosecution investigator). It could thus be admitted into evidence under Rule 155 because ‘where such a statement favours the position and case of the opposing party the concerns about reliability of such deficient statements melt away’.10 This is argued as analogous to the exception to the hearsay rule in some common law jurisdictions, reflecting the statement against interest rule. This, it is submitted, makes the statement inherently more reliable.

10. Counsel for Mr. Badreddine submit that the Practice Direction is presumptively binding and not a mere guideline, and, relying upon the case-law of international courts and tribunals, state that Practice Directions are binding legal documents of the Court that cannot be ignored by the Parties.11 The Trial Chamber does, however, retain an overarching discretion to admit evidence under Rule 149 (C) and may admit non-complying statements. But it should not do so lightly. And this requires either the consent of the Parties or exceptional circumstances. Non-compliance with certain terms of the Practice Direction, such as the absence of a declaration certifying the truth of a statement, that the witness has been informed of the consequences of making an untruthful statement, and the date on which it was made, however, would be ‘intolerable’. The Trial Chamber should declare that it will not tolerate non-compliance with any of the requirements of the Practice Direction, or alternatively, with those ‘fundamental requirements’ (as described).12

11. Counsel for Mr. Ayyash likewise argue that Practice Directions are binding and that the Practice Direction exists to preserve the reliability and integrity of evidence. The procedural safeguards set out in the Practice Direction are necessary where evidence is admitted without cross-examination. There are two permissible exceptions to this (those argued by counsel for Mr. Sabra. The Defence of Mr. Oneissi joined the submissions of the Defence of Mr. Ayyash.

10 Sabra submissions, para. 23.

11 The Prosecution, however, by filing its motion is not attempting to ignore the Practice Direction.

12 Badreddine submissions, para. 20.

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Analysis

The policy rationale for Rule 155 and its international equivalents

12. Rule 155 (A) allows the Trial Chamber to receive witness evidence in lieu of oral testimony and without cross-examination. The factors in favour of admitting such evidence include whether it is cumulative, or is background material, or concerns the impact of crimes upon victims, or relates to the character of the accused.

13. Admitting witness statements into evidence without allowing cross-examination necessitates providing procedural safeguards, and most particularly that written statements or transcripts must not contain evidence going to the proof of the acts or conduct of the accused. The evidence contained in the statements must also meet the basic requirements for the admission of evidence, in that it must be relevant and probative, and its probative value must not be outweighed by its prejudicial effect.13 After hearing the parties the Trial Chamber decides whether to require the witness to appear for cross-examination, either in The Hague or by video-link.

14. The Rule aims to reduce the court time needed for Parties to present their cases, thus increasing the expeditiousness and efficiency of trials. It allows the Parties to submit statements or previous court transcripts in place of live witness testimony, but while safeguarding the procedural rights of the Parties.

15. Rule 155 has its origins in similar rules originating in Rule 92 bis of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), later adopted by the International Criminal Tribunal for Rwanda and in a modified form by the Special Court for Sierra Leone.14 The first version of

13 Rule 155 (A)(ii)(b); see also e.g. ICTY, Prosecutor v. Stanislav Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis(C), 7 June 2002, para.12; Prosecutor v. Radovan Karadžić, IT-95-5/18-PT, Decision on Prosecution’s Third Motion for Admission of Statements and Transcripts of Evidence in lieu of Vive Voce Testimony pursuant to Rule 92 bis (Witnesses for Sarajevo Municipality), 15 October 2009, para. 4; ICTR, The Prosecutor v. Bagosora and others, ICTR-98-41-T, Decision on Prosecutor’s Motion for the Admission of Written Witness Statements under Rule 92 bis, 9 March 2004, para. 12.

14 The SCSL’s Rule 92 bis (B) provides that ‘information submitted may be received in evidence… if it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation’. Its Appeals Chamber has held that ‘proof of reliability is not a condition of admission; all that is required is that the information should be capable of corroboration in due course’, Prosecutor v. Sam Hinga Norman, Moinina Fofaana, Allieu

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the ICTY Rules,15 however, provided only that witnesses should testify orally before the Tribunal (as in many domestic systems). International criminal proceedings, though, differ in many ways from domestic criminal trials including in their length, seriousness, complexity, cost and the location of the courts and tribunals away from the crime scenes. Consequently, in circumstances in which almost all witnesses had to travel internationally to the seat of the Tribunal in The Hague, The Netherlands, and in which many were providing evidence that was uncontroversial, or uncontested, or cumulative, or of background or historical interest, the length (and hence the increased cost) of the ICTY’s early trials were viewed as unnecessarily long.

16. Subsequently, in 2001, Rule 92 bis was added to the ICTY Rules in an attempt to reduce the length of trials, while simultaneously attempting to safeguard the fundamental procedural rights of the Parties. The ICTY’s Annual Report to the United Nations of September 2001 explained that the new Rule was created ‘to facilitate the admission by way of written statement of peripheral or background evidence in order to expedite proceedings while protecting the rights of the accused under the Statute.’16 Rule 155 has the same policy rationale.

Relationship of the Practice Direction to the Statute and Rules of Procedure and Evidence

17. Article 28 of the Statute of the Tribunal specifies that the judges of the Special Tribunal shall adopt Rules of Procedure and Evidence. Rule 32 (E) provides that the President of the Tribunal may, ‘in consultation with the Council of Judges, the

Kondewa, SCSL-2004-14-AR73, Decision on Appeal Against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence”, 16 May 2005, para. 26.

15 IT/32, 14 March 1994, adopted 11 February 1994.

16 Eighth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/56/352, S/2001/865, 17 September 2001, p. 17; see also ICTY, Prosecution v. Jadranko Prlić and others, IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, para. 43. In examining the policy rationale for the Rule change the ICTY Appeals Chamber held that the policy consideration of an economical trial may be relevant to determining whether to admit written statements in the interests of justice, but under its Rule 89 (F), Prosecutor v. Slobodan Milošević, IT-02-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, 30 September 2003, para. 20.

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Registrar, the Head of Defence Office and the Prosecutor, issue Practice Directions, consistent with the Statute and the Rules, addressing detailed aspects of the conduct of proceedings before the Tribunal’. In exercising this function, the President has issued several Practice Directions.

18. Practice Directions are intended to assist the Tribunal and its Chambers in managing procedural matters not specified in the Statute or Rules. They are subordinate to, supplement, and must be consistent with the Statute and Rules of Procedure and Evidence. They are issued at the President’s discretion and in his administrative capacity; they are neither adopted nor approved by the judges of the Tribunal sitting in plenary session.

19. A Practice Direction would be invalid to the extent of any inconsistency with the Statute or Rules. The Practice Direction on the Procedure for Taking Depositions under Rules 123 and 157 and for Taking Witness Statements for Admission in Court under Rule 155 prescribes the pre-conditions for admitting statements into evidence under Rule 155. The Trial Chamber is satisfied that this Practice Direction, by providing criteria regulating the conditions for the admissibility of statements under Rule 155, is consistent with both the Statute and the Rules and that it is intended to operate conjunctively with Rule 155 and does not weaken the Trial Chamber’s judicial discretion in determining the admission of evidence.

20. This Practice Direction is expressed in mandatory terms, specifying in Article 2.1 that ‘in order for the Trial Chamber to consider the written statement of a witness to be admissible under Rule 155, the following requirements must be satisfied…’ Although Practice Directions are legally binding documents that the Parties must follow, a Chamber should not inflexibly enforce strict adherence to them, and must retain a general discretion to depart from strict application where it could result in injustice or prejudice to a Party.17

21. The Trial Chamber is thus satisfied that departure from the strict terms of a Practice Direction is permissible where the interests of justice so require.

17 See e.g. on the issue of the status of Practice Directions generally, ICTY, Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-A, Decision Authorising Appellant’s Brief to Exceed the Limit Imposed by the Practice Direction on the Length of Motions and Briefs, 29 August 2001, para. 6.

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Criteria for admissibility of statements under Rule 155

22. The Prosecution and the Defence agree that in some circumstances witness statements may be admitted into evidence under Rule 155 notwithstanding some non-compliance with the Practice Direction. They agree that this must be assessed on an individual basis. All submissions agree that the basic policy requirement for admitting statements under the Rule is to establish the necessary indicia of reliability. The Trial Chamber concurs with each of these propositions.

23. Rule 155 contains strict criteria for admitting witness statements into evidence without cross-examination. This is necessarily so as the policy rationale for Rule 155 and its international equivalents – of expediting trials utilizing international criminal procedural law –entails constricting the normal rights of a Party to cross-examine witnesses called by an opposing Party. A Trial Chamber must therefore perform a careful balancing exercise in weighing the public interest in ensuring a fair and expeditious trial against the prejudice that a Party may experience in not cross-examining a witness testifying against its interests. It must exercise this power sparingly and provide cogent reasons for doing so.

24. The Practice Direction that supplements Rule 155 is directed at ensuring that – in circumstances in which the right to cross-examine is curtailed – witness statements have the indicia of reliability necessary to admit them into evidence under Rule 155. The Trial Chamber must therefore undertake a similar balancing exercise in deciding whether there are circumstances in which following the Practice Direction to the letter would cause an injustice (or an incurable prejudice) to any Party by excluding an otherwise reliable statement from admission into evidence.

25. The Trial Chamber must decide whether it can receive into evidence a statement that does not comply with the Practice Direction. The question therefore is whether any criterion in the Practice Direction is so fundamental in guaranteeing the indicia of reliability that non-compliance will bar the statement from admission into evidence under Rule 155. And, conversely, whether it is possible to list or categorise any criteria, a breach of which could be considered so ‘minor’ or ‘inconsequential’ as not to affect a statement’s reliability.

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26. The Practice Direction’s numerous criteria for admissibility include: that a statement must have a witness information sheet as its first page specifying, (in descending order) family and given names, father’s and mother’s names, nicknames, date and place of birth, language(s) spoken, written language(s) if different, language(s) used in the interview, current and former occupation, date(s), times and place of interview(s), name of interviewer(s), name of interpreter(s), and names of other persons present during the interview(s). Some criteria are evidently less significant than others in giving a statement the indicia of reliability necessary to admit it into evidence without cross-examination.

27. Examining the list, the Trial Chamber does not believe that the interests of justice could be served by denying the admissibility of a statement under Rule 155 solely for non-compliance with a minor technical requirement of the Practice Direction. To illustrate, failing to list a former occupation or a place of birth may have no impact on the statement’s reliability. Nor would listing this information on a final page rather than on its cover. Likewise, as the Prosecution submits, a missing interpreter’s signature, or the witness not having signed the certificate, may not affect the reliability of the statement.18 These types of minor breaches of the Practice Directions could thus safely be disregarded for the purposes of establishing the statement’s reliability and admitting it into evidence. Where the Trial Chamber considers a breach of the Practice Direction to be minor in nature it will consider whether the statement can be admitted into evidence under Rule 155, and will decide the issue on a case by case basis after hearing from the Parties.

28. The Trial Chamber therefore holds that where the interests of justice so require, it may deem a statement ‘as complying’ for the purposes of admissibility under Rule 155, notwithstanding a minor breach of the Practice Direction. The reasons for departing from the strict requirements of the Practice Direction, however, should be compelling. Moreover, the Trial Chamber must always be otherwise satisfied of the indicia of the statement’s reliability, especially those concerning identity,

18 The Prosecution, however, also submits that an omission to verify a witness’s identity with an identity card will not affect the reliability of the statement; Prosecution’s submissions, para. 16.

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acknowledging the statement’s veracity, and that its deponent has either read it or had it read to them in their own language.

29. On the other hand, however, some requirements of Articles 1 and 2 of the Practice Direction would appear to be so fundamental to establishing the indicia of reliability that it is difficult to envisage overlooking non-compliance. These could include not properly identifying a witness, or failing to warn them that they could be prosecuted for contempt or false testimony for knowingly and wilfully making a false statement, knowing that it may be used in proceedings at the Tribunal (as specified in Article 2 par. 2 (d)). (This list is non-exhaustive). Where such breaches occur the Trial Chamber will examine also each application on its merits and examine the individual circumstances of each witness statement.

30. The Trial Chamber does not concur with the Defence submissions specifying two possible exceptions – namely where all Parties consent to the tendering of the statement, and where an opposing Party attempts to tender the other Party’s witness statement into evidence. The consent of the Parties is just one factor that the Trial Chamber will consider in determining whether a statement should be admitted into evidence under Rule 155 (or any other Rule). The Trial Chamber also disagrees with the argument that the mere act of a Party tendering a witness statement taken by an opposing Party provides the necessary indicia of reliability to accept it into evidence. It is the combination of factors surrounding the statement (its content, its deponent, the circumstances of its making) rather than the identity of the tendering Party that provides the statement with the necessary indicia of reliability. Moreover, the Rules of the Tribunal do not prohibit hearsay evidence and the common law rule identified by the Defence submissions operates in a restricted manner in certain national legal systems. The situation is not analogous to the principles of international criminal procedural law generally, and in particular, to those provided in the Rules of the Special Tribunal.

31. The Trial Chamber will therefore adopt the following principles in deciding applications to admit into evidence under Rule 155 statements that do not comply with the Practice Direction:

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a) First, the overriding principle is to determine the reliability of a witness statement;

b) Second, it will depart from the strict terms of the Practice Direction only where compelling reasons exist;

c) Third, this will be done on a case by case basis. Each application will be considered separately and carefully scrutinized;

d) Fourth, some breaches will be considered so consequential or fundamental to establishing the reliability of a statement that the non-compliance cannot be overlooked. Providing an exhaustive list of such possible breaches is not possible; and

e) Fifth, in the case of minor breaches, if sufficient indicia of reliability exists to overlook the breach, statements may be deemed to comply with the requirements for admissibility.

Inapplicability of Rule 155 (B)

32. Rule 155 (B) allows the admission of unsigned statements, ‘in exceptional circumstances’ as an exception to the general rule that ‘the statement must have been signed by the person who records and conducts the questioning…’. This Rule, however, is strictly applicable to the absence of a signature on the statement and cannot be construed as giving a general discretionary power in respect of all non-compliances with the Practice Direction.

Rectifying defects and other consequences of non-compliance

33. The rationale of referring this issue to the Trial Chamber before it is seized of the case under Rule 95 was to notify the Parties (and in particular the Prosecution) in advance of the trial as to whether statements not fully complying with the Practice Direction could nevertheless be admitted into evidence. Emphasis should thus now be given to attempting to rectify any statements violating the requirements of the Practice Direction.

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34. The Prosecution – if it seeks to tender statements under Rule 155 without requiring witnesses to appear for cross-examination – should therefore make all reasonable attempts to rectify any non-complying statements before seeking to admit them into evidence. The Trial Chamber urges the Prosecution to do this in a timely manner.

35. Where this is not possible – and if the Prosecution still wishes to tender the statement into evidence – and where the breach is so significant that in the absence of any rectifying factors it casts doubt on the reliability of the statement, the Trial Chamber will require the witness to attend for cross-examination (either in The Hague or via video-link).

36. Alternatively, in appropriate circumstances, the Prosecution could seek to tender such a statement under Rule 158 (unavailable persons). The Trial Chamber would still have to be satisfied of the reliability of the statement under Rule 158 (A) (ii).

Admitting statements into evidence under Rule 155 at this stage of the proceedings

37. The Trial Chamber is not seized of the case under Rule 95 and does not yet have a sufficient basis upon which it could decide whether the Prosecution’s ten statements should be admitted as evidence at trial, under either Rule 155 or another Rule. The Trial Chamber will decide the admissibility of any statement proposed for admission into evidence (under any Rule) on a case by case basis at the appropriate time, noting that any Party may seek to tender statements under the Rule at any stage of the trial.

FOR THESE REASONS the Trial Chamber:

(i) Defers until an appropriate time the Prosecution’s application to admit statements into evidence under Rule 155; and

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(ii) Urges the Prosecution to take all necessary steps to remedy or rectify any non-compliance with the Practice Direction identified in the statements proposed for admission under Rule 155.


Leidschendam, The Netherlands, 30 May 2013

Judge Robert Roth, Presiding

Judge Micheline Braidy Judge David Re



Title: Decision on Alleged Defects in the Form of the Amended Indictment of 21 June 2013

Short title: Defects in Form of Indictment TC

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137

THE TRIAL CHAMBER

Case No.: STL-11-01/PT/TC

Before: Judge David Re, Presiding Judge Janet Nosworthy Judge Micheline Braidy Judge Walid Akoum, Alternate Judge

Registrar: Mr Daryl Mundis, Acting Registrar

Date: 13 September 2013



THE PROSECUTOR v.



DECISION ON ALLEGED DEFECTS IN THE FORM OF THE AMENDED INDICTMENT OF 21 JUNE 2013







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Defects in Form of Indictment TC

INTRODUCTION

1. Defence counsel for three of the Accused, Mr. Mustafa Amine Badreddine, Mr. Hussein Hassan Oneissi and Mr. Assad Hassan Sabra challenged the Prosecutor’s amended indictment dated 21 June 2013 alleging defects in its form. The Prosecution opposed the challenges.

2. The Trial Chamber has decided that the challenges are without merit and has dismissed the three Defence motions. The Trial Chamber has found that the amended indictment provides counsel for the Accused with enough detail to inform them clearly of the nature and cause of the charges and to allow them to prepare a defence of the case at trial.

PROCEDURAL HISTORY

3. On 10 June 2011, the Prosecution filed an indictment against Mr. Salim Jamil Ayyash, Mr. Badreddine, Mr. Oneissi and Mr. Sabra charging them with crimes related to the death of Rafik Hariri and others in Beirut on 14 February 2005.1 The indictment was confirmed by the Pre-Trial Judge on 28 June 2011.2

4. On 25 June 2012, Defence counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra filed preliminary motions under Rule 90 (A) of the Tribunal’s Rules of Procedure and Evidence alleging defects in the form of that indictment.3

1 STL, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, Case No. STL-11-01/I/PTJ, Indictment, confidential, 10 June 2011. A public redacted version dated the same day was filed on 16 August 2011.

2 STL-11-01/I/PTJ, Decision relating to the Examination of the Indictment of 10 June 2011 issued against Mr. Salim Jamil Ayyash, Mr. Mustafa Amine Badreddine, Mr. Hussein Hassan Oneissi & Mr. Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version was filed on 16 August 2011.

3 STL-11-01/PT/TC, Sabra’s Preliminary Motion Challenging the Form of the Indictment, confidential, 25 June 2012, with a public redacted version dated the same day; Preliminary Motion Submitted by the Defence for Mr. Mustafa Amine Badreddine on the Basis of Rule 90 (A) (ii) of the Rules of Procedure and Evidence, 25 June 2012; The Defence for Hussein Hassan Oneissi Preliminary Motion on Defects in the Form of the Indictment, 25 June 2012. The Prosecution responded in Prosecution Consolidated Response to the Defence Motions Alleging Defects in the Form of the Indictment, confidential, 25 July 2012.

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5. On 17 August 2012, the Prosecution, however, sought the Pre-Trial Judge’s leave to amend the indictment.4 Recognising that an amendment to the indictment could affect the existing Defence challenge to the form of the indictment, the Trial Chamber, on 12 September 2012, deferred considering the Defence motions pending the Pre-Trial Judge’s decision on amending the indictment.5

6. On 25 October 2012, the Pre-Trial Judge granted the Prosecution’s request to amend the indictment,6 and on 8 November 2012 the Prosecution filed an amended indictment. However, it also sought the Pre-Trial Judge’s authorisation to make two further clarifications to the indictment.7 Defence counsel for Mr. Sabra then filed a motion alleging defects in the form of the amended indictment.8

7. On 5 December 2012, noting that the Pre-Trial Judge had not yet decided the Prosecution’s request to ‘clarify’ the amended indictment, the Trial Chamber deferred deciding that motion.9 Defence counsel for Mr. Sabra also filed a motion before the Pre-Trial Judge seeking additional ‘particulars’ in regard to the amended indictment.10 Noting the similarities between that motion and the preliminary motions alleging defects in the form of the indictment pending before the Trial Chamber, the Pre-Trial Judge declared that he lacked jurisdiction to rule on the motion for particulars.11

4 Rule 71 (A) (ii), STL-11-01/PT/PTJ, Prosecution Request for Leave to Amend the Indictment Pursuant to Rule 71(A) (ii), confidential, 17 August 2012, with a public redacted version filed on 18 September 2012.

5 STL-11-01/PT/TC, Interim Decision on Alleged Defects in the Form of the Indictment, confidential, 12 September 2012.

6 STL-11-01/PT/PTJ, Decision on the Prosecution Request of 17 August 2012 for Leave to File an Amended Indictment, 25 October 2012.

7 STL-11-01/PT/PTJ, Filing of the Amended Indictment in Compliance with the Decision of 25 October 2012 & Request for Amended Arrest Warrants and Orders/Requests for Transfer and Detention, confidential, 8 November 2012.

8 STL-11-01/PT/TC, Sabra’s Second Preliminary Motion Challenging the Form of the Indictment, 26 November 2012.

9 STL-11-01/PT/TC, Decision on Sabra’s Second Preliminary Motion Challenging the Form of the Indictment, 5 December 2012.

10 STL-11-01/PT/PTJ, Motion for Particulars, 30 November 2012.

11 STL-11-01/PT/PTJ, Decision Relating to the Sabra Defence Motion for Further Particulars, 22 January 2013.

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8. On 6 February 2013, the Prosecution again requested leave of the Pre-Trial Judge to amend the indictment – but this time in respect of the amended indictment filed on 8 November 2012.12 On 12 April 2013, the Pre-Trial Judge granted leave for the Prosecution to amend the amended indictment, declaring the indictment of 6 February 2013 to be the operative indictment.13 The Prosecution subsequently (on 17 April 2013) filed a signed copy of this amended indictment.14

9. The following day the Trial Chamber declared the previous Defence motions alleging defects in the form of the indictment to be moot, and requested Defence counsel to file any fresh motions by 3 May 2013.15 Counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra, on 2 and 3 May 2013, filed preliminary motions under Rule 90 (A) of the Rules alleging defects in the form of the amended indictment.16 The Prosecution filed a consolidated response on 24 May 2013.17

10. The Trial Chamber dismissed these motions on 12 June 2013.18 On 19 June 2013, counsel for Mr. Oneissi and Mr. Sabra requested certification to appeal the decision, and counsel for Mr. Badreddine requested certification and reconsideration.19 The

12 STL-11-01/PT/PTJ, Prosecution Request for Leave to Include Further Amendments to its Proposed Amended Indictment, 6 February 2013.

13 STL-11-01/PT/PTJ, Decision Relating to the Prosecution Requests of 8 November 2012 and 6 February 2013 for the Filing of an Amended Indictment, 12 April 2013.

14 STL-11-01/PT/PTJ, Prosecution’s Filing of the Signed Version of the Amended Indictment in Compliance with the Pre-Trial Judge’s Decision of 12 April 2013 & Request for Amended Arrest Warrants and Orders/Requests for Transfer and Detention, 17 April 2013.

15 STL-11-01/PT/TC, Order Authorising the Defence to File Preliminary Motions Challenging Defects in the Form of the Amended Indictment of 6 February 2013, 18 April 2013.

16 STL-11-01/PT/TC, Consolidated Motion on Form of the Indictment, 2 May 2013; Exception préjudicielle formée contre l’Acte d’accusation du 6 février 2013 par la Défense de M. Oneissi en vertu de l’article 90(A)(ii), confidentiel, 3 mai 2013; Double exception préjudicielle présentée par la Défense de M. Badreddine à l’encontre de la «Décision relative aux requêtes du Procureur du 8 novembre 2012 et du 6 février 2013 aux fins de déposer un acte d’accusation modifié» et de «l’Acte d’accusation modifié», 3 mai 2013.

17 STL-11-01/PT/TC, Prosecution Consolidated Response to Preliminary Defence Motions Alleging Defects in the Amended Indictment, 24 May 2013.

18 STL-11-01/PT/TC, Decision on Alleged Defects in the Form of the Amended Indictment, 12 June 2013.

19 STL-11-01/PT/TC, Requête de la Défense de M. Oneissi aux fins de la certification de l’appel de la décision de la Chambre de première instance «Decision on Alleged Defects in the Form of the amended Indictment», 19 juin 2013; Sabra Defence Request for Leave to Appeal the Decision on Alleged Defects in the Form of the Amended Indictment, 19 June 2013; Requête de la Défense de M. Badreddine en autorisation aux fins de réexamen et ou

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Presiding Judge of the Trial Chamber rejected the request for reconsideration,20 and on 5 July 2013 the Trial Chamber certified the three motions for appeal.21 Counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra then filed separate appeals.22 On 21 June 2013, before the Trial Chamber certified its decision for appeal, the Prosecution filed a further request for leave to amend the Amended Indictment of 6 February 2013.23 The Pre-Trial Judge allowed this on 17 July 2013,24 and on 2 August 2013 the Prosecution filed the amended indictment.25

11. On 5 August 2013, the Appeals Chamber dismissed the three appeals against the Trial Chamber’s Decision as ‘moot’, and declared that the Defence may file preliminary motions before the Trial Chamber directed at the Amended Indictment of 21 June 2013.26

12. On 13 August 2013, the Trial Chamber issued a scheduling order for the filing of fresh challenges,27 and on 19 August 2013 counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra filed revised preliminary motions on the form of the amended

en certification aux fins d’appel de la Décision du 12 juin 2013 relative aux exceptions préjudicielles fondées sur un vice de forme de l’acte d’accusation, 19 juin 2013.

20 STL-11-01/PT/TC, Décision refusant à la Défense de M. Badreddine l’autorisation de déposer une requête en réexamen, 2 juillet 2013.

21 STL-11-01/PT/TC, Décision sur les requêtes aux fins de certification en vue d’interjeter appel contre la décision de la Chambre de première instance du 12 juin 2013, 5 juillet 2013.

22 STL-11-01/PT/AC/AR90.2, Oneissi Defence Appeal of the Decision on the Alleged Defects in the Form of the Amended Indictment, 22 July 2013; Sabra Defence Appeal of the Decision on Alleged Defects in the Form of the Amended Indictment, 16 July 2013; Mémoire d’appel de la Défense de M. Badreddine à l’encontre de la Décision de la Chambre de première instance du 12 juin 2013 relative aux exceptions préjudicielles fondées sur des vices de forme de l’Acte d’accusation, 17 juillet 2013.

23 STL-11-01/PT/PTJ, Prosecution Further Request for Leave to Amend the Indictment, 21 June 2013.

24 STL-11-01/PT/PTJ, Order Granting the Prosecution Request for Leave to Reply to the Defence Responses to ‘Prosecution Further Request for Leave to Amend the Indictment’, 17 July 2013.

25 STL-11-01/PT/PTJ, Prosecution’s Filing of the Signed Version of the Amended Indictment in Compliance with the Pre-Trial Judge’s Decision of 31 July 2013 & Request for Amended Arrest Warrants and Orders/Requests for Transfer and Detention, 2 August 2013.

26 STL-11-01/PT/AC/AR90.2, Decision on Defence Appeals Against Trial Chamber’s ‘Decision on Alleged Defects in the Form of the Amended Indictment’ (‘Appeals Chamber’s Decision’), 5 August 2013.

27 STL-11-01/PT/TC, Scheduling Order for the Defence to File Preliminary Motions Challenging the Form of the Amended Indictment of 21 June 2013, 13 August 2013.

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indictment.28 The Prosecution filed a consolidated response on 30 August 2013.29 The motions and response are very similar in form, although shorter, to those filed in May 2013. This decision is thus similar to that of 12 June 2013 dismissing those earlier challenges to the form of the previous amended indictment.

APPLICABLE LAW

13. Article 16 of the Tribunal’s Statute ‘Rights of the Accused’ outlines the rights of the Accused to a fair trial including that to ‘a fair and public hearing’. International human rights instruments mandate that accused persons have the right to be informed of the charges against them,30 and Article 16 (4) (a) mirrors these rights by providing:

In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her.

14. Rule 68 (D) further elaborates on this right by stating that an indictment must contain ‘the name and particulars of the suspect and a concise statement of the facts of the case and of the crime with which the suspect is charged’.

15. Rule 3 (A) provides that the Rules shall be interpreted in accordance with the spirit of the Statute, and, relevantly, according to international standards on human

28 STL-11-01/PT/TC, The Defence for Hussein Hassan Oneissi Preliminary Motion on the Defects in the Form of the Amended Indictment of 21 June 2013, Confidential (‘Oneissi motion’), 19 August 2013, with a public redacted version filed on 20 August 2013; Preliminary Motion on the Form of the Indictment, Confidential (‘Sabra motion’), 19 August 2013, with a public redacted version filed on 23 August 2013; Nouvelle exception préjudicielle présentée par la Défense de M. Badreddine a l’encontre de l’Acte d’accusation modifié du 21 Juin 2013, (‘Badreddine motion’), 19 août 2013.

29 STL-11-01/PT/TC, Prosecution Consolidated Response to Preliminary Motions on the Form of the Indictment, Confidential (‘Prosecution response’), 30 August 2013, with a public redacted version filed on 13 September 2013.

30 See e.g., Article 6 (3) (a) of the European Convention on Human Rights and Article 14 (3) (a) of the International Covenant on Civil and Political Rights which provide the right ‘to be informed promptly, and in detail in a language which he understands of the nature and cause of the accusation against him’; see also Article 8 (2) (b) American Convention on Human Rights, the right to ‘prior notification in detail to the accused of the charges against him’. The case-law of the ECtHR holds that a fair trial requires that indictments include the charges and form of liability alleged; see e.g., Penev v. Bulgaria, Appl. 20494/04, 7 January 2012, para. 44; Varela Geis v. Spain, Appl. 61005709, 5 March 2013, para. 42.

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rights, and the general principles of international criminal law. The rights of an accused person to be informed of the charges against them under international human rights law are set out in the Statute and Rules. Additionally, numerous decisions of other international criminal courts and tribunals have interpreted and expanded upon these rights.

16. Articles 21 (4) and 20 (4) and 17 (4) (a) (respectively) of the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and Special Court for Sierra Leone (SCSL) are identical to Article 16 (4) (a) of the Special Tribunal’s Statute. Rule 47 (C) of the Rules of Procedure and Evidence of both ad hoc tribunals is also identical to the Special Tribunal’s Rule 68 (D).31 The Trial and Appeals Chambers of both ad hoc tribunals, and of the SCSL, have extensively interpreted their equivalents of the Special Tribunal’s Article 16 (4) (a) and Rule 68 (D).

17. In examining this international case law, the following general principles of international criminal law emerge:

• the Prosecution must plead the material facts underpinning the charges with enough detail to inform an accused person clearly of the nature and cause of the charges to allow them to prepare a defence,32

• there is a clear difference between the material facts (which must be pleaded) and the evidence proffered to prove them,33

31 Although its wording differs slightly, the SCSL’s Rule 47 (C) is in substance the same, providing ‘The indictment shall contain, and be sufficient if it contains, the name and particulars of the suspect, a statement of each specific offence of which the named suspect is charged and a short description of the particulars of the offence. It shall be accompanied by a Prosecutor’s case summary briefly setting out the allegations he proposes to prove in making his case’.

32 ICTY, Prosecutor v. Furundzija, IT-95-17/1-A, Judgement, 21 July 2000 (‘Furundzija Judgement’), paras 61, 147; Prosecutor v. Kupreškić, IT-95-16-A, Judgement, 23 October 2001 (‘Kupreškić Judgement’), para. 88; Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004 (‘Blaškić Judgement’), para. 209; Prosecutor v Stakić, IT-97-24-A, Judgement, 22 March 2006, (‘Stakić Judgement’), para. 116; Prosecutor v. Simić, IT-95-9-A, Judgement, 28 November 2006 (‘Simić Judgement’), para. 20; see also, Ntabakuze v. The Prosecutor, ICTR-98-41A-A, Judgement, 8 May 2012, para. 30 and the line of authority at the ICTR cited there.

33 Blaškić Judgement, para. 210; Stakić Judgement, para. 116.

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• the Prosecution is not required to plead the evidence intended to prove the pleaded material facts,34

• it would be unworkable for an indictment to contain all the evidence the Prosecutor proposes to introduce at the trial,35

• an indictment must be considered as a whole, and select paragraphs should be read in context with the entire document,36

• the materiality of a particular fact cannot be decided in the abstract and depends on the nature of the Prosecution’s case,37

• the alleged criminal conduct is decisive in determining the degree of specificity required in the indictment,38

• regarding the identity of perpetrators for whose acts an accused is charged, but without being charged with personally committing the crimes, it is sufficient to identify such perpetrators by category or group in relation to a particular crime site,39

• a date may be considered to be a material fact if it is necessary in order to inform a defendant clearly of the charges so that he may prepare his defence,40

34 Furundzija Judgement, paras 61, 147, 153; ICTR, The Prosecutor v. Ntagerura, ICTR-99-46-A, Judgement, 7 July 2006, (‘Ntagerura Judgement’), para. 21; Simić Judgement, para. 20; The Prosecutor v. Uwinkindi, ICTR-01-75-AR72 (c), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011, (‘Uwinkindi Decision’), para. 4.

35 Furundzija Judgement, para. 153.

36 Rutaganda v. The Prosecutor, ICTR-96-3-A, Judgement, 26 May 2003, para. 304; Gacumbitsi v. The Prosecutor, ICTR-2001-64-A, Judgement, 7 July 2006, para. 123; The Prosecutor v. Seromba, ICTR-2001-66-A, Judgement, 12 March 2008, para. 27.

37 Kupreškić Judgement, para. 89; Blaškić Judgement, para. 210; see also, Uwinkindi Decision at para. 4 and the line of authorities cited there.

38 Kupreškić Judgement, para. 89; Blaškić Judgement, para. 210.

39 ICTY, Prosecutor v. Krnojelac, IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 46; Blaškić Judgement, para. 218; Simba v. The Prosecutor, ICTR-01-76-A, Judgement, 27 November 2007, paras 71-72; Muvunyi v. The Prosecutor, ICTR-2000-55-A-A, Judgement, 29 August 2008 (‘Muvunyi Judgement’), para. 55; Renzaho v. The Prosecutor, ICTR-97-31-A, Judgement, 1 April 2011, para. 64.

40 Ndindabahizi v. The Prosecutor, ICTR- 01-71-A, Judgement, 16 January 2007 (‘Ndindabahizi Judgement’),

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• a reasonable range of dates may be pleaded where precise dates cannot be specified as to when the alleged criminal conduct occurred,41

• a broad range of dates does not of itself invalidate a paragraph in an indictment,42

• the precision with which dates have to be charged varies from case to case,43

• the Prosecution must offer its best understanding of the case in the indictment,44

or the ‘best information available’,45

• the identities of co-conspirators are required to be pleaded when they are known,46 and

• a chamber must distinguish between a disagreement with the alleged facts (which is to be determined at trial) and a defect in the form of the indictment,47

and the material facts and the evidence proving those material facts.48

para. 19.

41 ICTY, Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Objection by Momir Talić to the Form of the Amended Indictment, 20 February 2001, para. 22; Ndindabahizi Judgement, paras. 19-20; Muvunyi Judgement, para. 58.

42 Muvunyi Judgement, para. 58; Rukundo v. The Prosecutor, ICTR-2001-70-A, Judgement, 20 October 2010, para. 163; Bagosora and Nsengiyumva v. The Prosecutor, ICTR-98-41-A, Judgement, 14 December 2011, para. 150.

43 Ndindabahizi Judgement, para. 20.

44 Kupreškić Judgement, paras 92, 95; ICTY, Prosecutor v. Kvočka, IT-98-30/1-A, Judgement, 28 February 2005, para. 30.

45 Prosecutor v. Sesay, SCSL-04-15-T, Judgement, 2 March 2009, para. 398.

46 The Prosecutor v. Nahimana, ICTR-96-11-T, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 5 November 1999, para. 19; The Prosecutor v. Barayagwiza, ICTR-97-19-I, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 11 April 2000, p. 3; The Prosecutor v. Nyiramasuhuko, ICTR-97-21-T, Decision on Nyiramashuko’s Preliminary Motion based on Defects in the Form and the Substance of the Indictment, 1 November 2000, paras 58, 60; The Prosecutor v. Bikindi, ICTR-2001-72-I, Decision on the Defence Motion Challenging the Temporal Jurisdiction of the Tribunal and Objecting to the Form of the Indictment and on the Prosecutor’s Motion Seeking Leave to File an Amended Indictment, 22 September 2003, para. 38 (i).

47 ICTY, Prosecutor v. Kvočka, IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, para. 40.

48 Furundzija Judgement, para. 153.

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18. The Trial Chamber endorses and adopts these decided general principles of international criminal law and will apply them in determining the Defence challenges to the form of the indictment.

DISCUSSION

19. The main issue for determination is whether the amended indictment provides a concise statement of the case against the Accused by setting out the material facts in sufficient detail to allow their counsel to prepare a defence at trial.

20. Requesting the Trial Chamber ‘not to annul’ the indictment of 10 June 2011 is not properly part of a motion under Rule 90 (A) (ii). This decision disposes of this issue first, and then deals with the specific challenges to the form of the indictment, either individually or, where convenient, thematically.

Dismissal of relief seeking ‘not to annul’ the indictment of 10 June 2011

21. Counsel for Mr. Badreddine asks the Trial Chamber to:

(a) declare that the indictment of 10 June 2011 is ‘not annulled’, and ‘to place on record the Defence’s contention that such annulment cannot be relied on against the Accused, and that it cannot prejudice his rights in these or future proceedings’,

(b) find the amended indictment to be unacceptably vague and therefore defective, and

(c) to suspend the proceedings and prosecution (or, in the alternative, to order the Prosecutor to amend the amended indictment in the manner sought).

22. The Trial Chamber, however, cannot do what is requested in paragraph 21 (a). The indictment of 21 June 2013 is operative; the original indictment of 10 June 2011, having been succeeded by subsequent amended indictments, is no longer operative. As the Trial Chamber does not sit in review of a decision of the Pre-Trial Judge, it lacks the jurisdiction to declare that an inoperative indictment is ‘not annulled’. Moreover, the Appeals Chamber – in respect of the appeal against the form of the

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amended indictment of 6 February 2013 – declined ‘to entertain the appeals when their underlying premise–namely the existence of the previous indictment–has been fundamentally altered’ (meaning by the confirmation of the newly amended indictment of 21 June 2013).49 The Trial Chamber therefore denies the relief sought.

23. In relation to the request to ‘place on record the Defence’s contention that such annulment cannot be relied on against the Accused, and that it cannot prejudice his rights in these or future proceedings’, counsel for Mr. Badreddine have not demonstrated any prejudice or unfairness to their client. The Trial Chamber therefore dismisses the request.

24. In relation to the alternative form of relief sought, the Trial Chamber has determined in paragraphs 25-50 that the indictment does not lack specificity. It thus follows that the Trial Chamber will not ‘suspend’ (or ‘stay’) the proceedings or prosecution.

A circumstantial case tried in absentia requires greater specificity in an indictment

25. Counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra argued that greater specificity is required in the amended indictment because the proceedings will be held in absentia, and the Prosecution is relying heavily on circumstantial evidence.50 The Prosecution responded that neither the in absentia proceedings nor the circumstantial nature of the evidence require greater specificity in the indictment, and that the Defence has provided no legal authority to support this argument.51

26. The Trial Chamber is unaware of any legal authority supporting the Defence argument and is unpersuaded by arguments that in absentia proceedings and circumstantial evidence, either alone or in combination, impose a more onerous pleading burden on the Prosecutor in filing an indictment. When filing an indictment, a Prosecutor is not required to attempt to predict whether proceedings will later be

49 Appeals Chamber’s Decision, para. 20.

50 Badredinne motion, paras 21-25; Sabra motion, paras 7-8; Oneissi motion, para. 13.

51 Prosecution response, paras 30-31.

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held in absentia. The quality and sufficiency of the material pleaded in an indictment, rather than the category of case or type of evidence of itself, is determinative in deciding whether an indictment is defective in form.

27. Moreover, the totality of the case against these Accused is contained in the combination of the amended indictment, the Prosecution’s pre-trial brief and the evidence intended to be used at trial – and these have been disclosed to their counsel. It is this combination of information, rather than that found in the indictment alone, that provides Defence counsel with the notice of the nature of the case necessary to allow them to properly defend their clients. Thus, even if the Prosecution is required to provide better particulars to counsel defending accused in proceedings held in absentia, and where the evidence is circumstantial, Defence counsel are informed by the totality of that information, rather than only that specified in an indictment. This challenge is thus dismissed.

Using the Lebanese Code of Criminal Procedure

28. Counsel for Mr. Oneissi argued that Rule 68 (D) should be interpreted in a manner more consistent with Article 131 of the Lebanese Code of Criminal Procedure because the Tribunal’s Statute and Rules regarding the specificity required in an indictment are too broad. An indictment in a more specific form would assist the Defence in its preparation.52 The Prosecution responded that the Special Tribunal should judge the requirements of an indictment ‘according to the same well-established principles which govern indictments’ at the ICTY and ICTR,53 and that counsel for Mr. Oneissi failed, in the absence of ambiguity, to justify needing to refer to the Lebanese Code.54

52 Oneissi motion, paras 10, 12.

53 Prosecution response, para. 5. In summarising these ‘well-established princples’, the Prosecution states that it ‘must plead the charges against an accused and the material facts supporting those charges with sufficient precision so as to provide notice of the nature and cause of the charges against the accused. The Prosecution must plead its case according to the best information available to it. It is not required to plead the evidence by which it intends to prove the material facts, or material facts of which it is not aware’.

54 Prosecution response, paras 6, 25-29.

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29. The Trial Chamber considers that Rule 68 (D) clearly specifies the requirements for an indictment, and that the case law from other international courts and tribunals aids its interpretation. Moreover, there is no inconsistency between Article 131 of the Lebanese Code and Rule 68 (D), especially when considering that the Special Tribunal’s Prosecutor must file a comprehensive pre-trial brief to supplement an indictment, which is not required under the Lebanese Code. And moreover there is no lacuna in the Rules requiring resort to the Lebanese Code.

Specific defects

30. The Defence motions allege specific defects in the form of the pleading of the amended indictment. These are dealt with thematically in turn:

Pleading of the alleged conspiracy

31. The amended indictment, at paragraph 3, alleges that the four Accused participated in a conspiracy with others aimed at committing a terrorist act to assassinate Rafik Hariri. It then outlines in broad terms the role of each in the conspiracy alleged.

32. Paragraph 48 avers that the four ‘together with others as yet unidentified, including the assassination team, agreed to commit a terrorist act by means of an explosive device in order to assassinate HARIRI’. It then further charts the alleged role of each Accused in the conspiracy alleged.

33. The dates of the alleged conspiracy are specified in the particulars of count one, in paragraph 54. There, it is alleged that participation in the conspiracy occurred – in the case of Mr. Badreddine and Mr. Ayyash between 11 November 2004 and 14 February 2005, and for Mr. Oneissi and Mr. Sabra between 22 December 2004 and 14 February 2005.55

34. Counsel for each of the three Accused challenged the pleading of the alleged conspiracy in the amended indictment. The complaints essentially concern the

55 And in relation to Mr. Oneissi and Mr. Sabra in counts 6, 7, 8 and 9 between 22 December 2004 and 14 February 2005.

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dates of the alleged conspiracy. Further complaints are made concerning a lack of particulars of the alleged conspiracy.

Dates of the alleged conspiracy

35. Counsel for Mr. Badreddine submitted that the time period pleaded for the conspiracy was ‘increasingly ambiguous’, contradictory and inconsistent in relation to its alleged commencement date and Mr. Badreddine’s alleged participation in it. They also submit that pleading this date range is ‘incompatible with the statement that Mr. Badreddine was allegedly among the early members of the conspiracy’ asking how this could be correct if he could have joined it as late as 14 February 2005?56

36. Counsel for Mr. Oneissi argue that the date range provided for the conspiracy is unreasonable as the nature of the case against the Accused cannot be ascertained.57 And, more broadly, the amended indictment does not contain any details regarding his alleged involvement in the design and execution of the conspiracy.58 Counsel for Mr. Sabra argue that the amended indictment lacks sufficient detail in relation to the date range of the alleged conspiracy and Mr. Sabra’s complicity, thus undermining their ability to prepare for trial.59

37. The Prosecution responded by referring to international criminal law jurisprudence which holds that the range of dates pleaded in an indictment must not be overly broad. The dates pleaded in the amended indictment, it is argued, provide the Defence with sufficient notice of the relevance of the time frame of the conspiracy pleaded.60

38. The Trial Chamber agrees. It is permissible, and indeed normal, to plead in an indictment the occurrence of an act within a range of dates if its precise date is

56 Badreddine motion, paras 34-37.

57 Oneissi motion, paras 21-23.

58 Oneissi motion, para. 19.

59 Sabra motion, paras 10 (u)-(v).

60 Prosecution response, paras 45-48.

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unknown. The ICTR Appeals Chamber, in summarising the relevant international jurisprudence, has recently held that:61

‘a broad date range, in and of itself, does not invalidate a paragraph of an indictment. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged. Obviously, there may be instances where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’.

39. Counsel for Mr. Badreddine’s submission that pleading such a range of dates is ‘incompatible’ with an allegation that one Accused was an early participant in a conspiracy is misconceived. Here, the Prosecution has alleged the existence of a conspiracy and the participation of each of the Accused in that conspiracy but between specified dates. There is nothing impermissible in this form of pleading, and indeed, the Special Tribunal’s Appeals Chamber has held – in relation to the duration of a conspiracy – that ‘no explicit time-line is required for the validity. The agreement stands, even though it is a long-term one or has no predefined or foreseen term’.62

40. An indictment must be viewed in its totality, and pleading that an act relating to a conspiracy occurred within a three month period – in all of the circumstances alleged here – is not disproportionate or overly broad. The circumstances in which the Accused are alleged to have come to participate in the alleged conspiracy are a matter for evidence at trial and need not be pleaded as material facts in an indictment, but should be notified to the Defence in a timely manner before trial.

61 Bagosora Judgement, para. 150.

62 STL-11-01/I, Interlocutory Decision on the Applicable Law; Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (‘Applicable Law Decision’), 16 February 2011, para. 196.

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The identity of the alleged co-conspirators

41. Counsel for Mr. Sabra claim that the amended indictment is defective in not explicitly naming the other alleged co-conspirators and in not clarifying certain aspects of their involvement in the alleged conspiracy, while arguing that the conspiracy is related solely to the four Accused.63

42. As a general principle of pleading indictments in international criminal law, a Prosecutor is required to plead the identity of known co-conspirators.64 The Prosecution has done so.65 Further, a Prosecutor has ‘no requirement concerning the identification of all individuals’,66 and is not required to plead the names of those whose identity is unknown.

43. The Trial Chamber is thus satisfied that the amended indictment pleads sufficient material facts to allow Defence counsel to prepare their case for trial.

The False Claim of Responsibility

44. The amended indictment, at paragraphs 3 (c)-(d), 23 and 44, alleges that Mr. Oneissi and Mr. Sabra participated in finding and then using a person, Abu Adass, to make a video-taped false claim of responsibility for the Hariri assassination, which was ultimately broadcast on Al-Jazeera on 14 February 2005.

45. The amended indictment pleads the following material facts, by alleging that Mr. Oneissi and Mr. Sabra participated together in:

• identifying and finding a suitable individual (Abu Adass) for making the false claim,

63 Sabra motion, paras 10 (b), (t).

64 For example, The Prosecutor v. Nahimana, ICTR-96-11-T, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 5 November 1999, para. 19; The Prosecutor v. Barayagwiza, ICTR-97-19-I, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 11 April 2000, p. 4; The Prosecutor v. Bikindi, ICTR-2001-72-I, Decision on the Defence Motion Challenging the Temporal Jurisdiction of the Tribunal and Objecting to the Form of the Indictment and on the Prosecutor’s Motion Seeking Leave to File an Amended Indictment, 22 September 2003, para. 38 (i).

65 Prosecution response, para. 38.

66 Applicable Law Decision, para. 195.

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• disseminating, after the attack, statements falsely attributing responsibility for the attack,

• ensuring the delivery to Al-Jazeera of a video, with a letter attached containing the false claim, by telephoning Al-Jazeera on 14 February 2005, and

• demanding, with menace, that the video be broadcast (i.e., ensuring that it would be broadcast).

More specifically it alleges that Mr. Oneissi (using the pseudonym Mohammed) allegedly met Abu Adass on 16 January 2005, and, on 14 February 2005 observed Al-Jazeera employees locating the video-cassette which had been placed in a tree near its offices in Beirut. Mr. Sabra is alleged in the amended indictment to have telephoned Al-Jazeera shortly before this to inform the broadcaster of the video’s location.

46. Counsel for Mr. Oneissi submits that these pleadings do not specify clearly enough the respective roles of Mr. Oneissi and Mr. Sabra in making the false claim. Counsel for Mr. Oneissi and Mr. Sabra state that they need further details of the alleged involvement of their clients in recruiting Abu Adass. Both submit that the description of the observation and delivery of the video-cassette, including telephone calls to Al-Jazeera falsely claiming responsibility,67 are impermissibly vague and fail to establish the Accused’s participation.

47. The Prosecution responds that the amended indictment pleads all the necessary material facts in relation to these alleged events, rather than the evidence which will establish the material facts pleaded at trial.68

48. The Prosecution’s submissions have merit. The Prosecution has pleaded the material facts necessary for such an averment in an indictment. Further and more broadly, the pleading provides sufficient information to Defence counsel to inform them clearly of the nature and cause of the charges against their clients such as to

67 Oneissi motion, paras 26-29, 32-33; Sabra motion, paras 10 (e)-(f), (i), (r), (s). In this context, the Sabra motion argues that the word ‘or’ on the phrase ‘ONEISSI and SABRA made a total of 4 calls’ is insufficiently clear, and the allegation should be stricken if the Prosecution is unable to specify who made each call, para. 10 (s).

68 Prosecution response, paras 16, 32, 57-64, 72-73.

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allow them to prepare a defence for trial. The issues raised in the Defence submissions generally relate to the evidence to be led at trial (and particulars between the Parties) rather than what must be pleaded in an indictment.

Allegations of vagueness in pleading

49. Counsel for Mr. Sabra argued that the amended indictment is vague in 23 discrete aspects. These include using the words ‘each and together with’, ‘participated together with’, ‘ensuring the delivery of the video’, ‘to co-ordinate the false claim’, ‘phones ... were used from at least 1 January 2005’, ‘a number of days prior to the attack’, ‘surveillance occurred on at least fifteen days’, ‘activity ... is illustrated inter alia’, ‘in the vicinity of the mosque’, ‘locating’, ‘chose’, ‘seek a suitable individual’, ‘together with others as yet unidentified’, ‘sometime between at least 11 November 2004 and 16 January 2005’, and ‘identifying and then using’.69 Counsel for Mr. Badreddine complained that the amended indictment is imprecise in 20 distinct respects, attacking as imprecise the use of words such as ‘monitor’, ‘key times’, ‘coordinate’ and ‘often’.70 Moreover, they disagree with the distinction made between material facts and evidence as set out in the Trial Chamber’s decision of 12 June 2013 arguing that the distinction is inevitably arbitrary because the case is circumstantial.71 Counsel for Mr. Oneissi submit that the deficiencies and lack of clarity (e.g., whether relating to the alleged conspiracy or the false claim of responsibility) result in an unacceptably vague amended indictment which must be cured to ensure adequate preparation for trial.72

50. The Trial Chamber disagrees with these submissions. The amended indictment pleads the material facts necessary for a valid indictment; each of the circumstances complained of by Defence counsel relates to the evidence to be presented at trial. The totality of the case against these Accused is contained in the amended indictment, the Prosecution’s pre-trial brief, the evidence disclosed to their counsel, and the evidence

69 Sabra motion, para. 10.

70 Badreddine motion, paras 29-33, 38-42.

71 Badredinne motion, para. 23 referring to para. 14 of the decision.

72 E.g., Oneissi motion, paras 25, 27, 30, 34.

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to be presented at trial. These documents must be viewed as a package providing an Accused with the material necessary to mount a proper defence, but the indictment itself is only required to plead material facts. It has done so.

CONCLUSION

51. The amended indictment therefore provides counsel for the Accused with enough detail to inform them clearly of the nature and cause of the charges to allow them to prepare a defence of the case at trial. The amended indictment is not defective in its form.

CERTIFICATION FOR APPEAL

52. The Trial Chamber requests Defence counsel, if they wish to file a motion seeking certification of this decision for appeal under Rule 126, to clearly set out and concisely list any issues in the decision that they wish to have certified for appeal. This should reference any paragraph in the decision on the issues for which certification is sought. The Prosecution should respond to any requests for certification by Friday 27 September 2013.

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53. DISPOSITION

FOR THESE REASONS, the Trial Chamber:

(1) Dismisses the motions alleging defects in the form of the amended indictment filed by Defence counsel acting for Mr. Mustafa Amine Badreddine, Mr. Hussein Hassan Oneissi and Mr. Assad Hassan Sabra, and

(2) Orders the Prosecution to respond to Defence requests, if any, to certify this decision for appeal by 27 September 2013.

Done in Arabic, English, and French, the English version being authoritative.

Leidschendam, The Netherlands 13 September 2013

___________________________

Judge David Re, Presiding

_______________________

Judge Janet Nosworthy

_______________________

Judge Micheline Braidy



Title: Public redacted version of 19 September 2013 Decision on Appeal by Counsel for Mr Oneissi against Pre-Trial Judge’s “Decision on Issues Related to the Inspection Room and Call Data Records”

Short title: Inspection of Call Data Records AC

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THE APPEALS CHAMBERCase No.: STL-11-01/PT/AC/AR126.4Before: Judge David Baragwanath, Presiding

Judge Ralph Riachy Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko Judge Ivana Hrdličková, Judge Rapporteur

Registrar: Mr Daryl MundisDate: 2 October 2013Original language: EnglishType of document: Public

THE PROSECUTOR v.



PUBLIC REDACTED VERSION OF 19 SEPTEMBER 2013 DECISION ON APPEAL BY COUNSEL FOR MR ONEISSI AGAINST PRE-TRIAL JUDGE’S “DECISION ON ISSUES RELATED TO THE

INSPECTION ROOM AND CALL DATA RECORDS”



Legal Representatives of Victims: Mr Peter Haynes Mr Mohammad F. Mattar Ms Nada Abdelsater-Abusamra




Counsel for Mr Assad Hassan Sabra: Mr David Young Dr Guénaël Mettraux

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Inspection of Call Data Records AC

INTRODUCTION

1. 1. We are seized of an appeal filed by counsel for Mr Oneissi1 against two aspects of a decision of the Pre-Trial Judge.2 In the Impugned Decision, the Pre-Trial Judge dismissed, in part, the Defence’s joint request for the inspection of certain Call Data Records (“CDRs”) pursuant to Rule 110 (B) of the Special Tribunal for Lebanon’s Rules of Procedure and Evidence (“Tribunal” and “Rule”, respectively) which counsel claim are in the possession of the Prosecutor and are material to the preparation of their defence. The first aspect concerns the application of the first of three limbs of Rule 110 (B), which entitles the Defence to documents material to their preparation for trial. The second relates to the application of Rule 121 (A) as to the form in which CDRs are to be disclosed. While it is possible that the Pre-Trial Judge applied Rule 110 (B), the reasons for the decision do not demonstrate clearly that he did so correctly. It is also unclear whether the order for disclosure complies with Rule 121 (A). We therefore remand the Defence request for inspection of the CDRs to the Pre-Trial Judge for reassessment consistent with this decision.

BACKGROUND

2. Since this appeal relates to a number of technical issues, in particular with respect to so-called CDRs, we find it useful to refer to the explanatory overview provided by the Pre-Trial Judge in the Impugned Decision:

4. CDRs refer to information in the Prosecution’s possession and related to communication via either a fixed or mobile telephone, and include Short Message Service or “SMS” records. The primary purpose of a CDR is to generate records, and they include the dates, times and durations of calls made, type of call (voice or SMS), the callers and recipients of the calls, as well as the identities of the cell towers used to transmit the call (in the case of mobile

1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.4, The Defence for Hussein Hassan Oneissi Appeal to the Pre-Trial Judge’s “Decision on Issues Related to the Inspection Room and Call Data Records” Dated 18 June 2013, Confidential, 19 August 2013 (“Appeal”).

2 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Issues Related to the Inspection Room and Call Data Records, Confidential, 18 June 2013 (“Impugned Decision”).

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telephony) which provides information on the telephone handset’s location when the call was made. It may also include other technical information, depending on the service provider, such as the IMEI numbers of the handsets used to place and receive the calls. SMS content is not stored in CDRs. CDRs in respect of landline telephone phone numbers are similar to those generated for mobile telephones but tend to contain less information.

5. To the extent that CDRs relate to the Prosecution’s case against the accused, they have been provided to the Defence in two formats.

6. The first format is original information or “Raw Data” which was provided to the Prosecution by the relevant service providers in Lebanon, pursuant to a series of requests for assistance (“RFA” or “RFAs”). The Raw Data contains records for one or more phone numbers and/or cell towers, as well as other technical information. The Raw Data is voluminous and largely unintelligible without further analysis.

7. The second format is processed or analysed information, in the form of a database, against which searches and analysis can be performed more easily. Since the programming language used by the Prosecution for processing and managing the Raw Data in this case was a ‘structured query language’ or SQL, the resulting database is referred to herein as the “SQL Database”.

8. For the purposes of this decision, it is understood that copies of the CDRs in either format are accessible in three locations. The first location is in the Office of the Prosecutor’s evidentiary holdings. The second location is in the Inspection Room. The third location is the Z:\ Drive, the nature of which is explained in paragraph 10 below.

9. The SQL Database is generated and controlled by the Prosecution. The Defence has access to it in the “Inspection Room”, a facility created within the Tribunal for that purpose. It is noteworthy that the SQL Database relates to a smaller subset of Raw Data than the Prosecution has in its possession. This is because the Prosecution has only analysed and/or uploaded those CDRs

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which it considers are relevant to its case, and which in its opinion the Rules require it to provide for inspection. Furthermore, data [REDACTED].

10. The Parties have also made use of a restricted-access drive on the Tribunal’s network called the Z:\ Drive, which serves two purposes. First, the Z:\ Drive is used to enable the Prosecution to provide to the Defence materials in addition to the CDRs which would — but for their size — ordinarily be provided to the Defence via the Tribunal’s Legal Workflow System (“LWS”). This is because LWS does not support the transmission of data above a specific size limit. Second, the Z:\ Drive is the location of the Raw Data which underlies the SQL Databases, and which the Prosecution has provided to the Defence. The Z:\ Drive therefore contains two categories of material: CDRs, on the one hand, and other material that the Prosecution has disclosed or made available for inspection, pursuant to Rules 91, 110 and 113, on the other.3

3. The procedural background of this matter is set out exhaustively in the Impugned Decision.4 In essence, after negotiations between the parties, the Defence filed a joint motion before the Pre-Trial Judge, requesting access to certain CDRs from the Prosecutor pursuant to Rules 91 and 110 (B).5 In the Impugned Decision, the Pre-Trial Judge granted the request, but only in part.6 Counsel for Mr Oneissi sought and received certification to appeal one limited aspect of the decision, namely

whether the Pre-Trial Judge’s determination of (1) the relevant time period—namely 1 January 2003 to 1 October 2005—for which the Defence should be granted access to CDRs in SQL format was correct; and (2) if so, where the Prosecution is not in possession of CDRs in SQL format falling within

3 Impugned Decision, paras 4-10 (footnotes omitted); see also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Prosecution Response to the Oneissi Defence’s Appeal of the Pre-Trial Judge’s “Decision on Issues Related to the Inspection Room and Call Data Records” of 18 June 2013, Confidential, 30 August 2013, (“Prosecution Response”), paras 8-10.


5 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Defence Submissions Regarding the Prosecution’s Inspection Room and Call Data Records on the “Z Drive”, Confidential, 18 March 2013 (“Defence 18 March Submissions”), paras 20-25.

6 Impugned Decision, Disposition.

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the relevant time period, whether it can be required to provide them in SQL format.7

4. Counsel for Mr Oneissi subsequently filed an appeal brief within the time limit required by the Rules, elaborating the two grounds of appeal.8 The Prosecutor responds that the appeal should be dismissed.9

DISCUSSION

I. Confidentiality

5. We note that the appeal was filed confidentially “pending the Pre-Trial Judge’s resolution of the issue of confidentiality of all the filings giving rise to this appeal”.10 The Pre-Trial Judge has not yet issued an order in this regard. We stress the importance of the public nature of the proceedings before this Tribunal.11 Indeed, in the Impugned Decision, the Pre-Trial Judge referred to the need for transparency.12 However, he considered that the Impugned Decision “contain[s] material that reveals the inner workings of the Prosecution and the Defence” and asked the parties for submissions on the issue.13 We find that, in the circumstances, it is prudent for us to await the Pre-Trial Judge’s assessment on the matter before issuing a public version of our decision, redacted if need be.

7 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on the Defence for Hussein Hassan Oneissi’s Request for Reconsideration and Certification of the “Decision on Issues Related to the Inspection Room and Call Data Records” Dated 18 June 2013, Confidential, 9 August 2013 (“Certification Decision”), Disposition.

8 Appeal, para. 2.

9 Prosecution Response, para. 50.

10 Appeal, para. 49

11 See STL, In the matter of El Sayed, CH/AC/2013/01, Public Redacted Version of Decision on Appeal by the Prosecutor Against Pre-Trial Judge’s Decision of 11 January 2013, Dated 28 March 2013, 28 March 2013, para. 9 (with further references).


13 Ibid.

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II. Standard of review

6. Rule 176 (A) provides for an appeal on the following grounds: (1) “An error on a question of law invalidating the decision”; or (2) “[a]n error of fact that has occasioned a miscarriage of justice”.14 Counsel for Mr Oneissi argue that for this appeal we should apply the standard of review applicable to legal errors.15 On the other hand, the Prosecutor submits that the

appeal relates to the Pre-Trial Judge’s decision on Defence access to CDRs in SQL format. The Appeals Chamber of the ICTY and ICTR, tribunals with rules governing disclosure that are nearly identical to those of this Tribunal, has recognized that decisions involving disclosure are matters that relate to the general conduct of trial proceedings, and thus fall within the discretion of the first instance chamber or judge. [. . .] Therefore, the correct standard of review for the appeal is the standard for discretionary decisions, not that applicable to an alleged error of law.16

Indeed, we agree with the Prosecutor that the appeal is not limited to legal errors, and that the Impugned Decision involves an evaluation of various factors. The question whether certain records are “material to the preparation the defence”17 requires a broader assessment of the factual circumstances of the case.

7. However, because we ultimately base both aspects of our decision on questions of law, we apply the following standard this Chamber has previously adopted and applied to alleged errors of law:

A party alleging an error of law must identify the alleged error, present arguments in support of its claim, and explain how the error invalidates the decision. An allegation of an error of law that has no chance of changing the outcome of a decision may be rejected on that ground. However, even if the party’s arguments are insufficient to support the contention of an error, the Appeals Chamber may still conclude, for other reasons, that there is an error of

14 See Rule 176 (A) STL RPE.



17 See Rule 110 (B) STL RPE.

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law. […] The Appeals Chamber reviews the Trial Chamber’s findings of law to determine whether or not they are correct.18

III. Applicable law

8. At issue here are the interpretation and application of Rule 110 (B). We reproduce the subrule and have added bracketed numbers and emphasis:

The Prosecutor shall, on request, permit the Defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are [1] material to the preparation of the defence, or [2] are intended for use by the Prosecutor as evidence at trial or [3] were obtained from or belonged to the accused.

There are clearly three distinct categories of documents which the Defence are entitled to inspect. Here, the application by the Defence relied on the first. The issue is whether the Impugned Decision shows that the first limb was duly applied.

A. First ground of appeal - temporal extent to which CDRs must be disclosed

9. The first issue the Pre-Trial Judge certified for appeal was whether the time period set forth by the Pre-Trial Judge as relevant for CDR disclosure in SQL format was correct.19

10. The Defence request to the Pre-Trial Judge was that, pursuant to the first limb of Rule 110 (B),20 the Prosecutor be ordered to make available for their inspection

18 See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, Decision on Appeal by Legal Representative of Victims Against Pre-Trial Judge’s Decision on Protective Measures, 10 April 2013, para. 19 (internal citation omitted). We further note that, even if we were to follow the enunciated standard of appellate review for fact-intensive decisions, the issue here would be whether the Pre-Trial Judge “based his decision on an incorrect interpretation of the governing law.” See STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Corrected Version of Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, para. 5.

19 “Certification Decision”, Disposition.

20 “The Prosecutor shall, on request, permit the Defence to inspect any [items] in the Prosecutions’s custody or control [. . .] material to the preparation of the defence.” Rule 110(B) STL RPE (italics not in original).

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certain raw and SQL CDRs material to the preparation of the defence.21 The Pre-Trial Judge answered the request by ordering production of both raw and SQL CDRs for what he assessed as the “relevant time period” for disclosure, namely from 1 January 2003 until 1 October 2005.22 He determined this range by applying the earliest and latest specific dates alleged in the Prosecutor’s Indictment for “the existence of [one of] several networks of [. . .] telephones that were used in the attack on 14 February 2005”.23

11. Counsel for Mr Oneissi challenge what they argue was the Pre-Trial Judge’s reasoning—that the only CDRs the Defence was entitled to receive in SQL format were, in counsel’s submission, “those that fall within the temporal scope of the Indictment and on which the Prosecution would rely [. . .] at trial”.24 We note that these were not the Pre-Trial Judge’s words and we will have to interpret precisely his reasons for the decision. Counsel submit that such reasoning arose from a “failure by the Pre-Trial Judge to distinguish between the requirements of the first and second limbs of Rule 110(B)”.25 They argue that the Judge conflated the first limb, materiality (which in fact relates to the preparation of the Defence), and the second limb (which concerns intended use by the Prosecutor). The Prosecutor submits in response that the “[a]ppeal fails to demonstrate that the Pre-Trial Judge erred in defining the relevant temporal range for the provision of access to [CDRs] to be inspected in [SQL] format by the Prosecution”.26 The Prosecutor argues that the Pre-Trial Judge properly applied Rule 110 (B).27

12. Since Rule 110 (B) requires disclosure by the Prosecutor of any item in the Prosecutor’s custody or control that falls under any one of its three limbs,28 if counsel

21 Defence 18 March Submissions, paras 22-23.


23 Ibid.

24 Appeal, para. 17 (emphasis added).

25 Id. at para. 23.


27 Id. at paras 21, 26.

28 See Rule 110 (B) STL RPE.

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for Mr Oneissi are correct in their contention that the Pre-Trial Judge conflated the first and second limbs, there has been an error of law. Equally, if the Impugned Decision does not make clear either that the first and second limbs were properly distinguished, or that Rule 110 (B) was duly considered, there has been an error of law. We have concluded that the reasoning in the Impugned Decision is not clear and that therefore an error of law is established, necessitating reference of the case back to the Pre-Trial Judge.

13. The parts of the Impugned Decision relevant to this appeal made no specific reference to the first limb of Rule 110 (B). Since the competing submissions concern what inferences should be drawn from the Pre-Trial Judge’s words, we reproduce the relevant passages. The Impugned Decision stated:

Discussion

40. The Prosecution’s case is based largely on the use of mobile telephones and their alleged attribution. The parties disagree, however, on the temporal scope of the CDRs to be provided to the Defence in SQL format.

[. . .]

43. The Pre-Trial Judge considers that the determination of the pertinent temporal scope of the CDRs to be made available for inspection in SQL format requires that a distinction be drawn between two discrete purposes for which they have been used by the Prosecution, namely: analysis and attribution.

44. Where the Prosecution has analysed the CDRs in order to investigate patterns of calls made between specific phones, or specific groups of phones, thereby leading to the identification of certain networks of telephones in use at specific times and locations, the CDRs for the period of this analysis — together with their being reflected in the SQL database — are required.

45. The attribution of a telephone number to a person, on the other hand, relies on evidence that supports the assertion that a specific telephone number was used by a specific person during a particular time period or on a particular

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occasion. The attribution of specific telephone numbers to certain individuals is ordinarily a simple matter where accurate and reliable subscriber details relate to the phone number in question. Where these details are inaccurate or unreliable, attribution may require recourse to supplementary information.

[. . .] The temporal scope of CDRs for analysis

46. According to the Rules, the Prosecution is obliged to make available to the Defence copies of:

a. the material supporting the Indictment when its confirmation was sought (pursuant to Rule 110(A)(i)); and

b. the list of exhibits it intends to offer at trial, together with copies of the exhibits so listed or access thereto (pursuant to Rule 91(G)(iii)).

47. To the extent, then, that the Prosecution relied on CDRs when seeking confirmation of the Indictment, or on which it intends to rely [. . .] at trial, data relating to these CDRs ought already to have been provided to the Defence. Indeed, the Prosecution asserts that it has discharged this obligation.

48. The Pre-Trial Judge notes that, with respect to the analysis of the CDRs, the Prosecution has either disclosed, or provided for inspection, all the CDRs necessary for a specific time period which it has in SQL format. This conforms to the obligations incumbent on the Prosecution; the Defence must have effective access to all CDRs in SQL format for the relevant time period that allows it to conduct its own analysis.

49. On the other hand, where the Prosecution has relied on CDRs outside of the relevant time period of analysis in order to support its attribution of telephone numbers to certain individuals, it has provided the Raw Data, as well as the relevant CDR or CDRs to the Defence on an individual basis.

50. The questions, then, are what this relevant time period is, and whether the Prosecution is under an obligation to include CDRs in SQL format in the Inspection Room which fall outside that relevant time period.

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51. The Prosecution does not specify, in its submissions in this matter, what it considers the relevant time period to be. The Pre-Trial Judge nevertheless notes that, in the Indictment, the Prosecution alleges the existence of several networks of mobile telephones that were used in the attack of 14 February 2005, at least one of which came into existence on or by 30 September 2004, and at least one of which remained active until 1 October 2005. A further specific group of phones was used from at least 1 January 2003 until 16 February 2005. In its letter of 20 February 2013, the Prosecution states that it “does not rely on the large CDRs for [a certain time period]”.

52. From this information, the Pre-Trial Judge considers the relevant time period to be from 1 January 2003 until 1 October 2005. This determination is subject to two caveats, however. First, the Pre-Trial Judge has previously determined that the Prosecution is not obliged to perform analyses or to create work products which are not in its custody or control, possession or actually known to it. The Prosecution cannot disclose or allow the inspection of materials that it does not have. Where the Prosecution is not in possession of CDRs or analysis of Raw Data in SQL format falling within the relevant time period, it cannot be required to provide them.29

14. Notably, paragraph 40 of the Impugned Decision refers to the parties’ dispute as concerning “the temporal scope of the CDRs to be provided to the Defence in SQL format”. Paragraphs 43 and 44, which address the determination of such temporal scope, focus on the “purposes for which [CDRs] have been used by the Prosecution”. This might be an implicit reference to the second limb of Rule 110 (B), or to another Rule. But while such reference could be indirectly relevant to the first limb of Rule 110 (B)—materiality to the preparation of the defence—it does not concentrate specifically on that limb.

15. Subsequently, paragraph 46 of the Impugned Decision—which concerns what the Prosecution is “obliged to make available to the Defence”—refers only to Rules 110 (A) and 91 (G) and makes no specific reference to Rule 110 (B). Nor does paragraph 46 make clear allusion to the first limb of Rule 110 (B) on which the

29 Impugned Decision, paras 40, 43-52 (internal citations omitted).

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Defence relied. Further, paragraph 47 may indeed be said to either refer back to paragraph 46 or to the second limb of Rule 110 (B)—matters “intended for use by the Prosecutor as evidence at trial”. Paragraph 48 states, in part, that

with respect to the analysis of the CDRs, the Prosecution has either disclosed, or provided for inspection, all the CDRs necessary for a specific time period which it has in SQL format. This conforms to the obligations incumbent on the Prosecution; the Defence must have effective access to all CDRs in SQL format for the relevant time period that allows it to conduct its own analysis.30

It can be argued both from the context of the immediately preceding paragraph 47, perhaps concerning the second limb of Rule 110 (B), and also from its own terms, that paragraph 48 could be dealing with the first limb of Rule 110 (B). But if this is the case, it fails to do so with clarity. Paragraph 48 refers to a “specific time period”, which is not defined, and “the relevant time period that allows [the Defence] to conduct its own analysis”. Such references could be taken as an allusion to a time period which embraces documents “material to the preparation of the defence”. The same may be said of paragraphs 51 and 52, which narrowly concern phone networks whose existence is alleged in the Prosecutor’s Indictment. Fairness of process, however, requires that there be no reasonable doubt that the rights of the accused in this critical area have been ensured.

16. The crucial point is that in determining a “relevant time period” for which CDRs had to be disclosed by the Prosecution, the Pre-Trial Judge never referred to Rule 110 (B),31 even though the Defence had expressly relied on that Rule when making its application.32 Nor did the Pre-Trial Judge explicitly examine whether or not the requested CDRs were “material to the preparation of the defence”. Any real doubt whether items “material to the preparation of the defence” have been duly disclosed requires a clear resolution. The Impugned Decision has not done this. The

30 Id. at para. 48.

31 The Pre-Trial Judge referred to this Rule in another context. See Impugned Decision, paras 59-60.

32 Defence 18 March Submissions, paras. 21-22 (“The relevance of the entirety of the telephone records in the possession is clearly material to the preparation of the defence against the charges in the indictment. [. . .] The Accused must be given meaningful access to this data to be able to investigate and examine those records for the preparation of their respective defences.” [emphasis added]).

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Impugned Decision does not clarify whether disclosure of “all CDRs necessary for a specific time period” relates to the Prosecutor’s obligation to provide CDRs on which he has relied in some way, or to an obligation to provide CDRs material to the preparation of the defence pursuant to Rule 110 (B). The same is true in regards to the Pre-Trial Judge’s “relevant time period”. Indeed, with regard to the latter it appears that the Pre-Trial Judge, when determining such time period, simply considered those records that the Prosecutor explicitly or implicitly said he had analysed or on which he would rely or not rely for trial.33 The Impugned Decision does not allow us to resolve the above essential issues. Put simply, the Impugned Decision does not make the legal standard applied clear.

17. In his response, the Prosecutor argues that “[i]t is in the context of [the Defence’s] Rule 110(B) request that the Pre-Trial Judge’s decision on the relevant time period [ . . .] should be understood”.34 The Prosecutor asserts that the Pre-Trial Judge did not base his determination on Prosecution reliance because the

Prosecution does not intend to rely on all CDRs in its possession that it has processed in SQL format from 1 January 2003 through October 2005 at trial. Moreover, the Prosecution does not intend to use the SQL database as a tool for the presentation of evidence at trial, as it is not suited for this purpose.35

18. The Prosecutor adds that “the Pre-Trial Judge issued the Impugned Decision knowing that the Prosecution had made CDRs available to the Defence in SQL format that extended beyond the relevant time period, and had disclosed many CDRs from 2003 [REDACTED] in their original format”.36 Noting the Pre-Trial Judge’s conclusion, in the section addressing “the temporal scope of CDRs for attribution”, that “‘the Prosecution continues to respond to Defence requests, made pursuant to Rule 110(B), for CDRs for particular telephones for periods outside that available in the inspection room where they are ‘material to the preparation of the defence’’”, the Prosecutor further submits that

33 See e.g., Impugned Decision at paras 9, 43-44, 51-52.

34 Prosecution Response, para. 20 (emphasis added).

35 Id. at para. 21 (internal citation omitted).

36 Id. at para. 26.

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[i]t follows that while the Pre-Trial Judge considered that requests for particular phones may meet the materiality requirement under Rule 110(B), he did not consider that the Defence had demonstrated that all CDRs related to [REDACTED] for which the Prosecution possessed CDRs were material to the preparation of the defence.37

19. Having reviewed carefully the Prosecutor’s context-based reading of the Impugned Decision, we cannot agree with him. We are simply unable to determine from the entirety of the Impugned Decision that the “relevant time period” set by the Pre-Trial Judge was based on an examination of the “materiality” condition, the controlling legal standard set out in Rule 110 (B). Even if, as the Prosecutor argues, the Pre-Trial Judge had Rule 110 (B) in mind, there is no explicit or implicit explanation in the Impugned Decision for why certain requested CDRs falling outside the “relevant temporal period” were not material to the preparation of the defence. We consider that “[n]either the Appeals Chamber nor the Parties can be required to engage in speculation on the meaning of the [Pre-Trial Judge’s] findings” regarding which Rule was applied and how.38 From the Impugned Decision, we can only conclude that the Pre-Trial Judge did not apply Rule 110 (B)’s “materiality” condition, and thus committed an error of law. We emphasize that we are not deciding the ultimate correctness of the Pre-Trial Judge’s “relevant time period”, but rather conclude that he did not apply the Rule in question.

20. Finding such error, based on the reasons above, we are unable to endorse the Pre-Trial Judge’s order that

the Prosecution either […] provide to the Defence all CDRs in Raw Data Format and SQL format for the period from 1 January 2003 until 1 October 2005, or […] clarify that it is not in possession of any CDRs falling within this

37 Id. at para. 25.

38 See ICTY, Prosecutor v. Krajisnik, IT-00-39-A, Judgement, 17 March 2009, para. 176; ICTY, Prosecutor v. Oric, IT-03-68-A, Judgement, 3 July 2008, para. 56; see also STL, In the Matter of El Sayed, CH/AC/2012/02, Decision on Partial Appeal by Mr El Sayed Against Pre-Trial Judge’s Decision of 8 October 2012, 23 November 2012, para. 15 (noting that it is appropriate for initial determinations to be made by the actor best-placed in terms of expertise).

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time frame which have not been disclosed or made available for inspection in these formats.39

We thus set aside that order and remand the Defence’s CDR request to the Pre-Trial Judge for reconsideration and application of Rule 110 (B)’s “materiality” condition. We are of the view that the Pre-Trial Judge is best placed to make this fact-intensive decision at first instance. Conscious of our responsibility to set the correct legal standard and considering that this issue was raised in the appeal and responded to by the Prosecutor,40 we offer the following discussion relating to Rule 110 (B)’s “materiality” condition to assist the Pre-Trial Judge’s determination of the request.

21. We recognize that before us is a matter of first impression. Neither Rule 110 (B) nor any other Rule offers guidance as to the interpretation of “materiality” in this context. Therefore, because Rule 110 (B) mirrors or is substantially similar to corresponding rules of the International Criminal Tribunal for Rwanda (“ICTR”), International Criminal Tribunal for the former Yugoslavia (“ICTY”) and International Criminal Court (“ICC”),41 we turn to the useful case-law of these tribunals. We find the following approach to be persuasive which has consistently been taken by these tribunals: (1) The defence must demonstrate prima facie that what is requested is “material to the preparation of the defence”;42 and (2) the test for “materiality” under Rule 110 (B) is whether the books, documents, photographs or tangible objects are relevant to the preparation of the defence case.43

39 Impugned Decision, Disposition.

40 See Appeal, paras 20, 24-34; Prosecution Response, paras 28-39.

41 Rule 66(B) ICTR RPE; Rule 66(B) ICTY RPE; Rule 77 ICC RPE.

42 See ICTR, Prosecutor v. Karemera et al., ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para. 12; ICTR, Karemera et al. v. The Prosecutor, ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 17 May 2010, paras 12-13; ICTY, Prosecutor v. Karadžić, IT-95-5/18-T, Decision on Motion to Compel Inspection of Items Material to the Sarajevo Defence Case, 8 February 2012 (“Karadžić Decision”), paras 6-9.

43 See ICTR, Prosecutor v. Bagosora et al., ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure under Rule 66 (B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), para. 9; see also ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 OA 11, Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, 11 July 2008 (“Lubanga Decision”), para. 77; First Karemera Decision, para. 14; ICC, Prosecutor v. Banda and Jerbo, ICC-02/05-03/09, Decision on the Defence’s Request for Disclosure of Documents in the Possession of the Office of the Prosecutor, 23 January 2013 (“Banda and Jerbo Decision”), para. 12 ; Karadžić Decision, para. 9.

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22. The Appeals and Trial Chambers of the ICTY, ICTR and ICC have recognized that “preparation is a broad concept”44 and that relevant items, in this context, need not be “directly linked to exonerating or incriminating evidence”45 or “related to the Prosecution’s case-in-chief”.46 We acknowledge the ICTY and ICTR case-law appropriately cited by counsel for Mr Oneissi,47 as well as other apposite decisions, and agree that the concept of relevance, under Rule 110 (B), is not necessarily confined by the “temporal scope of an indictment”, nor is it necessarily limited to “material relevant in countering the prosecution[’s] evidence”.48 Counsel for Mr Oneissi cites apt examples of what might be material—items that could inform the defence’s decision whether to call a particular witness or assist in developing cross-examination strategy.49 Nevertheless, Rule 110 (B) does not invite a fishing expedition. Accordingly, we accept (with deletion of the word “necessarily”) a recent ICC Trial Chamber clarification that “Rule 77 [of the ICC’s Rules of Procedure and Evidence, corresponding to Rule 110 (B) of the Tribunal’s Rules,] does not [. . .] provide for an unfettered ‘right to inspection’, triggered by any unsubstantiated claim of relevance made by the defence”.50 Rather, Rule 110 (B) demands a context-specific application by the chambers of first-instance, which is uniquely situated to determine whether the defence has sufficiently demonstrated materiality by making the requisite showing that items sought are relevant to the preparation of the defence case.51 We note that this approach is also supported by relevant domestic case-law.52

44 See e.g., Karadžić Decision, para. 9; Lubanga Decision, paras 77-78; First Karemera Decision, para. 14; Bagosora Decision, para. 9.

45 See Lubanga Decision, para. 77.

46 See Karadžić Decision, para. 9; Bagosora Decision, paras 8-9.

47 Appeal, para 25, fns 28-31.

48 See id. at para. 25.

49 Ibid.

50 See Banda and Jerbo Decision, para. 15; see also ICTY, Prosecutor v. Karadžić, IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and Disclosure: Immunity Issue, 17 December 2008, paras 23, 26.

51 See Bagosora Decision, para. 9.

52 For example, interpreting a rule of criminal procedure substantially similar to Rule 110 (B), the Eleventh Circuit Court of Appeals held in United States v. Jordan, “An item [. . .] need not be disclosed unless the defendant demonstrates that it is material to the preparation of the defense. A general description of the item will not suffice; neither will a conclusory argument that the requested item is material to the defense. [. . .] Rather, the defendant must make a specific request for the item together with an explanation of how it will be ‘helpful to

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23. Accordingly, we remand the issue of “materiality” under Rule 110 (B) to the Pre-Trial Judge who should reassess the Defence request in light of the approach enunciated in the previous two paragraphs.

B. Second ground of appeal – access to CDRs in SQL format

24. After setting the “relevant time period” governing obligatory CDR disclosure, the Pre-Trial Judge further concluded that, concerning CDRs falling within that period, the Prosecution was “not obliged to perform analyses or to create work products which are not in its custody or control, possession or actually known to it”.53 Therefore, “[w]here the Prosecution is not in possession of CDRs or analysis of Raw Data in SQL format falling within the relevant time period, it cannot be required to provide them”.54 Consequently, the Pre-Trial Judge ordered the Prosecution to provide all CDRs in its possession from the “relevant time period” that had not already been disclosed.55

25. Upon reviewing the subsequent submissions from counsel for Mr Oneissi and the Prosecutor, the Pre-Trial Judge certified the following issue for appeal: [W]here the Prosecution is not in possession of CDRs in SQL format falling within the relevant time period, [. . .] can it be required to provide them in SQL format?56

the defense.’ [. . .] ‘[H]elpful’ means relevant to the preparation of the defense and not necessarily exculpatory”. United States, Eleventh Circuit Court of Appeals, United States v. Jordan, 316 F.3d 1215, 1250 (6 January 2003) (internal citations omitted). In a similar context, addressing what must be alleged in a defence request for disclosure, the House of Lords stated in R. v. H that, “respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good”. United Kingdom, House of Lords, R. v. H, 2 A.C. 134 (5 February 2004) (“R. v. H 2004”), para. 35. For other examples, see United States, Ninth Circuit Court of Appeals, United States v. Mandel, 914 F.2d 1215, 1219 (14 September 1990); United Kingdom, Court of Appeal (Criminal Division), R. v. Keane, 1 W.L.R. 746, 752 (14 March 1994); Canada, Supreme Court of Canada, R v. Taillefer, 2003 CarswellQue 2765 (12 December 2003), paras 79-70; Australia, High Court of Australia, Mallard v. R, 224 C.L.R. 125 (15 November 2005), para. 81; New Zealand, Human Rights Review Tribunal, Andrews v. Commissioner, NZHRRT 6 (4 March 2013), paras 41. 49-51.


54 Ibid.

55 Id. at p. 27.

56 Certification Decision, Disposition.

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26. Counsel for Mr Oneissi assert that “the Pre-Trial Judge erred in law by finding that where the Prosecution is not in possession of CDRs in SQL format it cannot be required to provide them in SQL format”.57 Counsel’s submission insists that, pursuant to Rule 121 (A), when the Prosecution discloses material in electronic form, it must also provide “appropriate computer software” for searching the material.58 SQL, it contends, is computer software under Rule 121 (A), the provision of which does not involve performing analyses or creating any work product.59 In his response, the Prosecutor submits that the Pre-Trial Judge did not “abuse his discretion in determining that the Prosecution cannot be ordered to make CDRs for the relevant time period available to the Defence in SQL format where the Prosecution does not possess them in SQL format”.60 The Prosecutor further argues that “[t]he Oneissi Defence misinterprets [. . .] Rule 121”.61 Importantly, the Prosecutor also notes that, because it “will have processed all bulk CDRs in its possession for the relevant time period and provided them to the Defence in SQL format [by the end of September 2013]”, this issue is moot.62

27. As a preliminary matter, we substantially concur with the Pre-Trial Judge’s assertion—not challenged by counsel for Mr Oneissi or the Prosecutor—that the Prosecution generally “is not obliged to perform analyses or to create work products which are not in its custody or control, possession or actually known to it” and that the Prosecution “cannot disclose or allow the inspection of materials that it does not have”.63 This certainly holds true for Rule 110 (B) and follows the consistent practice of other international tribunals with similar provisions where Chambers have stressed that the sought material must be in the custody or control of the Prosecutor.


58 Id. at para. 39.

59 Id. at paras 42-43.

60 Prosecution Response, p. 13.

61 Id. at para. 44.

62 Id. at para. 41.

63 Impugned Decision, para. 52 (without specifying to which Rule he was referring).

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28. For example, the ICTR Trial Chamber in Bagilishema noted in this context that the words “known” and “possession” used in other rules are synonymous with “custody or control”. With respect to Rule 68 of the ICTR’s Rules of Procedure and Evidence (corresponding to the Tribunal’s Rule 113), it stated that “the obligation on the Prosecutor to disclose exculpatory evidence would be effective only when the Prosecutor is in actual custody, possession, or has control of the said evidence. The Prosecutor cannot disclose that which she does not have”.64

29. So there can ordinarily be no obligation to create new material. In Halilović, the ICTY Trial Chamber refused a request for production of certain indices of disclosed material, holding that “the Rules do not require an index of the documents disclosed or of relevant material made available to be provided to the Defence”.65 In Stanišić and Simatović, the Trial Chamber rejected a Defence request to receive, pursuant to Rule 66 (B) of the ICTY’s Rules of Procedure and Evidence (corresponding to the Tribunal’s Rule 110 (B)), certain material in hard copy format, noting the Prosecution’s explanation that this would impose an unfair burden “considering the fact that it does not keep hard copies of Rule 66 material it discloses”.66

30. In Popović et al., the ICTY Trial Chamber also stated that “material held by a third party independent from the Prosecution, cannot be said to be within the ‘custody or control’ of the Prosecution on any reading. The fact that the Prosecution has a good relationship with the third party is not relevant unless it can be established that the Prosecution has some ability to direct and control the relevant person or organization”.67

64 ICTR, Prosecutor v. Bagilishema, ICTR-95-1A-T, Decision on the Request of the Defence for an Order for Disclosure by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z, and AA, 8 June 2000, para. 7; see also ICTR, Prosecutor v. Kajelijeli, ICTR-98-44A-T, Decision on Kajelijeli’s Urgent Motion and Certification with Appendices in Support of Urgent Motion for Disclosure of Materials Pursuant to Rule 66(B) and Rule 68 of the Rules of Procedure and Evidence, 5 July 2001, paras 13-14.

65 ICTY, Prosecutor v. Halilović, IT-01-48-T, Decision on Motion for Enforcement of Court Re Electronic Disclosure Suite, 27 July 2005, p. 4.

66 ICTY, Prosecutor v. Stanišić and Simatović, IT-03-69-PT, Decision on Defence Motion to Receive Hard Copies of Rule 66 Material, 11 March 2005, p. 3.

67 ICTY, Prosecutor v. Popović et al., IT-05-88-T, Decision on Popović’s Motion for Disclosure Pursuant to Rule 66 (B) and Request to File an Addendum to Professor Stojković’s Expert Report, 6 October 2008, para. 11.

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31. Domestic jurisdictions with comparable requirements take similar approaches. Interpreting the meaning of “possession, custody, or control”, United States federal courts have rejected defence requests for production of non-existent material or new analysis.68 The High Court of New Zealand has also rejected a request for the disclosure of information theretofore not in recorded form.69 Similarly, Canadian courts have found no obligation to disclose material the prosecution does not have or to provide material in the specific format preferred by the defence.70

32. As pointed out above, the underlying legal principle here is not at issue. What the Prosecutor does not have, he cannot generally be ordered to provide. But there are further considerations to be weighed. For instance, the Pre-Trial Judge may consider that fairness requires the Prosecutor to provide certain CDRs in SQL format.

33. Additionally, one means of conveying information to the Defence is via Rule 121 (A), which permits a party “to fulfil some or all of its disclosure obligations in electronic form, together with appropriate computer software to allow for searching of the material”.71 The question that then arises is whether data in “SQL format” is in fact a new product or, as counsel for Mr Oneissi assert in the appeal, merely a search tool. This distinction could determine the applicability of Rule 121 (A), which on its face does not create new disclosure obligations and is merely a way for the Prosecutor to discharge existing obligations efficiently,72 including the provision of

68 See e.g., United States, Fourth Circuit Court of Appeals, United States v Caro, 597 F.3d 608, 621 fn. 13 (17 March 2010); United States, First Circuit Court of Appeals, United States v. Amaya-Manzanares, 377 F.3d 39, 42-43 (27 July 2004); United States, Fifth Circuit Court of Appeals, United States v. Kahl, 583 F.2d 1351, 1354 (16 November 1978); United States, District Court of Arizona, United States v. Rigmaiden, 2012 WL 1150532, at *1 (5 April 2012); United States, District Court of Maine, United States v. Cameron, 672 F. Supp.2d 133, 137 (7 October 2009).

69 New Zealand, High Court of New Zealand, Drew v. Police, NZHC 1009 (14 May 2012), para. 24.

70 Canada, Alberta Court of Appeal, R. v. Diaz, 2010 CarswellAlta 2426 (14 December 2010), para. 41; Canada, Saskatchewan Provincial Court, R. v Akinchets, 2011 SKPC 88 (20 June 2011), para. 21.

71 Emphasis added.

72 Cf. ICTR, Prosecutor v. Bizimungu et al., ICTR-99-50-T, Decision on the Motion of Bicamumpaka and Mugenzi for Disclosure of Relevant Material, 1 December 2004, para. 9 (“Rule 68 (B) [ICTR RPE, the equivalent to Rule 121 (A) STL RPE] creates no new disclosure obligation on the Prosecution [. . .] The Rule merely permits the Prosecution to use modern technology to discharge its disclosure obligations under Rule 68 (A) [ICTR RPE, the equivalent to Rule 113 (A) STL RPE) and any other Rule such as Rule 66 [ICTR RPE, the equivalent to Rule 110 STL RPE]).”); see also ICTR, Prosecutor v. Karemera et al., ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging

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software already in its possession for searching the disclosed material. We recall that the Defence did not raise the applicability of Rule 121 (A) in their CDR request. We find, however, that the Pre-Trial Judge should nonetheless have explicitly considered it.

34. The Pre-Trial Judge seems to have found that SQL data is a new work product, hence his determination that where the Prosecutor “is not in possession of CDRs or analysis of Raw Data in SQL format falling within the relevant time period” such material cannot be provided to the Defence.73 On the other hand, counsel for Mr Oneissi argue that SQL is a database for storage and searching of bulk data. They thus argue that it is merely “a type of computer software within the meaning of Rule 121 (A)” and that the Prosecutor “would not be performing any analyses or creating any work product”.74 The Prosecutor responds that

[t]he requirement in Rule 121 that a party provide appropriate computer software to allow for searching of the material is to ensure that material disclosed electronically is accessible and searchable. It does not require that the Prosecution manipulate evidence received in a specific format (CDRs in Raw Data format) and process it into another format (SQL database format) to facilitate Defence investigations. Nor does Rule 121 require that the Prosecution create a database to enable the Defence to manipulate or compare disclosed evidence. It simply requires software that enables the evidence to be read and searched. [. . .] The Oneissi Defence has not demonstrated that it cannot access or search Raw Data CDRs. The CDRs in their Raw Data format are text files that can be read and searched by suitable text reader software, such as Microsoft UltraEdit, which has been provided to the Defence. Moreover, CDRs are capable of being compared without conversion into SQL database format by use of such readily available software as Excel.75

Disclosure Obligations, 30 June 2006, para. 12 (“Rule 68 (B) does not establish a distinct disclosure obligation. Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an electronic format [...].”).

73 See Impugned Decision, para. 52.


75 Prosecution Response, paras 45-46.

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35. We first consider that, lacking the expertise and insight of a first-instance trier of fact, it is not appropriate for us to conclusively decide this factual issue—whether data in SQL format is a new product—on appeal for the first time. Indeed, it fell to the Pre-Trial Judge to make this decision. However, the Pre-Trial Judge did not consider Rule 121 (A) and what potential impact this Rule might have on the matter in contention before him.

36. We note in this respect that there are a number of ambiguities in the Impugned Decision regarding the nature and status of the data in question. For instance, despite pronouncing that “the Prosecution is not obliged to perform analyses or to create work products which are not in its custody or control” and that “[w]here the Prosecution is not in possession of […] analysis of Raw Data in SQL format falling within the relevant time period, it cannot be required to provide [such analysis]”,76 the Pre-Trial Judge seemingly ordered the Prosecution to provide certain CDRs in SQL format that did not already exist in SQL format.77 In fact, it is not entirely evident from the Impugned Decision and the submissions of the parties which records exist in which format. The Pre-Trial Judge has referred to a letter sent by the Prosecution to the Defence on 15 January 2013, which appears to include more information in this respect.78 However, this letter is not on the record.

37. We find the Impugned Decision is too unclear as to the nature of CDRs in SQL format, and that the Pre-Trial Judge is better situated than the Appeals Chamber to determine this question at first instance and to consider the applicable Rule or Rules. In these circumstances, we remand to the Pre-Trial Judge for determination consistent with this decision the question of whether the Prosecutor must provide CDRs in SQL format in the case where the CDRs to be disclosed are possessed by the Prosecutor only in raw data format. The Pre-Trial Judge should clarify the nature of data in SQL format relative to raw data and should then consider whether raw data deemed material to the preparation of the defence pursuant to Rule 110 (B) must be

76 Impugned Decision at para. 52.

77 See id. at para. 55; Prosecution Response, paras 18, 41.

78 Impugned Decision, fn. 57.

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made available in SQL format to the Defence under either Rule 110 (B) or Rule 121 (A) as “appropriate computer software” for searching.

CONCLUSION

38. In sum, on both the first and second issues, we allow the appeal to the extent of setting aside the determinations of the Pre-Trial Judge. However, we reject the remedy requested in the appeal, i.e., we do not find it appropriate in this case to order disclosure ourselves. Instead, we remand the Defence’s specific request for disclosure to the Pre-Trial Judge for reassessment consistent with this decision.

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DISPOSITION

FOR THESE REASONS;

THE APPEALS CHAMBER, deciding unanimously;

ALLOWS the Appeal insofar as:

(1) It finds the Pre-Trial Judge committed an error of law by failing to apply or misapplying Rule 110 (B);

(2) It finds the Pre-Trial Judge failed to make clear the nature of CDRs in SQL format in applying Rule 110 (B) and to consider the applicability of Rule 121 (A) to the Defence’s CDR disclosure request;

DISMISSES the Appeal in all other aspects;

REMANDS the Defence’s specific request for disclosure at issue here to the Pre-Trial Judge for reassessment consistent with this decision.


Dated 2 October 2013 Leidschendam, the Netherlands.



Before: President

Title: Decision on Defence Motion for Reconsideration and Rescission of Order Composing the Trial Chamber

Short title: Composition of the Trial Chamber PRES

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185

THE PRESIDENT

Case No.: STL-11-01/PT/PRES

Before: Judge David Baragwanath, President

Acting Registrar: Mr Daryl Mundis

Date: 4 October 2013



THE PROSECUTOR v.



DECISION ON DEFENCE MOTION FOR RECONSIDERATION AND RESCISSION OF ORDER COMPOSING THE TRIAL

CHAMBER





Legal Representatives of Victims: Mr Peter Haynes Ms Nada Abdelsater-Abusamra Mr Mohammad F. Mattar


Counsel for Mr Assad Hassan Sabra: Mr David Young Dr Guénaël Mettraux

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Composition of the Trial Chamber PRES

INTRODUCTION

1. I am seized with a motion1 filed jointly by the Defence in the Ayyash et al. case, requesting me to “reconsider and rescind”2 my order of 10 September 20133 in which I re-composed the Trial Chamber.

BACKGROUND

2. After the determination of the United Nations Secretary-General that the Trial Chamber Judges should take office,4 President Antonio Cassese first convened the Trial Chamber as of 20 September 20115 pursuant to Article 8 (3) of the Statute of the Special Tribunal for Lebanon (“Statute” and “Tribunal”, respectively).

3. Article 8 (3) of the Statute states that “[a]t the request of the presiding judge of the Trial Chamber, the President of the Special Tribunal may, in the interest of justice, assign the alternate judges to be present at each stage of the trial and to replace a judge if that judge is unable to continue sitting”.

4. On the basis of this provision, President Cassese assigned three sitting Judges and two alternate Judges to the Trial Chamber.6 The alternate Judges—Judge Walid Akoum and Judge Janet Nosworthy—have thus been required to sit in all hearings and deliberations of the Trial Chamber throughout the past two years.7

5. Following the resignation of Judge Robert Roth, Presiding Judge of the Trial Chamber, on 9 September 2013, the four remaining Judges wrote to me that day,

1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Motion for Reconsideration and Rescission of the President’s “Order on Composition of the Trial Chamber” of 10 September 2013, 23 September 2013 (“Motion”). All further references to filings and decisions relate to this case number unless otherwise stated.

2 Motion, para 13.

3 Order on Composition of the Trial Chamber, 10 September 2013 (“Order”).

4 See Article 17 (b) of the Annex to UN Security Council Resolution 1757 (2007).

5 STL, Prosecutor v. Ayyash et al., STL-11-01/I/PRES, Order on Composition of the Trial Chamber, 8 September 2011 (“Order of 8 September 2011”).

6 Order of 8 September 2011.

7 See Rule 27 of the Rules of Procedure and Evidence (“Rules”).

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requesting that I “take all necessary steps according to Article 8(3) of the Statute of the Tribunal to ensure that the international Alternate Judge, Judge Janet Nosworthy, is appointed as a Judge of the Trial Chamber”, so as to “allow the Trial Chamber to continue functioning”.8

6. Article 10 (1) of the Statute makes the President “responsible for [the Tribunal’s] effective functioning and the good administration of justice”.9 Article 16 (4) (c) provides for the accused persons’ right to be tried “without undue delay”. Articles 18 (2) and 28 (2) stress the need for a “fair and expeditious” trial. Article 21 instructs the Tribunal to “take strict measures to prevent any action that may cause unreasonable delay”.

7. Against this clear statutory mandate, I considered in my Order that the Trial Chamber was seized with a number of matters under Rule 89 (E) of the Rules10 and that the Pre-Trial Judge had set a tentative start date for trial in these proceedings of 13 January 2014.11 I specifically referred to the Trial Chamber being seized by some Defence teams of motions regarding the form of the indictment, i.e., the essential instrument pleading the charges against the accused.12 In particular, I noted the “vital importance of the Trial Chamber’s work proceeding as efficiently and expeditiously as possible”.13

8. I also referred to the fact that the appointment of a new Judge, replacing Judge Nosworthy as the international alternate Judge, falls to the United Nations Secretary-General.14 This process is not in the hands of the Tribunal, and I was required by

8 Confidential letter from Judge Janet Nosworthy (Alternate Judge), Judge Walid Akoum (Alternate Judge), Judge Micheline Braidy and Judge David Re to the President, 9 September 2013.

9 See also Rule 32 (B) of the Rules. These provisions are in line with similar provisions at various other international criminal tribunals.

10 Order, p. 2.

11 Order, p. 3.

12 Order, p. 3.

13 Order, p. 3.

14 See Article 2 (3) (b) of the Annex to UN Security Council Resolution 1757 (2007) and Rule 28 of the Rules.

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the Tribunal’s Statute and Rules to proceed expeditiously and ensure that the Trial Chamber could deal with the matters before it in preparation for trial.

9. In this context, I considered that Article 8 (3) of the Statute can only be read as requiring the President, once the alternate Judges have been appointed “to be present at each stage of trial” (as they were in this case), to then select one of them to “replace a judge if that judge is unable to continue sitting”. There is no discretion for the President to decide whether to effectuate the replacement.15 Consistent with Article 8 (3) of the Statute, Rule 26 (C) envisages the automatic replacement of a judge—“[i]f a Judge is unable to continue sitting for a long period or permanently, the trial shall continue with the alternate Judge replacing the Judge who is unable to continue sitting”. I thus assigned Judge Nosworthy—the international alternate Judge—to replace Judge Robert Roth (also an international Judge) effective immediately.

DISCUSSION

10. The Defence alleges that my Order assigning the international alternate Judge to replace the Presiding Judge was ultra vires the Statute and the Rules and that I should therefore reconsider and rescind it lest it results in an injustice to the four Accused.16 The Prosecutor responds that this was not the case and that the Motion should be dismissed.17

11. I first note that neither the Statute nor the Rules foresee that an order of the President composing or re-composing a bench of the Tribunal is open to challenge by the parties.18 Rule 140 of the Rules, as relied on by the Defence,19 merely refers

15 As noted in my Order, the French and Arabic versions of Article 8 (3) of the Statute make it clear that “each stage of trial” may refer to any stage of the proceedings after the Trial Chamber Judges have been convened and the Trial Chamber is seized of judicial matters. I also note the wording of the French version (“remplacement de tout juge”).

16 Motion, para. 1.

17 Prosecution Response to Motion for Reconsideration and Rescission of the President’s “Order on Composition of the Trial Chamber” of 10 September 2013, 2 October 2013.

18 Under Rule 25 of the Rules, counsel may apply for the disqualification of a Judge according to the procedures set out in that Rule. However, the present Motion does not challenge the qualification of any of the Judges to sit on the Trial Chamber.

19 Motion, paras 2-3.

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to the possibility to reconsider judicial decisions taken by one of the Tribunal’s three Chambers. The President is not a “Chamber” under that Rule. Moreover, my order to re-compose the Trial Chamber was not a judicial decision.

12. I am also not persuaded by the Defence argument that the Motion against my Order can be based on an unwritten inherent authority to reconsider.20 Indeed, the question is not whether such a power exists in the abstract, but whether the administrative decisions that I take pursuant to my responsibilities under Article 10 of the Statute may be challenged by the parties.

13. Apart from the responsibility of coordinating the work of Chambers, Article 10 of the Statute and Rule 32 of the Rules task me with a number of other administrative functions, such as issuing Practice Directions addressing detailed aspects of the conduct of proceedings before the Tribunal, representing the Tribunal in international relations, and submitting annual reports to the United Nations Secretary-General and the Government of Lebanon. There is nothing in the Statute or the Rules allowing the parties to remonstrate against my actions in the exercise of these functions.

14. Other international criminal tribunals where the President is required to perform similar functions have consistently upheld the same principle. As noted by the Appeals Chamber of the International Criminal Tribunal for Rwanda, “[t]he composition and re-composition of Trial Chambers by the President is a judicial administrative function, pursuant to the Statute and Rules, formulated for the efficient judicial administrative operation of the Tribunal”.21 The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) held that “an order determining the composition of a bench of the Appeals Chamber in a particular

20 See Motion, para. 4.

21 ICTR, Prosecutor v. Kanyabashi, ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, 3 June 1999 (“Kanyabashi Decision”), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para. 19; see also id. at para. 46; Kanyabashi Decision, Joint Separate and Concurring Opinion of Judge Wang Tieya and Judge Rafael Nieto-Navia, para. 19 (holding that the provisions of the ICTR Statute and Rules relating to the assignment of Judges “are all concerned with judicial administration)”; but see ICC, Prosecutor v. Katanga et al., ICC-01-04-01/07, Decision concerning the Request of Mr Germain Katanga of 14 November 2008 for re-composition of the bench of Trial Chamber II, 21 November 2008 (where the Presidency, under a statutory framework different from that of this Tribunal, entertained a request for the re-composition of the bench because of an alleged lack of necessary qualification of a Judge, but dismissed it on the merits).

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case is rendered by the President pursuant to this authority to ‘coordinate the work of the Chambers’ and is thus in essence an administrative matter”.22

15. Indeed, when deciding a request similar to the present one, the acting President of the ICTY stated that it is “improper for counsel to address the composition of any bench of the Chambers of the International Tribunal”.23 In sum, the parties may challenge matters of jurisdiction and other preliminary issues, as well as any decision where such right is provided for in the Statute, the Rules or other related instruments instruments—but the President has no authority to entertain a request for reconsideration or rescission of administrative decisions of the type challenged in this case. I therefore reject the Motion.

22 ICTY, Prosecutor v. Lukić et al., IT-98-32/1-AR11bis.1, Decision on ‘Motion to Disqualify President and Vice-President from Appointing Appeals Chamber and to Disqualify President Judge and Judge Meron from Sitting on Appeals Chamber’, 4 May 2007, p. 1.

23 ICTY, Prosecutor v. Delalić et al., IT-96-21-A, Order on the Request to the President on the Composition of the Bench of the Appeals Chamber, 12 February 1999.

191


DISPOSITION

FOR THESE REASONS;

I DISMISS the Motion.


Dated 4 October 2013. Leidschendam, the Netherlands

Judge David Baragwanath President

192


10.Case name: The Prosecutor v. Merhi


Title: Public Redacted Version of the “Decision Relating to the Examination of the Indictment of 5 June 2013 issued against Mr Hassan Habib Merhi” dated 31 July 2013

Short title: Indictment of Mr Merhi PTJ

193

195

THE PRE-TRIAL JUDGE

Case No.: STL-13-04/I/PTJ


Registrar: Mr Daryl Mundis

Date: 11 October 2013



THE PROSECUTOR v.

HASSAN HABIB MERHI

PUBLIC REDACTED VERSION OF THE “DECISION RELATING TO THE EXAMINATION OF THE INDICTMENT OF 5 JUNE 2013

ISSUED AGAINST MR HASSAN HABIB MERHI” DATED 31 JULY 2013


196

Indictment of Mr Merhi PTJ

I. The subject of the decision

1. By way of the present decision, the Pre-Trial Judge of the Special Tribunal for Lebanon (the “Tribunal”) rules on the merits of the Indictment dated 5 June 2013 (the “Indictment of 5 June 2013”) issued by the Prosecutor against Mr Hassan Habib Merhi (“Mr Merhi” or the “suspect”) in the context of the case relating to the attack carried out on 14 February 2005 against Mr Hariri and other persons1 (the “Hariri case”), to which he made two corrigenda, on 5 June and 25 July 2013. The Pre-Trial Judge also rules on the Prosecution motion to not disclose the Indictment of 5 June 2013 to the public and to redact it so that it might be served on Mr Mehri in accordance with Article 18 (2) of the Statute and Rules 61 (iv), 74 and 77 (A) of the Rules of Procedure and Evidence (the “Rules”).

2. The Pre-Trial Judge shall rule separately on the Prosecution’s motion requesting him, pursuant to Article 18 (2) of the Statute and Rules 14, 61 (iv), 68 (J) (i), 76, 77 (A), 79, 84 and 101 (G) of the Rules, to issue: (i) upon confirmation of the Indictment of 5 June 2013, a national and international arrest warrant including an order/request for the transfer of Mr Merhi to the Tribunal; and (ii) an order for his detention in the Tribunal’s detention facility in the Kingdom of the Netherlands.


3. On 17 January 2011, pursuant to Rule 68 of the Rules, the Prosecutor forwarded to the Pre-Trial Judge an Indictment against Mr Ayyash relating to the Hariri case.2

1 The term “attack” originates from Article 1 of the Statute. It carries no legal characterisation in the context of the present decision.

2 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Submission of an Indictment for Confirmation (Rule 68); and (1) Motion for an Arrest Warrant and Order for Transfer (Rule 79); (2) Urgent Motion for the NonDisclosure of the Indictment (Rule 74); and (3) Urgent Motion for an Order for Interim Non-Disclosure of the Identities of Witnesses Pending the Implementation of Appropriate Witness Protection Measures (Rules 77 and115), confidential and ex parte, 17 January 2011, (the “Indictment of 17 January 2011”). A public redacted version of the combined submission (without the Annexes) was filed on 5 April 2012 pursuant to the Pre-Trial Judge’s Order of 8 February 2012.

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On 11 March,3 6 May4 and 10 June 2011,5 the Prosecutor filed new versions of the Indictment in which three new suspects, Mr Badreddine, Mr Oneissi and Mr Sabra, were added.

4. On 28 June 2011, the Pre-Trial Judge issued a decision relating to the examination of the Indictment of 10 June 2011 issued by the Prosecutor (the “Indictment of 10 June 2011”) and authorised the indictment of Mr Ayyash, Mr Badreddine, Mr Oneissi and Mr Sabra (the “Decision of 28 June 2011”).6 This case, entitled “The Prosecutor v. Ayyash et al.”, bears the reference “STL-11-01”.

5. On 8 February 2012, the Prosecution sought leave from the Pre-Trial Judge to amend the Indictment of 10 June 2011.7 Among the principal amendments made to this Indictment, the Prosecution proposed the indictment of a fifth person, Mr Merhi.

6. On 13 March 2012, the Pre-Trial Judge dismissed the Prosecution’s request of 8 February 2012, considering that it could not request, by way of amendments,

3 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Submission of an Amended Indictment for Confirmation (Rules 68 and 71) and Motion for Arrest Warrants and Orders for Transfer (Rule 79), confidential and ex parte, 11 March 2011. This Submission (without the Annexes) was made public pursuant to the Pre-Trial Judge’s Order of 6 December 2011.

4 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Combined Motion of the Prosecutor (1) Submission of an Indictment for Confirmation (Rule 68), (2) Motion for Continuation of Pre-Trial Judge’s Order dated 19 January 2011 pursuant to Rule 96 (B), and (3) Motions in the event of confirmation of the Indictment pursuant to Rules 74, 77 and 79, confidential and ex parte, 6 May 2011. Public redacted versions of the Combined Motion and Annex A were filed on 16 February 2012 pursuant to the Pre-Trial Judge’s Order of 8 February 2012. Annex C was made public pursuant to the Pre-Trial Judge’s Order of 6 December 2011.

5 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Submission of an Amended Indictment for Confirmation under Rule 71 and in Response to the Order of the Pre-Trial Judge dated 9 June 2011, confidential and ex parte, 10 June 2011 (the “Indictment of 10 June 2011”). This document was made public (except for Annex A) pursuant to the Pre-Trial Judge’s Order of 6 December 2011. Annex A was filed confidentially pursuant to the Pre-Trial Judge’s Decision of 10 February 2012.

6 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Decision Relating to the Examination of the Indictment of 10 June 2011 issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi & Mr Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version dated the same day was filed on 16 August 2011. This decision confirms the counts contained in the Indictment of 10 June 2011 with the exception of the attempted homicide of 231 other persons which does not fall under the constituent elements of a terrorist act but under those of intentional attempted homicide. See para. 53.

7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution Request for Leave to Amend the Indictment Pursuant to Rule 71(A) (ii), Submission of an Amended Indictment, and Related Prosecution Applications, confidential and ex parte, 8 February 2012.

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the indictment of an individual who was not initially accused in the Indictment of 10 June 2011.8

7. On 8 October 2012, the Prosecutor forwarded to the Pre-Trial Judge, for confirmation, an Indictment, accompanied by supplementary evidentiary materials, issued against Mr Merhi in the context of the Hariri case (the “Indictment of 8 October 2012”).9

8. On 27 November 2012, the Pre-Trial Judge held a meeting with the Prosecutor, pursuant to Rule 68 of the Rules, during which a number of issues relating to the Indictment of 8 October 2012 were discussed.

9. On 7 December 2012, the Prosecutor withdrew the Indictment of 8 October 2012.10

10. On 5 June 2013, the Prosecutor signed an Indictment issued against Mr Merhi. This case, entitled “The Prosecutor v. Merhi”, bears the reference “STL-13-04”.

11. On 24 June 2013, the Pre-Trial Judge was seized of the Prosecution’s submission for confirmation of the Indictment of 5 June 2013, as well as the accompanying evidentiary materials (the “Submission”).11 The same day, the Pre-Trial Judge was also seized of a corrigendum to the Indictment of 5 June 2013.12

8 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Decision relating to the Prosecution Request of 8 February 2012 for Leave to File an Amended Indictment, confidential, 13 March 2012.

9 STL, The Prosecutor v. Merhi, Case No. STL-12-03/I/PTJ, Prosecution’s Submission of an Indictment for Confirmation and Order to Keep the Filing and its Annexes Confidential and Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for non-Disclosure, confidential and ex parte, 8 October 2012.

10 STL, The Prosecutor v. Merhi, Case No. STL-12-03/I/PTJ, Withdrawal of the Indictment against Hasan (sic) Habib Merhi, confidential and ex parte, 7 December 2012.

11 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Prosecution’s Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes Confidential and Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for Non-Disclosure, confidential and ex parte, 5 June 2013.

12 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Corrigendum to Annex A of “Prosecution’s Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes Confidential and Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for Non-Disclosure”, confidential and ex parte, 20 June 2013.

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12. On 26 June 2013, the Prosecutor requested the withdrawal of two exhibits from the list of evidentiary materials filed in support of the Indictment of 5 June 2013.13 On 25 July 2013, the Pre-Trial Judge authorised that withdrawal.14

13. On 26 June 2013, the Pre-Trial Judge sought explanations from the Prosecutor regarding the Indictment of 5 June 2013.15

14. On 3 July 2013, by virtue of his authority under Rule 68 (E) and (F) of the Rules, the Pre-Trial Judge held a meeting with the Prosecutor in order to obtain a number of clarifications as well as information regarding the Indictment of 5 June 2013. On 16 July 2013, the Prosecutor completed his verbal response to those questions with a written note.16

15. On 15 July 2013, the Prosecutor filed a corrigendum to Annex F to the Submission by way of which he added eight files to the list of exhibits filed in support of the Submission, which had been omitted in error.17

16. On 16 July 2013, the Pre-Trial Judge sought explanations from the Prosecutor regarding a number of evidentiary supporting documents for the Indictment of 5 June 201318 to which the Prosecutor replied on 22 July 2013.19

13 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Prosecutor’s Request to Withdraw Two Internal Memoranda from Supporting Materials, confidential and ex parte, 26 June 2013.

14 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Decision Authorising the Withdrawal of Two Internal Memoranda from the Prosecution Exhibit List, confidential and ex parte, 25 July 2013.

15 Correspondence from the Pre-Trial Judge to the Prosecutor, Questions relatives à l’acte d’accusation du 5 juin 2013 dans l’affaire STL-13-04, confidential and ex parte, 26 June 2013.

16 Correspondence from the Prosecutor to the Pre-Trial Judge, reference IOP/O/L/NF/2013/0083, confidential, 16 July 2013.

17 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Corrigendum to Annex F to “Prosecution’s Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes Confidential and Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for Non-Disclosure”, confidential and ex parte, 15 July 2013 (the “Corrigendum of 15 July 2013”).

18 Correspondence from the Pre-Trial Judge to the Prosecutor, Questions to the Office of the Prosecutor related to the documents filed in support of the Prosecution’s Submission of an Indictment of 5 June 2013, confidential and ex parte, 16 July 2013.

19 Correspondence from the Prosecutor to the Pre-Trial Judge, Response to Pre-Trial Judge’s Questions related to documents filed in support of the Prosecution’s Submission of an Indictment of 5 June 2013, reference IOP/O/L/2013/NF/0086, 22 July 2013.

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17. On 19 July 2013, at the request of the Prosecutor,20 the Pre-Trial Judge ordered the Registry to file a certificate indicating that the evidentiary documents filed on 6, 11 and 20 May 2011 in the STL-11-01 case file are also evidentiary documents for the STL-13-04 case file, without it being necessary for them to be filed again in that file (the “Supporting Documents for the Indictment of 10 June 2011”).21 On 23 July 2013, the Pre-Trial Judge received that certificate.22

18. On 25 July 2013, the Prosecution filed a further corrigendum to the Indictment of 5 June 2013.23

19. On 29 July 2013, the Prosecution sought leave to file 12 additional items of evidence in support of the Indictment of 5 June 2013.24 Amongst these, the Prosecution is of the opinion that three items replace those that it had filed previously.

III. The Submission

20. The Prosecution seeks confirmation of the Indictment of 5 June 2013 against Mr Merhi in relation to the Hariri case. It also seeks the non-disclosure to the public of that Indictment and the supporting documents until a subsequent order is issued at its request, pursuant to Article 18 (2) of the Statute and Rules 61 (iv), 77 (A) and 96 (B) of the Rules.

21. The Prosecution requests the issuance of a national and international arrest warrant against Mr Merhi, should the Indictment of 5 June 2013 be confirmed, and

20 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Prosecution’s Request for a Certificate to be Filed in Lieu of Filing the Supporting Materials from Case IT-01-11 (sic) Ayyash et al in the Present Case, confidential and ex parte, 15 July 2013.

21 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Decision on “Prosecution’s Request for a Certificate to be Filed in Lieu of Filing the Supporting Materials from Case IT-01-11 (sic) Ayyash et al in the Present Case, confidential and ex parte, 19 July 2013.

22 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Certificate, confidential and ex parte, 22 July 2013.

23 STL, The Prosecutor v. Merhi, Case No. STL-13-04/I/PTJ, Second Corrigendum to the Merhi Indictment, confidential and ex parte, 25 July 2013 (the “Corrigendum of 25 July 2013”).

24 STL, The Prosecutor v. Ayyash et al. (sic), Case No. STL-13-04/I/PTJ, Prosecution Application to Present Additional Material in Support of the Indictment filed on 5 June 2013, confidential and ex parte, 29 July 2013 (the “Application of 29 July 2013”).

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states its intention to seek the joinder of this case with the case of “The Prosecutor v. Ayyash et al.”.

IV. Jurisdiction of the Pre-Trial Judge

22. In accordance with Article 18 of the Statute and Rule 68 of the Rules, the Pre-Trial Judge reviews the Indictment forwarded to him by the Prosecutor for confirmation, as necessary. Moreover, in accordance with Rule 74 of the Rules, at the request of the Prosecutor, he may order, in the interests of justice and in exceptional circumstances, the non-disclosure to the public of an indictment.

23. As a consequence, the Pre-Trial Judge has jurisdiction to rule on the Submission.

V. Applicable Law

24. The Pre-Trial Judge recalls that, in the context of the review of the Indictment of 17 January 2011, he forwarded to the Appeals Chamber preliminary questions relating to the crimes and modes of responsibility mentioned in that Indictment, as well as on cumulative charging.25

25. On 16 February 2011,26 the Appeals Chamber responded to the aforementioned questions by explaining the applicable law with respect to a terrorist act,27 to

25 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Order on Preliminary Questions addressed to the Judges of the Appeals Chamber pursuant to Rule 68, paragraph (G) of the Rules of Procedure and Evidence, 21 January 2011.

26 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/AC/R176bis, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011 (the “Interlocutory Decision of the Appeals Chamber”).

27 Id., Disposition, paras 1-4.

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intentional homicide,28 attempted homicide,29 modes of responsibility,30 cumulative charging,31 as well as aggravating circumstances.32

26. Insofar as the crimes and the modes of responsibility decided upon by the Prosecutor in the Indictment of 5 June 2013 are similar to those mentioned in the initial Indictment in the case of The Prosecutor v. Ayyash et al., for the purposes of the present decision, it should be recalled that the Appeals Chamber concluded:

i) With respect to the terrorist act:

Article 314 of the Lebanese Criminal Code and Article 6 of the Law of 1958, interpreted in the light of international rules binding upon Lebanon, provided such interpretation does not run counter to the principle of legality, 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;33 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


29 Ibid.

30 Id., Disposition, para. 13.


32 Id., paras 59, 145, 170 and 175.

33 The Appeals Chamber “notes that whether certain means are liable to create a public danger within the meaning of Article 314 should always be assessed on a case-by-case basis, having regard to the non-exhaustive list in Article 314 as well as to the context and the circumstances in which the conduct occurs. This way, Article 314 is more likely to be interpreted in consonance with international obligations binding upon Lebanon” (Id., Disposition, para. 3).

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of their occurrence (dolus eventualis, namely advertent recklessness or constructive intent) […].34

ii) With regard to conspiracy:

Article 270 of the Lebanese Criminal Code and Article 7 of the Law of 11 January 1958 provide the following elements for the crime of conspiracy […]:

a. two or more individuals;

b. who conclude or join an agreement of the type described in paragraph 196 [of the Interlocutory Decision of the Appeals Chamber];

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 (which for conspiracy to commit terrorism must satisfy the “means” element of Article 314 [of the Lebanese Criminal Code]); and

e. criminal intent relating to the object of the conspiracy.35

iii) With regard to intentional homicide:

Articles 547-549 of the Lebanese Criminal Code require the following elements for the crime of intentional homicide […]:

a. an act or culpable omission aimed at impairing the life of a person;

b. the result of the death of a person;

c. a causal connection between the act and the result of death;

d. knowledge of the circumstances of the offence (including that the act is aimed at a living person and conducted through means that may cause death); and

e. intent to cause death, whether direct or dolus eventualis.36




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iv) With regard to attempted homicide:

Articles 200-203 of the Lebanese Criminal Code require the following elements for the crime of attempted homicide […]:

a. a preliminary action aimed at committing the crime (beginning the execution of the crime);

b. the subjective intent required to commit the crime; and

c. the absence of a voluntary abandonment of the offence before it is committed.37

v) With regard to modes of responsibility:

An evaluation is to be made between international criminal law and domestic Lebanese law when the Tribunal applies modes of criminal responsibility. Should no conflicts arise, Lebanese law should be applied. However, if conflicts do arise, then, taking account of the circumstances of the case, the legal regime that most favours the accused shall be applied […].38

vi) With regard to cumulative charging:

Cumulative charging should only be allowed when separate elements of the charged offences make those offences truly distinct and where the rules envisaging each offence relate to substantially different values. The Tribunal should prefer alternative charging where a conduct would not permit multiple convictions. Modes of liability for the same offence should always be charged in the alternative […].39

vii) With regard to aggravating circumstances:

Taking into account that the intended result in the crime of terrorism is to spread terror, and not necessarily to cause death or injury, deaths caused by terrorism become aggravating circumstances, pursuant to Article 6 of the Law of 11 January 1958.40

37 Ibid.



40 Id., para. 59.

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[…]under Lebanese law the results of terrorist acts such as deaths, destruction of property and other impacts designated in Article 6 of the Law of 11 January 1958 constitute an aggravating circumstance of the terrorist act (not a material element) […]41.

This reasoning stems from the fact that premeditation, provided for in Article 549 of the Lebanese Criminal Code, is not an element of the crime but an aggravating circumstance of the sentence. Therefore it does not enter in the evaluation of the crime but becomes relevant at a later stage, in the determination of the sentence.42

To sum up, intentional homicide based on a direct intent leading to the death of the targeted victim falls under Articles 547 and 188 of the Lebanese Criminal Code. Intentional homicide based on dolus eventualis leading to the death of unintended victims falls under Articles 547 and 189 of the Code. Premeditation as an aggravating circumstance is applicable to both forms of the crime (with direct intent or dolus eventualis) and to all perpetrators and accomplices who share the premeditation.43

27. The Pre-Trial Judge refers to these definitions of the applicable law for the purposes of the review of the Indictment of 5 June 2013.

VI. Criteria for the review of the Indictment

28. In accordance with the terms of Article 18 of the Statute and Rule 68 of the Rules, within the context in which these provisions are relevant, with their subject and their aim, for the purposes of confirming an Indictment, the Pre-Trial Judge must ensure that:

i) the crimes referred to in the Indictment fall within the jurisdiction of the Tribunal, as defined in Articles 1 to 3 of the Statute;

41 Id., para. 145.

42 Id., para. 170.

43 Id., para. 175.

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ii) with regard to examination of the documents included with the Indictment, that Indictment relies first and foremost on evidence that is sufficient and credible to bring proceedings against the suspect; and

iii) the Indictment is sufficiently precise and reasoned to allow the suspect to understand the allegations made against him.44

VII. Supporting Documents for the Indictment of 5 June 2013

29. In the Submission, the Prosecution relies on 2,524 files which make up the evidentiary materials provided in support of the Indictment of 5 June 2013 (Annex F to the Submission) as well as on the evidentiary materials provided in support of the Indictment of 10 June 2011 in the case of “The Prosecutor v. Ayyash et al.”45

30. In the interests of rationality, the Prosecutor did not however file these last evidentiary materials because the Pre-Trial Judge had already received them in connection with the case of “The Prosecutor v. Ayyash et al.”. However, as indicated previously,46 on 22 July 2013, a certificate was filed stating that the evidentiary materials in support of the Indictment of 10 June 2011 were part of the STL-13-04 case file.47

31. The Pre-Trial Judge considers that, taking account of the wording of the certificate, the evidentiary materials filed in support of the Indictment of 10 June 2011 are part of all the evidentiary materials in support of the Indictment of 5 June 2013 in accordance with Rule 68 (F) of the Rules and should be treated as such for the requirements of the proceedings.


45 Submission, paras 9-11 and Corrigendum.

46 Supra, para. 17.

47 Cf. footnote 22 above.

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VIII. Examination of the Submission

A. Preliminary Observations

32. The Pre-Trial Judge hereby authorises the filing of the corrected versions of the Indictment of 5 June 2013.48

33. The Pre-Trial Judge also finds that the Prosecution requests of 15 and 29 July 2013 to add and replace evidentiary materials are well-founded. Indeed, the Prosecutor has stated the precise reasons why those materials are relevant to the Indictment of 5 June 2013 and were not filed at an earlier date. Furthermore, he stated that the three items49 replacing those that had been initially filed in support of the Submission had been amended, in particular following observations made by the Pre-Trial Judge during the review procedure of the Indictment of 5 June 2013. Consequently, the Pre-Trial Judge authorises the filing of those items in accordance with Rule 68 (1) of the Rules. The evidentiary materials filed in support of the Indictment of 5 June 2013, as well as the evidentiary materials filed in support of the Indictment of 10 June 2011 comprise, inter alia, reports from witnesses referred to as experts by the Prosecution, investigators notes, lists of telephone communications, witness interview reports, forensic reports, video recordings, photographs, maps and death certificates.

34. Among the evidentiary materials filed in June 2013, some of which were replaced on 29 July 2013, the Prosecution filed several reports prepared in particular by various members of its Office in relation to specific subject matters,50 including:

48 Any reference to the Indictment of 5 June 2013 in this document relates to the Indictment which was the subject of two corrigenda.

49 According to the Prosecution, they are the following reports: “Indictment Report –Attribution of Phone numbers to Hassan Habib MERHI”, “Communications Evidence concerning the Assassination of Rafik Hariri: Chronology Report” and “Co-location report number 3 written by [REDACTED] regarding the single person use of mobile telephone numbers 3150071 and 375231 by suspect 3”, Application of 29 July 2013, para. 4.

50 Contrary to what the Prosecution did in support of the Indictment of 10 June 2011 for which it filed a single report relating to the telephone communications made between the persons implicated in the attack perpetrated against Mr Hariri.

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i) the witness statement from [REDACTED] of 28 May 2013 which relates to the profile of Mr Merhi;51

ii) the report entitled “Indictment Report - Attribution of Phone Numbers to Hassan Habib Merhi” from [REDACTED] of 29 July 2013, which relates to the attribution of phones to the suspect;52

iii) the report entitled “Communications Evidence Concerning the Assassination of Rafik Hariri: Chronology Report-Hassan Habib Merhi” from [REDACTED] of 29 July 2013 (the “Chronology Report”), which relates to the participation of the suspect in the course of events leading to the attack of 14 February 2005;53 and

iv) the witness statement from [REDACTED] of 26 July 2013 relating to the co-location of the Green 3150071 and Purple 3575231 phones.54

35. These reports are in turn based on a series of other documents which are essential to the understanding of the case:

i) four sets of investigators notes relating respectively to the attribution of phones to Messrs Ayyash, Badreddine, Oneissi and Sabra;55

51 ERN 60280895-60280907.

52 ERN D0327911-D0328017.

53 ERN D0328018-D0328115.

54 ERN D0327905-D0327910. That statement relies on the following materials which were added on 29 July 2013: Maps provided to [REDACTED]on 12-12-2012 for use in [REDACTED] report entitled “Single person use of 2 mobiles-Suspect 3”, ERN D0327447-D0327453; CST for Phone Number 3150071 provided to [REDACTED] on 11-12-2012 for use in [REDACTED] report entitled “Single person use of 2 mobiles-Suspect 3”, ERN D0327454-D0327545; CST for Phone Number 3575231 provided to [REDACTED] on 11-12-2012 for use in [REDACTED] report entitled “Single person use of 2 mobiles-Suspect 3”, ERN D0327546-D0327766; Ayyash co-location report - Issue 01 containing report “Demonstration of single person use of multiple mobile phones using Cell Site Analysis”, ERN D0216976-D0217258; and Report: “Demonstration of single person use of multiple mobile phones using Cell Site Analysis Suspect 2” written by [REDACTED], ERN D0221699-D0221944.

55 Mr Ayyash: ERN D0205729-D0205934, 4 November 2012; Mr Badreddine: ERN D0187748-D0188040, 31 October 2012; Mr Oneissi: ERN 60275071-60275087, 24 October 2012: Mr Sabra: ERN 60274581-60274624, 19 October 2012.

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ii) a report entitled “Communications Evidence Concerning the Assassination of Rafik Hariri: Chronology Report” from [REDACTED], of 13 November 2012, which relates to the participation of the four accused in the course of the events leading to the attack of 14 February 2005;56

iii) a report entitled “Network Analysis Report: Red, Green, Blue and Yellow Phones”, analysing the phone networks prepared by [REDACTED], of 2 November 2012;57

iv) the report “[TRANSLATION] Presentation of the Cell Site Analysis Applied to the GSM Networks” prepared by [REDACTED], of 24 September 2012;58 and

v) an investigators note entitled “Acquisition of SIM Cards Report” relating to the acquisition of the phone cards presented in the Indictment of 5 June 2013, prepared by [REDACTED], of 4 October 2012.59

36. The Pre-Trial Judge considers that these reports and documents put into perspective the materials collected by the Prosecution in the context of its investigations. They allow the existence of prima facie evidence in support of the Indictment of 5 June 2013 to be verified in a comprehensible and ordered fashion.

37. The Pre-Trial Judge finds that as the Indictment of 5 June 2013 is based on the same kind of circumstantial evidence as that which substantiates the Indictment of 10 June 2011, the same remarks apply that were made in the Decision of 28 June 2011.60 Indeed, the role of the suspect was determined by the Prosecution essentially on the basis of the analysis of the telephone communications, as well as of the mobile phone usage. In that regard, the Pre-Trial Judge stated that:

56 ERN D0225397-D0225786.

57 ERN D0200399-D0200571.

58 ERN D0136125-D0136305.

59 ERN 60271149-60271206.

60 Decision of 28 June 2011, paras 37 and 38.

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It is only by having a comprehensive view of this evidence that it is possible to understand the attack of 14 February 2005, the events which preceded it and those which followed, as well as the manner in which the suspects were allegedly implicated in them. In light of his verifications, the Pre-Trial Judge deems that this evidence is sufficiently credible and relevant to review the Indictment initially. In order to lead to a conviction, it will nevertheless, if applicable, have to be shown to be established beyond reasonable doubt by the Trial Chamber.61

Finally, the Pre-Trial Judge emphasises that the alleged responsibility of the suspects, as co-perpetrators or accomplices, has been examined by taking account solely of the criteria established by the Appeals Chamber. As such, he has deemed that he should not decide on their “position in the hierarchy” as described by the Prosecutor in paragraph 5 of the Indictment.62

38. Lastly, the Pre-Trial Judge notes that the amendments to the Chronology Report filed in this case are, in particular, no longer aimed at designating the unidentified users of the phones of the different networks with the pseudonyms “S5”, “S6” “S7” etc. (subject number)63 and no longer attribute one or several phone numbers belonging to different networks.64 The Pre-Trial Judge considers however that the allegations relating to those unidentified users which appear in the Indictment of 5 June 2013 are based on other evidentiary materials and, in particular, those in support of the “Report relating to telephone communications made by persons implicated in the attack against Mr Hariri”, of 2 May 2011 by [REDACTED].65

61 Id., para. 37, footnote omitted.

62 Id., para. 38.

63 Indictment of 5 June 2013, para. 19.

64 Application of 29 July 2013, Annex C, p. 2.

65 The Report Relating to the Telephone Communications Between the Persons Implicated in the Attack against Mr Hariri, of 2 May 2011 by [REDACTED] – ERN 60218475-60218992 – was filed in the case of The Prosecutor v. Ayyash et al. and attached to the present case file by the certificate of 22 July 2013. Cf. footnote 22 above.

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B. The counts and the jurisdiction of the Tribunal

39. Pursuant to Articles 2 and 3 of the Statute and the relevant provisions of the Lebanese Criminal Code66 and of the Lebanese Law of 11 January 1958 “Increasing the penalties for sedition, civil war and interfaith struggle” (the “Law of 11 January 1958”),67 the Prosecution has accused Mr Merhi of:

i) conspiracy aimed at committing a terrorist act, as a co-perpetrator (Count 1);

ii) being an accomplice in the commission a terrorist act by means of an explosive device, against Rafic Hariri (Count 2);

iii) being an accomplice, of intentional homicide of Rafic Hariri, with premeditation by using explosive materials (Count 3);

iv) being an accomplice, of intentional homicide of 21 persons listed in Annex A to the Indictment of 5 June 2013, with premeditation by using explosive materials (Count 4);

v) being an accomplice, of attempted intentional homicide of 226 persons listed in Annex B to the Indictment of 5 June 2013, with premeditation by using explosive materials (Count 5).

40. The facts mentioned in the Indictment of 5 June 2013 relate to the attack carried out on 14 February 2005 against Mr Hariri and other persons. Pursuant to Article 1 of the Statute, those facts fall within the jurisdiction of the Tribunal.68

41. In the case at hand, the Indictment of 5 June 2013 charges the suspect with the crimes of conspiracy aimed at committing a terrorist act, of complicity in committing a terrorist act, of complicity in intentional homicide and complicity in attempted intentional homicide which are all referred to in Article 2 (a) of the Statute and in Article 3 (1) (a) of the Statute, in Articles 188, 189, 200, 212, 213, 219 (4) and (5),

66 Arts 188, 189, 200, 212, 213, 219 (4) and (5), 270, 314, 547 and 549 (1) and (7) of the Lebanese Criminal Code.

67 Arts 6 and 7 of the Lebanese Law of 11 January 1958.

68 Decision of 28 June 2011, paras 32-33.

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270, 314, 547, 549 (1) and (7) of the Lebanese Criminal Code and in Articles 6 and 7 of the Law of 11 January 1958.

42. As a consequence, the Pre-Trial Judge considers that the facts, the accusations and the modes of responsibility referred to do indeed fall within the jurisdiction of the Tribunal.

C. Assessment of the Counts of the Indictment

1. Relevant facts

43. Among the factual evidence put forward by the Prosecution and which has been established prima facie, the Pre-Trial Judge hereafter notes that which he considers the most relevant for him to rule on the counts of indictment.69

a. The attack, the claim of responsibility, and the analysis of the phone data

44. On 14 February 2005 at 12.55, Mr Hariri, former Prime Minister of Lebanon, was killed following the detonation of a large quantity of explosives – approximately equivalent to 2,500 kg of TNT – which had been hidden in a “Mitsubishi Canter” van in the centre of Beirut in Lebanon. That suicide attack also caused the death of 21 other persons and injured at least 226 and led to the partial destruction of several buildings.

45. Shortly after the attack, a video cassette accompanied by a letter claiming responsibility was received in Beirut by the Al-Jazeera press agency. That video cassette, broadcast the same day on television by that press agency, shows a person unknown to the public, named Mr Abu Adass, claiming responsibility for the attack on behalf of a fictitious alleged fundamentalist group called “Victory and Jihad in Greater Syria” and announcing a number of acts of the same kind to come. The

69 These factual elements rely principally on the same evidence as those which led the Pre-Trial Judge to consider as established prima facie evidence the factual elements contained in the Indictment of 10 June 2011 in the Ayyash et al. case.

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investigation however found that the perpetrator of the suicide attack was not Mr Abu Adass, without however identifying who it was.

46. The report and analysis of the call data records of 14 February 2005 enabled the Prosecution to discover six mobile phones which were communicating at key times and locations in relation to the attack. These six phones, whose users were registered under false names, were used exclusively to communicate with each other during the entire period that they were activated. For ease of understanding, the Prosecution has named the secret network formed by these phones the “Red Network”.

47. Subsequently, by using the technique of phone “co-location”,70 the Prosecution identified other mobile phones which were also used by the users of the “Red Network” phones. These phones were also registered under false names and some of them connected exclusively, or to a large extent, with each other, allowing them to be used clandestinely. The Prosecution has thus identified four other groups of phones that it has referred to as “Green”, “Blue”, “Yellow” and “Purple”.

48. In order to determine the identity of the users of the phones of all of these groups of phones, by continuing to make use of the technique of phone “co-location”, the Prosecution has identified the personal mobile phones of some of these users. These phones were used for daily business, to call persons whose identity could be more easily revealed as they were not acting clandestinely. The Prosecution has referred to these personal mobile phones as “PMPs”.

49. The identity of the users of these “PMPs” was researched [REDACTED]. Once a personal phone had been attributed to a particular person, the other phones belonging to one or several group(s) that were in “co-location” with that phone could be attributed to that same person.

50. According to its investigations, the Prosecution found, given all the evidence and reasoning, that:

70 According to the exhibit entitled “Indictment report, Attribution of phone numbers to Hassan Habib Merhi”, ERN D0321658 filed in support of the Indictment of 5 June 2013, [REDACTED].

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i) Mr Ayyash was the user of the personal mobile phones “PMP 165”, “PMP 091”, “PMP 170”, “PMP 935” and consequently of the “Red 741”, “Green 300”, “Blue 233” and “Yellow 294” phones;

ii) Mr Badreddine was the user of the personal mobile phones “PMP 663”, “PMP 354”, “PMP 944”, “PMP 195”, “PMP 683”, “PMP 486”, “PMP 593” (some of which were used consecutively) and consequently of the “Green 023” phone;

iii) Mr Merhi was the user of the “Purple 231” and “Green 071” phones;

iv) Mr Oneissi was the user of the “Purple 095” phone; and

v) Mr Sabra was the user of the “Purple 018” phone.

b. The identity and the role of the suspect

51. According to its investigations, the Prosecution found that Mr Merhi:

i) was a Lebanese citizen born on 12 December 1965 in Beirut (Lebanon), having resided at the following address: Section 27, eastern façade, Real Estate Number: 2501, Real Estate Zone: Bourj-El-Barajneh, District: Baabda, Governorate: Mount Lebanon, South Beirut and whose present address is unknown;

ii) participated with others, including the accused Messrs Badreddine, Ayyash, Oneissi and Sabra, in a conspiracy aimed at committing a terrorist act to assassinate Mr Hariri; and

iii) coordinated, with Mr Badreddine by way of the “Green” phones, the preparation of the false claim of responsibility broadcast on 14 February 2005 after the attack against Mr Hariri; he thus coordinated, using his “Purple 231” phone, the activities of Messrs Oneissi and Sabra in order to identify Mr Abu Adass, who falsely claimed, in a video recording, responsibility for the attack as well as the broadcast of that recording by Al-Jazeera.

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c. Preparation of the false claim of responsibility

52. According to the Prosecutor, the users of the “Purple” phones are at first sight implicated in the false claim of responsibility for the attack on the basis in particular of the following:

i) the “Purple” phones attributed to Messrs Oneissi and Sabra were active for 10 days in December 2004 and January 2005 in the vicinity of Mr Abu Adass’ home and the Arab University Mosque of Beirut which he apparently frequented. Mr Oneissi, using the alias “Mohammed”, approached Mr Abu Adass and then remained in contact with him before he disappeared on 16 January 2005. Mr Abu Adass then claimed responsibility for the attack in a video recording that was broadcast on television by AlJazeera after the attack;

ii) by means of their “Purple” phones, Messrs Oneissi, Sabra and Merhi were in contact from 2003 until early 2005: Messrs Oneissi and Sabra were in contact 84 times between 12 January 2003 and 16 February 2005; Messrs Sabra and Merhi were in contact 212 times between 7 January 2003 and 14 February 2005; and Messrs Merhi and Oneissi were in contact with each other 195 times between 25 June 2003 and 26 January 2005;

iii) more specifically, and according to the evidentiary materials, between 22 December 2004 and 14 February 2005, Mr Merhi and Messrs Oneissi and Sabra were in telephone contact using their “Purple” phones 45 times;

iv) the “Green” phones attributed to Messrs Merhi, Badreddine and Ayyash were in contact exclusively with each other from 13 October 2004 to 14 February 2005;

v) between 6 November 2004 at the latest and 7 February 2005, Mr Merhi, using his “Green 071” phone, was in contact with Mr Badreddine on his “Green 023” phone;

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vi) Mr Merhi, using his “Green 071” phone, was in contact with Mr Ayyash on his “Green 300” phone and, using his “Purple 231” phone, was in contact with Mr Ayyash’s personal mobile telephone “PMP 091”;

vii) more specifically, during the recruitment period of Mr Abu Adass, on 22 December 2004 and 7 January 2005, while Mr Oneissi was in the vicinity of the mosque reportedly frequented by Mr Abu Adass, Messrs Merhi and Oneissi were in telephone contact using their “Purple” phones. On 1 and 4 January 2005, at the time Mr Sabra was in the vicinity of the same mosque, Messrs Merhi and Sabra were in telephone contact using their “Purple” phones. During the same period, Messrs Oneissi and Sabra were in telephone contact six times using their “Purple” phones, while one or other of the two was in the vicinity of the mosque. On 23 and 27 December 2004, as well as on 2 January 2005, Messrs Merhi and Badreddine were in telephone contact using their “Green” phones;

viii) between 12 and 16 January 2005, the day of the alleged disappearance of Mr Abu Adass, Messrs Merhi and Badreddine were in daily telephone contact using their “Green” phones, as is established prima facie by the evidentiary materials. Between 14 and 15 January 2005, Messrs Merhi and Sabra were in telephone contact three times using their “Purple” phones and Messrs Oneissi and Sabra were in telephone contact twice using their “Purple” phones. On 16 January 2005, the day of the supposed meeting between Mr Oneissi – using the alias “Mohammed” – and Mr Abu Adass, Messrs Merhi and Badreddine were in telephone contact five times using their “Green phones”. On 17 January 2005, [REDACTED], Mr Oneissi, [REDACTED], contacted Mr Merhi using his “Purple” phone; and

ix) Mr Hariri departed Lebanon on 4 February 2005 and returned there on 7 February 2005. Between 5 and 6 February 2005, Mr Merhi, on the “Purple 231” phone, was in telephone contact five times with Mr Ayyash on his “PMP 091”. On the morning of 7 February 2005, the day of Mr Hariri’s supposed return, Messrs Merhi and Ayyash were in contact with Mr Badreddine on their “Green” phones.

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d. The broadcast of the false claim of responsibility

53. With regard to the broadcast of the false claim of responsibility by means of the delivery of a video cassette, the factors put forward by the Prosecutor are as follows:

i) on 14 February 2005, before, during and after the four calls Mr Oneissi or Mr Sabra made to Al-Jazeera and Reuters using the same telephone card which was used in several public payphones in Beirut, Mr Sabra, using the “Purple 018” phone, contacted Mr Merhi seven times using the “Purple 231” phone;

ii) on 14 February 2005, Mr Oneissi was in the vicinity of the tree where the video cassette containing the claim of responsibility was placed in order to be collected [REDACTED]; and

iii) on 15 February 2005, the “Purple 231” phone attributed to Mr Merhi ceased being used and on 16 February 2005, the “Purple 095” phone attributed to Mr Oneissi and the “Purple 018” phone attributed to Mr Sabra likewise definitively ceased being used.

2. The Counts

54. It is more logical for the Pre-Trial Judge firstly to examine Counts 2, 3 4 and 5 and conclude with Count 1 regarding conspiracy aimed at committing a terrorist act. Indeed, in order for it to be examined, a comprehensive view of all the factors mentioned in the other counts, in particular those concerning a terrorist act, is necessary.

a. Count 2: being an accomplice to commit a terrorist act

55. The Pre-Trial Judge notes that Count 2 contains the constituent elements of the offence of a terrorist act as defined by the Appeals Chamber, namely: the volitional

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commission of an act through means that are likely to pose a public danger, with the special intent to cause a state of terror.71

56. With regard to the responsibility of the suspect in a terrorist act, the Pre-Trial Judge notes that, according to Count 2, Mr Merhi bears individual criminal responsibility as an accomplice to committing a terrorist act. According to the Appeals Chamber,72 an accomplice is anyone who must have acted in a form specified by Article 219 of the Lebanese Criminal Code73 and be motivated by the knowledge of the intent of the primary perpetrators to commit a crime and the intention to assist these perpetrators in carrying out the crime.

57. On examining the material accompanying the Indictment of 5 June 2013 and, in particular, the relevant facts referred to in section VIII (C) of this decision, the Pre-Trial Judge finds that a sufficient prima facie case exists, in that:74

i) on 14 February 2005, at 12.55, an extremely powerful explosive device, concealed in a Mitsubishi Canter van, exploded on a public street, on rue Minet el Hos’n in Beirut (Lebanon) as the convoy escorting Mr Hariri, the former Prime Minister and a prominent political figure in Lebanon, was passing;

ii) the attack resulted in the death of Mr Hariri and 21 other persons and injured 226 persons and damaged several nearby buildings;

iii) due to its scale, this act created a state of terror which was aggravated by a public claim of responsibility and a threat that further similar attacks would follow. This claim of responsibility was also intended to create a false trail so as to shield the perpetrators from justice;

71 Interlocutory Decision of the Appeals Chamber, Disposition, para. 3.

72 Id., paras 218-228.

73 As amended by Article 11 of Legislative Decree No. 112 of 16 September 1983.

74 These presumptions shall, where appropriate, be confirmed and the evidence declared susbstantiated by the Trial Chamber.

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iv) Messrs Ayyash and Badreddine participated, as co-perpetrators, in the attack: they were implicated in the operations to locate and monitor the whereabouts of Mr Hariri and they were also in contact with each other during the location and purchase of the Mitsubishi Canter van in Tripoli which was used to conceal the explosive device and carry out the attack;

v) Messrs Oneissi and Sabra participated in the recruitment of Mr Abu Adass, who claimed responsibility for the terrorist act in a video recording which was broadcast shortly afterwards;

vi) Mr Merhi was in direct telephone contact with Mr Badreddine using the “Green” phones at various times in the months prior to the attack and during the recruitment of Mr Abu Adass by Messrs Oneissi and Sabra. Mr Abu Adass claimed responsibility for that act in a video recording broadcast shortly after the attack and was also in contact with Mr Ayyash before the attack;

vii) Mr Merhi oversaw the transmission by Messrs Oneissi and Sabra of the video cassette to the Al-Jazeera press agency on 14 February 2005, after the attack;

viii) Mr Merhi is therefore implicated in the claim of responsibility for the attack of 14 February 2005, the purpose of which was to create a false trail in order to shield the perpetrators from justice and aggravate the state of terror;

ix) in preparing the claim of responsibility for the attack before its execution, as mentioned in Count 2, Mr Merhi was aware of the intention of Messrs Ayyash and Badreddine to commit this terrorist act and he was personally willing to contribute to that act by way of these preparatory acts; and

x) by so doing, Mr Merhi lent his support to the preparation and commission of the terrorist act mentioned in Count 2.

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58. Therefore, in light of these presumptions, there is reason to prosecute Mr Mehri as being an accomplice to commit a terrorist act. Consequently, Count 2 should be confirmed against Mr Merhi.

59. The Pre-Trial Judge notes that although the evidentiary materials filed in support of the Indictment of 5 June 2013 can be used to justify prima facie the mode of responsibility chosen by the Prosecutor against Mr Merhi, namely being an accomplice to commit a terrorist act, they also allow a further form of participation in the terrorist act to be chosen, that of co-perpetrator, comparable to Messrs Badreddine and Ayyash. Indeed, the Prosecutor submits that Mr Merhi participated in establishing a conspiracy in order to commit a terrorist act at the same time as Messrs Badreddine and Ayyash, that the aim of that conspiracy was to commit a terrorist act by detonating a large quantity of explosives and that Mr Merhi was in contact with Messrs Badreddine and Ayyash prior to the preparation of the false claim of responsibility as part of the preparatory acts. Consequently, the distinction between the form of responsibility of Mr Merhi and that of Messrs Badreddine and Ayyash is not apparent. However, as the responsibility for prosecutions lies with the Prosecutor, the Pre-Trial Judge considers that it is not for him to oblige the Prosecutor to reclassify the facts, insofar as the position adopted by the Prosecutor is not likely to cause prejudice to the suspect.75

b. Count 3: being an accomplice to the intentional homicide with premeditation of Rafic Hariri

60. The Pre-Trial Judge notes that Count 3 of the Indictment of 5 June 2013 does not contain the constituent elements of intentional homicide as defined by the Appeals Chamber. However, the Pre-Trial Judge considers that the concise statement of the facts in the Indictment of 5 June 2013 contains facts on which the Prosecutor founded the legal classification of intentional homicide, namely the attack of 14

75 Pursuant to Rule 68 (I) (iii) and (iv) of the Rules, at the end of the examination of the Indictment submitted by the Prosecutor, the Pre-Trial Judge may confirm or dismiss one or more counts. Consequently, at the stage of the confirmation of the counts, the Pre-Trial Judge does not have the authority, as afforded to the judges of the International Criminal Court by way of Regulation 55 of the Regulations of the Court, to amend the legal characterisation of the facts.

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February 2005 which resulted in the death of Mr Hariri, committed with intent and with means likely to cause death.76 The Pre-Trial Judge considers that this statement of facts and their legal characterisation, together with the reference to the relevant provisions of the Statute and Lebanese law mentioned in Count 3, ensure that Mr Merhi is sufficiently informed of the charges laid against him.

61. With regard to the responsibility of the suspect in the commission of intentional homicide, the Pre-Trial Judge notes that the observations made in the context of the review of Count 2 may also be applied to the review of Count 3.

62. On examining the material accompanying the Indictment of 5 June 2013 and, in particular, the relevant facts referred to in section VIII (C), the Pre-Trial Judge finds that a sufficient prima facie case exists, in that:

i. for the same reasons as those mentioned in relation to Count 2, Mr Mer-hi lent his support to the preparation and commission of the intentional homicide of Mr Hariri mentioned in Count 3; and

ii. Mr Merhi was, at the very least, aware of the intention of Messrs Ayyash and Badreddine to commit the intentional homicide of Mr Hariri and was personally willing to contribute to that act by way of these prepa-ratory acts.77

63. Therefore, in light of these presumptions, there is reason to prosecute Mr Mehri as an accomplice to the intentional homicide of Mr Hariri. Consequently, Count 3 should be confirmed against Mr Merhi.

76 Indictment of 5 June 2013, para. 5.

77 Without prejudice to the observations relating to the standing of the co-perpetrator of a terrorist act as set out in para. 57.

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c. Count 4: being an accomplice to the intentional homicide with premeditation of 21 persons

64. The Pre-Trial Judge notes that the observations made in the context of the review of Count 3 relating to the constituent elements of intentional homicide may be applied mutatis mutandis to the review of Count 4.

65. With regard to the responsibility of the suspect in the intentional homicide, the Pre-Trial Judge notes that the observations made in the context of the review of Count 2 may also be applied to the review of Count 4.

66. On examining the materials accompanying the Indictment of 5 June 2013 and, in particular, the relevant facts referred to in section VIII (C), the Pre-Trial Judge finds that a sufficient prima facie case exists, in that:

i) for the same reasons as those mentioned in relation to Count 2, Mr Merhi lent his support to the preparation and commission of the intentional homicide of 21 persons in addition to Mr Hariri as mentioned in Count 4; and

ii) Mr Merhi was aware of the intention of Messrs Ayyash and Badreddine to commit the intentional homicide of 21 other persons and was personally willing to contribute to that act by way of these preparatory acts.

67. Therefore, in light of these presumptions, there is reason to prosecute Mr Mehri as an accomplice to the intentional homicide of 21 persons listed in Annex A to the Indictment of 5 June 2013. Consequently, Count 4 should be confirmed against Mr Merhi.

d. Count 5: being an accomplice to the attempted intentional homicide with premeditation of 226 persons

68. The Pre-Trial Judge notes that the observations made in the context of the review of Count 3 relating to the constituent elements of intentional homicide may be applied mutatis mutandis to the review of Count 5.

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69. With regard to the responsibility of the suspect in the intentional homicide, the Pre-Trial Judge notes that the observations made in the context of the review of Count 2 may also be applied to the review of Count 5.

70. On examining the materials accompanying the Indictment of 5 June 2013 and, in particular, the relevant facts referred to in section VIII (C), the Pre-Trial Judge finds that a sufficient prima facie case exists, in that:

i) for the same reasons as those mentioned in relation to Count 2, Mr Merhi lent his support to the preparation and commission of the attempted intentional homicide of 226 persons mentioned in Count 5; and

ii) Mr Merhi was aware of the intention of Messrs Ayyash and Badreddine to commit the intentional homicide of 226 other persons and was personally willing to contribute to that act by way of those preparatory acts.

71. Therefore, in light of these presumptions, there is reason to prosecute Mr Mehri as an accomplice to the attempted intentional homicide of 226 persons listed in Annex B to the Indictment of 5 June 2013. Consequently, Count 5 should be confirmed against Mr Merhi.

e. Count 1: conspiracy aimed at committing a terrorist act, as a co-perpetrator

72. The Pre-Trial Judge notes that Count 1 contains the constituent elements of the offence of conspiracy as defined by the Appeals Chamber, namely: the presence of two or more individuals; the conclusion or joining an agreement for the purpose of committing a crime against State security according to the means required by law to commit this crime; and criminal intent relating to the object of the conspiracy.78

73. With regard to the responsibility of the suspect in the conspiracy, the Pre-Trial Judge notes that, according to Count 1, he is a “co-perpetrator with shared intent”.79 According to the Appeals Chamber, a co-perpetrator must contribute to bringing into

78 Interlocutory Decision of the Appeals Chamber, Disposition, para. 7.

79 Indictment of 5 June 2013, para. 54 (c).

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being the objective and subjective constituent elements of the crime of conspiracy aimed at committing a terrorist act.80

74. On examining the materials accompanying the Indictment of 5 June 2013 and from the review of the aforementioned Counts 2 to 5, the Pre-Trial Judge finds that a sufficient prima facie case exists, in that:

i) Messrs Merhi, Ayyash, Badreddine, Oneissi and Sabra, together with others unidentified, were in contact, directly or indirectly, for a significant period of time prior to the attack of 14 February 2005, in particular at key moments linked to this act, its preparation and the way in which responsibility for the attack was claimed;

ii) due to its size, the intended victim and the resulting state of terror, this terrorist act was an attack on Lebanese State security; and

iii) the actions of Mr Merhi and the four accused and their direct contact with each other suggest that they acted within the framework of a prior agreement aimed at committing the terrorist act of 14 February 2005.

75. Therefore, in light of these presumptions, there is reason to prosecute Mr Mehri as being a co-perpetrator of conspiracy aimed at committing a terrorist act. Consequently, Count 1 should be confirmed against Mr Merhi.

76. The Pre-Trial Judge notes that although the materials filed in support of the Indictment of 5 June 2013 can be used to justify prima facie the date of the conspiracy aimed at committing a terrorist act decided by the Prosecutor, namely 11 November 2004, they would likewise permit an earlier date to be chosen. Indeed, according to those materials, the surveillance of Mr Hariri took place over a period of 10 days between 20 October and 10 November 2004. Furthermore, telephone communications between Messrs Merhi, Badreddine, Ayyash, Sabra and Oneissi took place as of 1 September 2004. However, as the responsibility for prosecutions lies with the Prosecutor, the Pre-Trial Judge considers that it is not for him to oblige the Prosecutor to reclassify the facts by changing the date he has chosen to an earlier

80 Interlocutory Decision of the Appeals Chamber, paras 213-217.

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one, insofar as the position adopted by the Prosecutor is not likely to cause prejudice to the suspect.

f. Cumulative charging

77. In accordance with the Interlocutory Decision of the Appeals Chamber, there is no objection to the Prosecutor charging concurrently the crimes of conspiracy aimed at committing a terrorist act, being an accomplice in committing a terrorist act, intentional homicide and attempted intentional homicide even though, with the exception of conspiracy, these crimes are all based on the same facts.81

3. Requirements of grounds and precision and amendments to be made to the Indictment of 5 June 2013

78. The Pre-Trial Judge finds that the Indictment of 5 June 2013 meets the requirements with regard to the grounds and precision required under international jurisprudence, the Statute and the Rules. Subject to a decision rendered on preliminary motions,82 the Indictment of 5 June 2013 is sufficiently clear and accurate so as to ensure that the suspect understands the allegations made against him and, consequently, allow him in particular to prepare his defence and, if appropriate, challenge the legality of his detention.

IX. Requirements of confidentiality

79. The Prosecutor puts forward several reasons in support of his request for non-disclosure that are principally linked to the need for all possible steps to be taken to ensure the arrest of the suspect, to ensure the smooth running of the ongoing investigations and ensure the protection of witnesses.

80. In accordance with Rule 74 of the Rules, there are grounds for the Indictment of 5 June 2013 and the accompanying material to remain confidential in order to “ensure the integrity of the judicial procedure and, in particular ensure that the search

81 Decision of 28 June 2011, paras 92-93.

82 Rule 90 of the Rules.

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and, where appropriate, apprehension [of Mr Merhi] is carried out effectively”83. The confidentiality should likewise assist in “ensuring the protection of the witnesses concerned by not revealing their identity and in safeguarding the ongoing investigations by not disclosing the techniques that have been employed and the information that has been gathered”.84 The Indictment of 5 June 2013 may however be disclosed to the competent authorities of the Lebanese Republic and to those of other States to whom the Prosecutor might transmit the Indictment of 5 June 2013 pursuant to Rule 74 of the Rules.

81. The Prosecutor’s request to redact certain information in the Indictment of 5 June 2103 for the purpose of serving it on Mr Mehri upon his possible apprehension is also well-founded given that the information could endanger potential witnesses. As a consequence, a redacted version of the Indictment of 5 June 2013 shall be filed by the Prosecutor as soon as possible so that it might be served on Mr Mehri.

82. For the same reasons, the Pre-Trial Judge considers proprio motu that this decision should remain confidential until further notice and until such time that a redacted version of it has been filed for the purpose of serving it on Mr Mehri upon his possible apprehension.

83. This decision and the non-redacted Indictment of 5 June 2013 shall be served on Mr Mehri upon his possible transfer to the Headquarters of the Tribunal.

84. All the materials submitted in support of the Indictment of 5 June 2013 shall be disclosed to Mr Merhi in accordance with the relevant provisions of the Rules.


84 Ibid.

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85. DISPOSITION

FOR THESE REASONS,

Pursuant to Article 18 (1) of the Statute and Rules 68 and 74 of the Rules,


AUTHORISES the filing of the corrigenda of 24 June and 25 July 2013 to the Indictment of 5 June 2013;

AUTHORISES the filing of the materials mentioned in the Corrigendum of 15 July 2013 and the materials mentioned in the Application of 29 July 2013;

CONFIRMS against Mr Merhi the counts mentioned in the Indictment of 5 June 2013 of:

1. conspiracy aimed at committing a terrorist act, as a co-perpetrator (Count 1);

2. as an accomplice:

i) committing a terrorist act (Count 2);

ii) intentional homicide with premeditation (of Mr Hariri) (Count 3);

iii) intentional homicide with premeditation (of 21 persons listed in Annex A to the Indictment of 5 June 2013) (Count 4); and

iv) attempted intentional homicide with premeditation (of 226 persons listed in Annex B to the Indictment of 5 June 2013) (Count 5);

ORDERS that all the evidentiary material submitted in support of the Indictment of 5 June 2013 be disclosed to Mr Merhi in accordance with the relevant provisions of the Rules;

ORDERS that this decision, together with the Indictment of 5 June 2013, remain confidential until the Indictment has effectively been served on Mr Mehri or until further notice, with the exception of the Indictment of 5 June 2013 which may be disclosed to the competent authorities of the Lebanese Republic and to those of other

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States to whom the Prosecutor might transmit the Indictment pursuant to Rule 74 of the Rules;

ORDERS the Prosecutor to file a redacted version of the Indictment of 5 June 2013 so that it might be served on Mr Mehri upon his possible apprehension, by 6 August 2013 at the latest; and

STATES that a redacted version of this decision shall be filed so that it might be served on Mr Mehri at the time of his possible apprehension; and

STATES that this decision and the non-redacted Indictment of 5 June 2013 shall be served on Mr Mehri at the time of his possible transfer to the Headquarters of the Tribunal.

Done in English, Arabic and French, the French text being authoritative.

Leidschendam, 11 October 2013




Title: Decision on Application by Counsel for Messrs Badreddine and Oneissi against President’s Order on Composition of the Trial Chamber of 10 September 2013

Short title: Challenging Decision of the President AC

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231

THE APPEALS CHAMBERCase No.: STL-11-01/PT/ACBefore: Judge Ralph Riachy, Presiding

Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko Judge Ivana Hrdličková

Registrar: Mr Daryl MundisDate: 25 October 2013Original language: EnglishType of document: Public

THE PROSECUTOR v.



DECISION ON APPLICATION BY COUNSEL FOR MESSRS BADREDDINE AND ONEISSI AGAINST PRESIDENT’S ORDER ON

COMPOSITION OF THE TRIAL CHAMBER OF 10 SEPTEMBER 2013








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Challenging Decision of the President AC

INTRODUCTION

1. The Appeals Chamber is seized with an application filed jointly by the Defence teams for Messrs Badreddine and Oneissi (“Defence”)1 against an order of the President (“President’s Order”) in which the President re-composed the Trial Chamber following the resignation of its Presiding Judge.2

BACKGROUND

2. After the determination of the United Nations Secretary-General that the Judges of the Trial Chamber should take office,3 the then President Antonio Cassese first convened the Trial Chamber as of 20 September 2011, assigning two alternate Judges (in addition to the three sitting Judges) pursuant to Article 8 (3) of the Statute of the Special Tribunal for Lebanon (“Statute” and “Tribunal”, respectively).4

3. On 9 September 2013, Judge Robert Roth, Presiding Judge of the Trial Chamber, resigned. The four remaining Judges requested the President, Judge David Baragwanath, to “take all necessary steps according to Article 8(3) of the Statute of the Tribunal to ensure that the international alternate Judge, Judge Janet Nosworthy, is appointed as a Judge of the Trial Chamber”, so as to “allow the Trial Chamber to continue functioning”.5

4. On 10 September 2013, the President issued the Order and appointed Judge Nosworthy—hitherto international alternate Judge—as sitting Judge on the Trial Chamber’s bench.

1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Application Alleging Abuse of Authority against the Order of the President of the Tribunal of 10 September 2013, 21 October 2013 (“Application”).

2 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Order on Composition of the Trial Chamber, 10 September 2013 (“Order”).

3 See Article 17 (b) of the Annex to UN Security Council resolution 1757 (2007).

4 STL, Prosecutor v. Ayyash et al., STL-11-01/I/PRES, Order on Composition of the Trial Chamber, 8 September 2011.

5 Confidential letter from Judge Micheline Braidy, Judge David Re, Judge Janet Nosworthy (alternate Judge), Judge Walid Akoum (alternate Judge), 9 September 2013.

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5. Thereafter, three Defence teams requested the President to reconsider the Order.6 The President ruled that he had no power to do so.7 On 22 October 2013, the Defence teams for Messrs Badreddine and Oneissi filed the present Application. On 24 October 2013, the Prosecutor informed the Appeals Chamber that he would not respond.8

DISCUSSION

I. Composition of the Appeals Chamber

6. The Presiding Judge of the Chamber, Judge Baragwanath, has elected to recuse himself from these proceedings due to the fact that the Order was made by him in his capacity as President.9

7. Pursuant to Article 8 (1) (c) of the Statute, the Appeals Chamber is composed of five judges including the Presiding Judge (who is ex officio President of the Tribunal), with no designated alternate judge. The recusal of the President reduces the composition of the Appeals Chamber to four judges.10

6 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Motion for Reconsideration and Rescission of the President’s “Order on Composition of the Trial Chamber” of 10 September 2013, 23 September 2013.

7 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Decision on Defence Motion for Reconsideration and Rescission of Order Composing the Trial Chamber, 4 October 2013 (“Reconsideration Decision”).

8 E-mail to President’s Chef de Cabinet of 24 October (also copied to the Defence).

9 Letter from President Baragwanath to Vice-President Riachy, 24 October 2013. The full text of the letter reads: “Dear Vice-President, [a]n appeal has been filed in the Appeals Chamber against my decision as President under Article 8(3) of the Statute of the Tribunal to assign Judge Nosworthy, appointed by the UN Secretary General as an alternate judge under Article 8 (1)(d), to replace Judge Roth as a member of the Trial Chamber under Article 8(1)(b). It is well settled that a judge is disqualified from sitting both if he is actually biased or if to do so would cause an informed observer to form a reasonable apprehension of bias. The sole exception is where no judicial decision is possible unless the judge sits. I am satisfied that to sit on an appeal from my own decision would clearly infringe the test of reasonable apprehension of bias. The Appeals Chamber has already ruled that it may sit in the absence of its President whose decision is challenged in the particular appeal. It follows that it is my duty to advise you that I hereby disqualify myself from participating as a member of the Appeals Chamber which is to determine the appeal.”

10 STL, In the matter of El Sayed, CH-AC-2010-01, Decision on the Application to Challenge the Order of the President of the Appeals Chamber to Stay the Order of the Pre-Trial Judge and to Call upon Amicus Curiae, 8 November 2010, para. 14 (“El Sayed Decision of 8 November 2010”).

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8. We have previously held that in such circumstances the necessity principle requires the remaining four Judges to exercise the jurisdiction of the Appeals Chamber,11 and we see no reason to depart from that position in the instant case. The Appeals Chamber is properly seized of a case even when composed of only four Judges, because none of its members can be replaced by an alternate Judge. Moreover, unlike other international tribunals, the Statute of this Tribunal does not provide for the appointment of a Judge from the other Chambers to temporarily serve on the Appeals Chamber.12 We therefore see what we have done previously as the only course of action to overcome the impasse and to avoid denial of justice.13 We further note that in this specific instance the Defence itself acknowledges the possibility for the President recusing himself.14

II. Admissibility of the Application

9. We first note that neither the Statute nor the Tribunal’s Rules of Procedure and Evidence (“Rules”) grant the parties an explicit right to challenge a decision by the President. Indeed, as held by the President, in common with the practice of other international tribunals with similar provisions, an order of the President composing or re-composing a bench of the Tribunal is a purely administrative matter and not subject to challenge by the parties.15 This includes both requests for reconsideration of the order by the President and any requests for review by the Appeals Chamber.

10. Acknowledging this position of the law, Defence counsel rely on the inherent powers of the Appeals Chamber to find their application admissible. They argue in effect that the Defence must be able to ensure respect of all fundamental rights of the Accused and that adhering to a formalistic reading of applicable provisions would

11 Id. at paras 14-17, referring to other international jurisprudence; see also Grant Hammond, Judicial Recusal – Principles, Process and Problems (Hart 2009), pp. 84-85 (for the practice of various Supreme Courts, such as the US Supreme Court and the High Court of Australia).

12 See, e.g., Rule 27 (C) of the ICTY Rules of Procedure and Evidence.

13 El Sayed Decision of 8 November 2010, paras 15-17.

14 Application, para. 7.

15 Reconsideration Decision, paras 12-15 (with further reference to the case-law of other courts).

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lead to a denial of justice.16 While we have recognized limited inherent powers before, we have also held that the authority of the Appeals Chamber to entertain appeals outside of the Rules is exceptional and limited to cases where a situation has arisen that was not foreseen by the Rules.17

11. Indeed, we stated that “the jurisdiction of the Appeals Chamber is limited by the Statute and Rules” and that “there can be no right of appeal if it was the express intention of the drafters to exclude it”.18 This is also the approach applied by both domestic and other international jurisdictions.19 Even assuming that the Appeals Chamber will, in exceptional circumstances, consider appeals or other applications outside the scope of the Rules, this would rest on the consideration that “injustice may result if such an error as is alleged were left uncorrected”.20 In other words, any exercise of inherent jurisdiction would have to address a lacuna in our legal regime. But this is not the case here.

12. In this context, the reliance of counsel on a decision of the International Criminal Tribunal for Rwanda (“ICTR”), which addressed a completely different factual situation, is misplaced. In this and other decisions, the ICTR Appeals Chamber held that it had the inherent power to review decisions of that tribunal’s President which concerned issues such as the status of counsel or the detention regime but only if those issues involved “the fairness of proceedings on appeal”.21 This was

16 Application, para. 6.

17 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR90.1, Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012 (“Ayyash et al. Jurisdiction Decision”), para. 17; STL, In the matter of El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, para. 54.

18 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.3, Decision on Appeal by Legal Representative of Victims Against Pre-Trial Judge’s Decision on Protective Measures, 10 April 2013, para. 11.

19 Ayyash et al. Jurisdiction Decision, fns 54, 55 (providing references).

20 STL, El Sayed, CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, paras 54-55.

21 ICTR, Nahimana et al. v. Prosecutor, ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006, para. 9; ICTR, Nahimana et al. v. Prosecutor, ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3;

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because the Appeals Chamber had the “statutory duty” to safeguard the appellate proceedings.22 Those cases are thus distinguishable from the instant case.

13. In sum, the Application is not admissible. We find it necessary, however, to add an observation. The Defence’s arguments seem to be based on the false premise that, absent the ability to contest the President’s Order as such, the Defence (or, for that matter, the Prosecutor) would be limited in their ability to challenge the consequences arising from an irregular composition of the Trial Chamber. We cannot agree with such a reading.

14. Indeed, it was open to the Defence to challenge the allegedly incorrect composition of the Trial Chamber with that Chamber directly. Counsel could have raised this as a certifiable issue in their motions seeking certification to appeal the Trial Chamber’s Decision on Defence Motions for Certification for Appeal of the Trial Chamber’s 13 September 2013 ‘Decision on Alleged Defects in the form of the Indictment’, issued on 9 October 2013.23 They chose not to do so.

15. We note that the Defence relies on case-law of the European Court of Human Rights to establish a right of appeal against the President’s Order. However, in Latvia (from which one of the cases, dealing with irregular composition of the bench cited by the Defence, originated) the Code of Criminal Procedure requires any motion against the composition of a Chamber to be decided by the same Chamber, without the Judge who is sought to be disqualified.24

ICTR, Nshogoza v. Prosecutor, ICTR-2007-91-A, Decision on Request for Judicial Review of the Registrar’s And President’s Decisions Concerning Payment of Fees and Expenses, 13 April 2010, para. 14; see also ICTY, Prosecutor v. Milutinović et al., IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, paras 19-20 (relating to the similar statutory obligation of Trial Chambers, but cautioning that “exercise of such power should, however, be closely related to the fairness of the trial, and it should not be used as a substitute for a general power of review”); ICTY, Prosecutor v. Galić, IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003, para. 8.

22 ICTR, Nahimana et al. v. Prosecutor, ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7.

23 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/TC, Decision on Defence Motions for Certification for Appeal of the Trial Chamber’s 13 September 2013 ‘Decision on Alleged Defects in the form of the Indictment’, 9 October 2013 (see fn. 2 for references to the motions filed by three Defence teams).

24 See ECtHR, Lavents v. Latvia, 58442/00, Judgment, 28 November 2002 (cited by the Defence at fn. 8 of the Application), para. 49.

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16. More importantly in the context of this Tribunal, Lebanese law does not have provisions that allow a direct challenge of the type raised by the Defence. In Lebanon, the proper way to challenge the allegedly irregular composition of a bench is to raise the matter before the Court of Cassation against a substantive criminal decision taken by that bench.25 There is no provision to directly appeal, or otherwise seek remedy against, the appointment of judges to a bench—but this of course does not mean that parties in Lebanon are not allowed to challenge decisions issued by a purportedly irregularly constituted bench.

17. We further find the Application frivolous. Indeed, we have previously issued a warning that “we will not tolerate the filing of appeals that lack any serious legal or factual basis”.26 This is the case here. We therefore order the Registrar, pursuant to Rule 126 (G), to withhold payment of fees associated with the production of the Application and the costs thereof, with the necessary information to be obtained from the Defence Office’s Legal Aid Unit.

25 Apart from cases of requests for disqualification (which are in any event not brought before the authority assigning judges to a bench), see in particular Article 296 (a) of the Lebanese New Code of Criminal Procedure, providing that a judgment may be challenged if it was delivered “by a body that was not legally constituted” (English text available on the Tribunal’s website).

26 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.2, Decision on Appeal against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor, 13 November 2012, para. 22.

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DISPOSITION

FOR THESE REASONS;

THE APPEALS CHAMBER

FINDS the Application inadmissible;

ORDERS the Registrar to withhold the fees associated with the production of the Application.


Dated 25 October 2013 Leidschendam, the Netherlands

Judge Ralph Riachy Presiding



Title: Decision on Request by Counsel for Messrs Badreddine and Oneissi for Reconsideration of the Appeals Chamber’s Decision of 25 October 2013

Short title: Reconsideration of a Decision AC

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THE APPEALS CHAMBERCase No.: STL-11-01/PT/ACBefore: Judge Ralph Riachy, Presiding

Judge Afif Chamseddine Judge Daniel David Ntanda Nsereko Judge Ivana Hrdličková

Registrar: Mr Daryl MundisDate: 10 December 2013Original language: EnglishType of document: Public

THE PROSECUTOR v.



DECISION ON REQUEST BY COUNSEL FOR MESSRS BADREDDINE AND ONEISSI FOR RECONSIDERATION OF THE

APPEALS CHAMBER’S DECISION OF 25 OCTOBER 2013








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Reconsideration of a Decision AC

INTRODUCTION

1. In a recent decision (“the Decision”), we found an application submitted jointly by Defence counsel for Messrs Badreddine and Oneissi (“Defence”) to be frivolous and, under Rule 126 (G) of the Rules of Procedure and Evidence (“Rules”), ordered the Registrar to withhold payment for the fees associated with the production of the application.1 We are now seized with a request by the Defence to reconsider this Decision pursuant to Rule 140 of the Rules.2

2. We reject the Request because the Defence has not demonstrated that the Decision was erroneous and resulted in an injustice.

BACKGROUND

3. In the Decision, we dismissed an application filed by the Defence that was directed against an order by the President re-composing the Trial Chamber following the resignation of its Presiding Judge.3 In addition to finding the application inadmissible, we also found that it was frivolous and ordered the Registrar to “withhold payments of fees associated with the production of the Application and the costs thereof”.4

1 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC, Decision on Application by Counsel for Messrs Badreddine and Oneissi Against President’s Order on Composition of the Trial Chamber of 10 September 2013, 25 October 2013, para. 17, Disposition. All further references to filings and decisions relate to this case number unless otherwise stated.

2 Request for Reconsideration of the Appeals Chamber’s Decision of 25 October 2013, 18 November 2013 (“Request”), para. 1.

3 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PRES, Order on Composition of the Trial Chamber, 10 September 2013; Decision, para. 13, Disposition.

4 Decision, para. 17, Disposition. It is our understanding that this order, for a number of technical reasons, has not been fully implemented yet (see E-mails from Deputy Registrar to Legal Officer of the Appeals Chamber, 27 November 2013, 9 December 2013). For sake of clarification, we recall that a request for reconsideration, just like an appeal, does not suspend the execution of an order, unless such suspension is explicitly granted by the Chamber (see ICTY, Prosecutor v. Prlić, IT-04-74-T, Decision on Request for Reconsideration, or in the Alternative, for Certification to Appeal the 1 February 2010 Decision Applying Rule 73 (D) of the Rules to the Prlić Defence, 28 June 2010, pp. 4, 6; see also ICTR, Munyagishari v. The Prosecutor, ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s Motion for Reconsideration of Prior Reconsideration Decisions, 24 July 2013, p. 3).

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4. The Defence subsequently sought authorization from the Presiding Judge of the Appeals Chamber in this matter, Judge Riachy, to seek reconsideration of the Decision with respect to the order on fees.5 Such authorization was granted but limited in scope. In particular, the Presiding Judge found a number of the Defence submissions “manifestly unfounded”.6 He consequently granted leave

to Defence counsel for Messrs Badreddine and Oneissi to file a request for reconsideration of the Appeals Chamber’s decision of 25 October 2013, limited, however, to the grounds that (i) the application of Rule 126 (G) allegedly leads to an unfairness because it appears to apply only to assigned Defence counsel and that (ii) counsel was not heard before the Appeals Chamber made its ruling[.]7

The Presiding Judge also permitted the Prosecutor, the Head of Defence Office and the Registrar to each file a response to the request for reconsideration.8

5. The Defence then filed the Request to which both the Head of Defence Office and the Prosecutor responded.9 The Registrar informed the Chamber that he would not make any submissions.10

5 Request for Authorisation for Reconsideration of the Decision of the Appeals Chamber of 25 October 2013, 1 November 2013.

6 Decision on Request by Defence for Messrs Badreddine and Oneissi for Authorization to Seek Reconsideration of the Appeals Chamber’s Decision of 25 October 2013, 13 November 2013 (“Decision Granting Leave”), paras 7-9, 12.

7 Id. at Disposition.

8 Ibid.

9 Request; Observations from the Defence Office Relating to the Request for Reconsideration of the Appeals Chamber’s Decision of 25 October 2013, 25 November 2013 (“HDO Observations”); Prosecution Response to “Requête en réexamen de la Décision de la Chambre d’appel du 25 Octobre 2013”, 25 November 2013 (“Prosecutor’s Response”).

10 E-mail from Registry Legal Office to Legal Officer of the Appeals Chamber, 25 November 2013.

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DISCUSSION

I. Preliminary Issues

A. Composition of the Appeals Chamber

6. The Decision that is subject to the request for reconsideration was taken by the Appeals Chamber sitting with four Judges. This was because the Presiding Judge of the Appeals Chamber, Judge Baragwanath, elected to recuse himself from the proceedings given that the original order against which the Defence application was directed was made by him in his capacity as President.11 Consequently, the Request, which seeks reconsideration of the Decision, must be decided by the Appeals Chamber with the same composition of four Judges, without the participation of Judge Baragwanath.

B. Scope of the reconsideration request

7. As set out above, the Presiding Judge granted leave to seek reconsideration only with respect to two matters relating to the application of Rule 126 (G).12 He explicitly rejected as manifestly unfounded the Defence arguments concerning an alleged violation of their immunity from legal process.13 These arguments were based on Article 13 of the Document Annexed to Security Council Resolution 1757, which regulates, inter alia, the relationship between the Tribunal and Lebanon.14

8. Counsel now seek to resurrect the immunity argument through subterfuge, camouflaging their claim by relying on the similar Article 22 of the Headquarters Agreement between the United Nations and the Netherlands.15 But, as also noted

11 See Decision, paras 6-8.

12 Decision Granting Leave, Disposition.

13 Decision Granting Leave, para. 7.

14 Article 13 reads in relevant part: “(2) [C]ounsel shall be accorded: […] (c) Immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed in his or her capacity as counsel. […]”.

15 Request, paras 3, 5-7 (referring to the Agreement between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the Special Tribunal for Lebanon, 21 December 2007). Article

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by the Prosecutor,16 they were not granted leave to seek reconsideration based on the issue of immunity. Consequently, and in accordance with Rule 140, we hold that this issue is not properly before us. We also find that such an attempt to circumvent the Decision Granting Leave is disingenuous and borders on the abusive. A reconsideration request before the Appeals Chamber is not a forum to advance arguments for which leave was not granted by the Presiding Judge, or to present new arguments that were not litigated previously before him. We disapprove of such practice and summarily dismiss the Request in this respect.

II. Applicable Law

9. Rule 140 provides:

A Chamber may, proprio motu or at the request of a Party with leave of the Presiding Judge, reconsider a decision, other than a Judgement or sentence, if necessary to avoid injustice.

10. We have previously held that reconsideration is an exceptional measure and subject to strict requirements.17 A party seeking the remedy must demonstrate that reconsideration is necessary to avoid an injustice. What constitutes an injustice is case-dependent, but “[a]t a minimum, it involves prejudice.”18 The party must allege prejudice on specific grounds, which may include that a decision is “erroneous or [. . .] constituted an abuse of power on the part of the Chamber” or that “new facts or a material change in circumstances” have arisen after the decision is made.19 We

22 of that Agreement reads in relevant part: “(1) Counsel shall enjoy the following […] immunities […]: (c) immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in their official capacity […].

16 Prosecutor’s Response, para. 2

17 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/R176bis, Decision on Defence Requests for Reconsideration of the Appeals Chamber’s Decision of 16 February 2011, 18 July 2011 (“Rule 176 bis Reconsideration Decision”), para. 23; see also STL, Prosecutor v. Ayyash et al., STL-11-01/PT/AC/AR126.1, Corrected Version of Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, para. 19.

18 Rule 176 bis Reconsideration Decision, para. 24.

19 Id. at para. 25.

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recall that “the presence of these grounds is not sufficient per se. The party seeking reconsideration must also show that they resulted in prejudice”.20

11. Rule 126 (G) states the following:

When a Chamber finds that a motion or other filing is frivolous or is an abuse of process, the Registrar shall withhold payment of fees associated with the production of that motion or other filing and the costs thereof.

III. The merits of the Request

12. Counsel seek reconsideration of our decision to withhold their fees for filing a frivolous application on two grounds. They first argue that a sanction under Rule 126 (G) only applies to assigned counsel (i.e. counsel funded by the Tribunal’s legal aid scheme) and not to appointed counsel (i.e. counsel paid for by an accused) or counsel for the Prosecutor.21 In counsel’s view, this “is a clear breach of the principle of equality before the law” and is “discriminatory”.22 The Prosecutor disagrees, arguing that “the Rules empower the Tribunal to sanction any counsel who files frivolous motions”.23

13. Counsel next argue that our decision breached the “adversarial principle” because we did not hear them before imposing the sanction.24 This assertion is supported by the Head of Defence Office.25

A. Whether Rule 126 (G) is discriminatory

14. The Defence argument that Rule 126 (G)—and, by extension, our Decision—are discriminatory rests on the premise that this Rule is applicable to assigned counsel

20 Id. at para. 26.



23 Prosecutor’s Response, para. 3; see also paras 4-6. The Head of Defence Office does not make submissions on this issue.


25 HDO Observations, para. 2. The Prosecutor does not respond on this issue.

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only. However, this is not the case. To start with, we never made such a holding in our Decision. Rather, we addressed the specific issue before us—a frivolous filing by counsel paid under the legal aid scheme. Filings by other counsel were not at issue.

15. In addition, Rule 126 (G) may not be construed as limiting the court’s power to sanction counsel practicing before this Tribunal to assigned counsel. We first note that the Rule relates to the court’s inherent power to control its own proceedings.26 Article 21 of the Statute mandates the Chambers to take “strict measures to prevent any action that may cause unreasonable delay”. Article 28 authorizes the Judges to draft appropriate Rules to implement this mandate. Accordingly, Rule 126 (G) is one way of expressing a Chamber’s power to protect the integrity of its proceedings by imposing sanctions for dilatory or abusive tactics. Such tactics include the filing of submissions that are frivolous or are an abuse of process.27

16. Furthermore, while the wording of Rule 126 (G) could suggest that sanctions for the filing of frivolous or abusive submissions may only be imposed assigned counsel, the Rule does not have such effect. It merely recognizes the Tribunal’s obligation to ensure that taxpayer-funded public resources allocated to a Defence team under the legal aid scheme are not wasted on the production of frivolous or abusive motions. However, this does not mean that the court’s inherent powers to impose sanctions in response to such submissions do not extend to other counsel.

17. In this context, we recall the equivalent legal provisions at other international criminal tribunals. In particular, the rules of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Mechanism for International

26 See ICTY, Prosecutor v. Delalić et al., IT-96-21-A, Order on the Motion to Withdraw as Counsel Due to Conflict of Interest, 24 June 1999, p. 3 (considering for the International Criminal Tribunal for the former Yugoslavia “the inherent power which the Tribunal has, deriving from its judicial function and from the provisions of Articles 20 and 21 of its Statute, to control its proceedings in such a way as to ensure that justice is done and, particularly in relation to matters of practice, that the trial proceeds fairly and expeditiously”); see also Regulation 29 ICC Reg (empowering the Chamber to make any order to ensure compliance with the Regulations or court orders and clarifying that this is without prejudice to Chamber’s inherent powers).

27 In this regard, we reject counsel’s and the Head of Defence Office’s arguments raised elsewhere as to an alleged “chilling effect” of the Rule (Request, para. 15; HDO Observations, para. 4). The Presiding Judge denied leave with respect to this more general argument, which challenges the Rule as such (see Decision Granting Leave, para. 9). In any event, counsel’s freedom of expression and/or professional freedom and independence exist within the boundaries of counsel’s obligations as officers of the court. Freedom of expression cannot be the justification for filing motions that are frivolous or are an abuse of process.

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Criminal Tribunals make clear that sanctions for the filing of frivolous or abusive submissions may be imposed on all counsel.28 National jurisdictions also follow a similar approach.29 Rule 126 (G) therefore cannot be read as restricting the court’s powers by excluding sanctions for the filing of frivolous or abusive submissions by appointed counsel or by Prosecution counsel.30 The means for effecting those sanctions must naturally be different because these counsel are not remunerated through the legal aid scheme. For instance, appointed counsel are paid by the accused directly. Any sanction would therefore have to be tailored to the specific circumstances of each case.31

18. In sum, Rule 126 (G) is not discriminatory. Nor was our Decision. We reject the Defence arguments in this regard.

28 See Rule 73 (F) ICTR RPE (“[…] [A] Chamber may impose sanctions against Counsel if Counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof.”); Rule 46 (C) SCSL RPE (“Counsel who bring motions, or conduct other activities, that in the opinion of a Chamber are either frivolous or constitute abuse of process may be sanctioned for those actions as the Chamber may direct. Sanctions may include fines upon counsel; non-payment, in whole or in part, of fees associated with the motion or its costs, or such other sanctions as the Chamber may direct.”); Rule 73 (D) SCSL RPE (“[…] [W]hen a Chamber finds that a motion is frivolous or is an abuse of process, the Registrar shall withhold payment of all or part of the fees associated with the production of that motion and/or costs thereof.”); Rule 80 (D) MICT RPE (“[…] [A] Trial Chamber may impose sanctions against Counsel if Counsel brings a motion, including a preliminary motion, that, in the opinion of the Trial Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof.”); but see Rule 73 (D) ICTY RPE (“[…] [W]hen a Chamber finds that a motion is frivolous or is an abuse of process, the Registrar shall withhold payment of fees associated with the production of that motion and/or costs thereof.”) The previous version of the ICTY Rule, contained then in Rule 46 (C), was identical to the current wording of the ICTR Rule (see Rule 46 (C) ICTY RPE until 28 July 2004).

29 See, e.g., Criminal Procedure Code, 18 U.S.C. § 3162 (United States).

30 Cf. ICC, Prosecutor v. Kenyatta, ICC-01/09-02/11, Decision on the Defence application concerning professional ethics applicable to prosecution lawyers, 31 May 2013, para. 16 (holding, based on the Chamber’s inherent powers, that the court’s code of conduct applicable to Defence lawyers should “where applicable and to the extent possible, also apply to members of the Prosecution”).

31 See ICTY, Prosecutor v. Šešelj, IT-03-67-PT, Decision on Motion for Disqualification, 10 June 2003, para. 5 (holding with respect to a self-represented accused that while the sanction of withholding fees could not be applied to him, the court could impose other sanctions such as the refusal to accept a filing at all); cf. ICTY, Prosecutor v. Stakić, IT-97-24-AR73.4, Decision on the Prosecution Motion Seeking Leave to Appeal the Decision of Trial Chamber II Ordering an Identification Parade, 28 June 2002, p. 3 (finding a Prosecution application “frivolous”). Both ICTY decisions were based on the wording of the relevant Rule then in force (see above fn. 28).

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B. Whether counsel had a right to be heard

19. Counsel further attack Rule 126 (G) because it provides for the withholding of their fees without affording them an opportunity to be heard.32 However, as noted above, the Decision was based on our inherent power to control the proceedings before us and in particular, to prevent the filing of applications that we find devoid of any merit. In this respect, the Decision was ancillary to our ruling on the merits of the Defence application.33 Counsel have not demonstrated that there is an obligation on the part of the Chamber to hear from them before making such a finding.

20. As pointed out by the Presiding Judge, the Defence has not challenged our finding that their application was frivolous.34 The Defence now argues that “if it had been heard beforehand, it would have naturally challenged that characterisation and that is precisely the matter of the principle which is raised”.35 However, counsel ignore that the Appeals Chamber’s order was based on its own determination that the application submitted by the Defence was not simply unpersuasive on the merits but also frivolous. It would be pointless for the Chamber to hear counsel on whether they consider that their submission is frivolous or not. This question is inextricably linked to the merits of the submission, on which the Chamber has already decided. To hear counsel would therefore merely reopen consideration on the application itself. The same applies to the sanction imposed as a consequence. Counsel are a fortiori not entitled to be heard on this issue.

21. The Head of Defence Office refers to Rules 57 (H) and 60 of the Rules, arguing that because these Rules provide counsel with a right to be heard before certain measures against them are taken, the same must apply to Rule 126 (G).36 We disagree. These Rules address different matters that go generally to the performance


33 See ICTR, Prosecutor v. Karemera et al., ICTR-98-44-PT, Decision on Joseph Nzirorera’s Motion for Order Finding Prior Decisions to be of “No Effect”, 24 May 2005, para. 12 (“The sanctions orders are not substantive. They are merely ancillary or consequential to the substantive motions. They reflect the conclusion by the Trial Chamber that bringing those motions was frivolous or was an abuse of process.”)

34 Decision Granting Leave, para. 6.


36 HDO Observations, paras 5-7.

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or conduct of counsel as such. To be able to evaluate alleged issues of performance or conduct covered by these Rules, decision-makers would generally need information that is not already before them. However, Rule 126 (G) deals with specific filings. As explained above, in such instances, everything relevant to the Chamber’s decision—the filing(s)—is already before it.

22. In sum, counsel have no right to be heard with respect to sanctions imposed under Rule 126 (G).

IV. Conclusion

23. We reject the Defence Request. Counsel have not shown an error in our Decision resulting in prejudice to them. On a more general note, we stress that we have not taken our decision to impose the sanction lightly.37 When warranted, as in this case, such sanctions are necessary to safeguard the fair and expeditious conduct of our proceedings.

37 See, e.g., ICTR, Prosecutor v. Kanyarukiga, ICTR-2002-78-R11bis, Decision on Request to Admit Additional Evidence of 1 August 2008, 1 September 2008, para. 12 (recalling that “the power to impose sanctions should be exercised cautiously”); see also ICTR, Karera v. The Prosecutor, ICTR-01-74-A, Decision on the Appellant’s Request to Admit Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 29 October 2008, para. 14; ICTR, Karemera et al. v. The Prosecutor, ICTR-98-44-AR73.15, Decision on Joseph Nzirorera’s Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding Judge’s Written Assessment of a Member of the Prosecution Team, 5 May 2009, para. 21.

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DISPOSITION

FOR THESE REASONS;

THE APPEALS CHAMBER, deciding unanimously;

DISMISSES the Request.


Dated 10 December 2013 Leidschendam, the Netherlands

Judge Ralph Riachy Presiding



Title: Redacted Version of the Corrected Version of the Pre-Trial Judge’s Report Prepared pursuant to Rule 95(A) of the Rules of Procedure and Evidence

Short title: Pre-Trial Report PTJ

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255

THE PRE-TRIAL JUDGE


Before: Mr Daniel Fransen


Date: 11 December 2013



THE PROSECUTOR v.



REDACTED VERSION OF THE CORRECTED VERSION OF THE PRE-TRIAL JUDGE’S REPORT PREPARED PURSUANT TO

RULE 95 (A) OF THE RULES OF PROCEDURE AND EVIDENCE

Trial Chamber Counsel for Mr Salim Jamil Ayyash: Mr Eugene O’Sullivan






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Pre-Trial Report PTJ

Table of contents

I. Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

II. The jurisdiction of the Pre-Trial Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

III. The principal stages of the proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

IV. Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

B. Ordinary meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

C. The context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

D. Object and purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

E. In conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

V. Analysis of the case file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

B. The Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2681. Mr Ayyash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2692. Mr Badreddine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2713. Mr Oneissi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2744. Mr Sabra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275

C. Description of the phone networks and the attribution of the phones . . . . . 2771. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2772. The phone networks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2783. Attribution of the phones to the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

D. Activities prior to the attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2941. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2942. Observation and surveillance activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2953. Activities related to the false claim of responsibility . . . . . . . . . . . . . . . . . . . 2984. The purchase of the vehicle used to carry out the attack . . . . . . . . . . . . . . . 301

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E. The attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3031. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3032. How the attack unfolded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

F. Activities after the attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308

G. The existence of a consistent pattern of conduct . . . . . . . . . . . . . . . . . . . . . . . . . 3121. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3122. The attacks carried out against [REDACTED] . . . . . . . . . . . . . . . . . . . . . . . 3133. The attacks carried out in Kuwait . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

H. The victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3171. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3172. Mr Hariri and the other victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317

VI. Concluding observations regarding the witness lists. . . . . . . . . . . . . . . . . . . . . . 320A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320B. The Prosecution Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3211. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3212. The forensic and criminalistic reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3233. Attribution and use of telephones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3244. The Accused and Mr Merhi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3255. Mr Hariri himself and the Lebanese context . . . . . . . . . . . . . . . . . . . . . . . . . . 3266. The Mitsubishi vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3277. CCTV cameras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3278. Mr Abu Adass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3279. The false claim of responsibility for the attack . . . . . . . . . . . . . . . . . . . . . . . . 32710. The victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32811. The “consistent pattern of of conduct” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32812. The residual category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328

C. The lists of the Legal Representative of Victims . . . . . . . . . . . . . . . . . . . . . . . . . . 3291. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3292. The list of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3293. The exhibit list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

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I. Preamble

1. This report has been prepared in accordance with Rule 95 (A) (vi) of the Rules of Procedure and Evidence (respectively the “Report” and the “Rules”) in the context of the case of Ayyash et al. in which Messrs Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hassan Sabra (the “Accused”) were indicted for their alleged involvement in the attack1 which resulted in the death of Mr Rafic Hariri and others and injured other persons (the “attack”).

2. After recalling the provisions on which his jurisdiction is based (II) and the principal stages of the proceedings (III), the Pre-Trial Judge will define the legal conditions relating to the preparation of the Report (IV). He will then analyse the facts of the case in light of the Prosecution’s pre-trial brief of 23 August 2013 (the “Prosecution’s Brief”),2 the exhibits submitted in support thereof and the pre-trial briefs of counsel for the defence (the “Defence” or “Counsel for the Defence”) for Mr Salim Jamil Ayyash of 6 September 2013 (the “Ayyash Brief”),3 for Mr Mustafa Amine Badreddine of 6 September 2013 (the “Badreddine Brief”),4 for Mr Hussein Hassan Oneissi of 6 September 2013 (the “Oneissi Brief”)5 and for Mr Assad Hassan Sabra of 5 September 2013 (the “Sabra Brief”)6 (V). The Pre-Trial Judge will conclude the Report with an analysis of the lists of witnesses the Prosecution and the Legal Representative of Victims (“LRV”) intend to call (VI).

3. The Report also contains 10 annexes, namely: a list of the decisions issued during the pre-trial phase (Annex A), a list of the correspondence exchanged in that context (Annex B), a table relating to the witnesses mentioned by the Prosecution

1 The term “attack” comes from Article 1 of the Statute. It bears no legal classification in the context of this Report.

2 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/PT/PTJ, Prosecution’s Updated Pre-Trial Brief, dated 23 August 2013, 23 August 2013. Any further reference to filings and decisions refers to this case number, unless otherwise indicated.

3 Updated Defence Pre-Trial Brief on Behalf of Mr Ayyash, 6 September 2013.

4 Updated Pre-Trial Brief Submitted by the Defence for Mr Mustafa Badreddine Pursuant to Rule 91 (I), 6 September 2013.

5 Second Pre-Trial Brief on behalf of the Defence for Mr Hussein Hassan Oneissi, 6 September 2013.

6 Updated Sabra Pre-Trial Brief, 5 September 2013.

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(Annex C), a list of outstanding requests that have been transferred to the Trial Chamber (Annex D), two lists of outstanding confidential and ex parte requests transferred to the Trial Chamber (Annexes E and F), a list of outstanding requests relating to issues under the exclusive jurisdiction of the Pre-Trial Judge (Annex G), a list of outstanding confidential and ex parte requests under the exclusive jurisdiction of the Pre-Trial Judge (Annex H), a list of ex parte documents placed under seal with limited distribution (Annex I) and a list of transcripts of meetings held pursuant to Rule 68 of the Rules (Annex J).

II. The jurisdiction of the Pre-Trial Judge

4. The Pre-Trial Judge has jurisdiction to prepare the Report and submit it to the Trial Chamber pursuant to Rule 95 (A) of the Rules. Upon receiving the file, consisting of the Report and other documents mentioned in Rule 95 (A) of the Rules, the Trial Chamber is seized of the case of Ayyash et al. in accordance with Rule 95 (B) of the Rules. As a consequence, starting from that time and with the exception of issues under his exclusive jurisdiction by virtue of the Rules, the Pre-Trial Judge is no longer seized of the case and has no jurisdiction to deal with both pending and future requests.

III. The principal stages of the proceedings

5. On 28 June 2011, the Pre-Trial Judge rendered a decision relating to the examination of the indictment of 10 June 2011 issued by the Prosecutor against the Accused (the “Indictment of 10 June 2011” and the “Confirmation Decision of 28 June 2011”). Following that decision, the Accused were indicted in relation to the attack carried out against Mr Hariri and other persons.7

7 STL, The Prosecutor v. Ayyash et al., Case No. STL-11-01/I/PTJ, Decision Relating to the Examination of the Indictment of 10 June 2011 Issued against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi & Mr Assad Hassan Sabra, confidential, 28 June 2011. A public redacted version dated the same day was filed on 16 August 2011. This decision confirms the counts contained in the Indictment of 10 June 2011, with the exception of the attempt to kill 231 other persons which does not fall under the constituent elements of a terrorist act but under those of intentional attempted homicide (cf. para. 53).

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6. On 19 July 2012, the Pre-Trial Judge set a tentative date for the start of trial proceedings of 25 March 2013.8

7. On 17 August 2012, the Prosecution sought leave to amend the Indictment of 10 June 2011.9

8. On 25 October 2012, the Pre-Trial Judge granted the request of 17 August 2012, subject to a number of amendments. He also invited the Prosecutor to file a new indictment incorporating those amendments.10

9. On 8 November 2012, the Prosecution filed an amended indictment adding two further amendments to those authorised by way of the decision of 25 October 2012.11

10. On 23 January 2013, the Defence requested that the trial date be postponed.12

11. On 6 February 2013, the Prosecution sought leave to amend the Indictment of 10 June 2011 (the “Indictment of 6 February 2013”).13

12. On 21 February 2013, the Pre-Trial Judge postponed the tentative date for the start of trial proceedings. He also sought the observations of the Prosecution and the Defence (the “Parties”) and of the LRV with regard to the setting of a new date.14

13. On 12 April 2013, the Pre-Trial Judge authorised the amendments to the Indictment of 10 June 2011 sought by the Prosecution on 8 November 2012 and on

8 Order Setting a Tentative Date for the Start of Trial Proceedings, 19 July 2012, Disposition.

9 Prosecution Request for Leave to Amend the Indictment Pursuant to Rule 71 (A) (ii), confidential, 17 August 2012.

10 Decision on the Prosecution Request of 17 August 2012 for Leave to File an Amended Indictment, 25 October 2012.

11 Filing of the Amended Indictment in Compliance with the Decision of 25 October 2012 & Request for Amended Arrest Warrants and Orders/Requests for Transfer and Detention, confidential, 8 November 2012.

12 Joint Defence Motion to Vacate Tentative Date for Start of Trial, confidential, 23 January 2013, with a public redacted version dated 24 January 2013.

13 Prosecution Request for Leave to Include Further Amendments to its Proposed Amended Indictment, 6 February 2013.

14 Decision relating to the Defence Motion to Vacate the Date for the Start of Trial, 21 February 2013.

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6 February 2013, and declared that the Indictment of 6 February 2013 annuls and replaces the Indictment of 10 June 2011.15

14. On 21 June 2013, the Prosecution sought leave of the Pre-Trial Judge for further amendments to the Indictment of 6 February 2013.16

15. On 5 July 2013, the Pre-Trial Judge ordered the Prosecutor and the Defence to submit respectively on 15 July 2013 and 15 August 2013 pre-trial briefs relating to the Indictment of 6 February 2013.17 He also requested the Defence to submit pre-trial briefs in compliance with the requirements of Rule 91 (I) of the Rules.

16. On 10 July 2013, the Prosecution filed a notice in which it proposed amendments with regard to its witness and exhibit lists.18 On 15 July 2013, it filed a corrigendum to this notice19 together with a corrected version.20 In the corrected notice, the Prosecution stated that it no longer intended to rely on 6,511 exhibits or on 68 witnesses appearing on its initial lists. In the main, the exhibits and witnesses that it wished to withdraw from the exhibit and witness lists were related to forensic analyses.

17. On 15 July 2013, in compliance with the decision of 5 July 2013, the Prosecution filed an updated pre-trial brief with new witness and exhibit lists pursuant to Rule 91 of the Rules.21

15 Decision relating to the Prosecution Requests of 8 November 2012 and 6 February 2013 for the Filing of an Amended Indictment, 12 April 2013.

16 Prosecution Further Request for Leave to Amend the Indictment, confidential, 21 June 2013. A public redacted version of this request was filed on 1 July 2013.

17 Decision on the Prosecution Motion entitled “Prosecution Motion Regarding the Defence Pre-Trial Briefs”, 5 July 2013.

18 Prosecution’s Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification, 10 July 2013.

19 Corrigendum to “Prosecution’s Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification” and to the Confidential Annex B, 15 July 2013.

20 Corrected Version of “Prosecution’s Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification,” filed on 10 July 2013, 15 July 2013.

21 Prosecution’s Submission Pursuant to Rule 91, confidential, 15 July 2013. In its submissions, the Prosecution sought authorisation to add three witnesses and 115 exhibits and to withdraw 37 exhibits in addition to those mentioned on 10 July 2013. Among the exhibits the Prosecution sought to withdraw are a number of reports

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18. On 31 July 2013, the Pre-Trial Judge authorised22 the amendments to the Indictment of 6 February 2013 sought by the Prosecution on 21 June 2013 (the “Indictment”).23

19. On 2 August 2013, the Pre-Trial Judge set a tentative date for the start of trial of 13 January 2014.24

20. On 5 August 2013, the Pre-Trial Judge authorised the amendments to the witness and exhibit lists sought by the Prosecution on 10 and 15 July 2013.25

21. On 7 August 2013, the Pre-Trial Judge changed the dates for the filing of the pre-trial briefs at the request of the Defence.26 He ordered the Prosecution pre-trial brief for 19 August 2013 and those of Counsel for the Defence for 2 September 2013.

22. On 12 August 2013, the Pre-Trial Judge submitted to the Trial Chamber in accordance with Rule 95 of the Rules a part of the case file which contained the exhibits filed by the Prosecution in the case of Ayyash et al. pursuant to Rule 91 of the Rules.27

which were filed as evidence in support of the Indictment of 10 June 2011. The three-part report on evidence relating to telephone communications exchanged between the individuals implicated in the attack mentioned in the Decision of 28 June 2011 is one of those reports.

22 Amended Version, Decision Relating to the Prosecution Request of 21 June 2013 for Leave to Amend the Indictment of 6 February 2013, confidential, 31 July 2013, with a public redacted version dated 2 August 2013.

23 Prosecution Further Request for Leave to Amend the Indictment, confidential, 21 June 2013. The request was officially filed with the Court Management Services Section on 21 June 2013, the date mentioned on the cover page. The Prosecutor however signed the request on 18 June 2013. The Prosecution filed a public redacted version of the request on 1 July 2013.

24 Order Setting a New Tentative Date for the Start of Trial Proceedings, 2 August 2013.

25 Decision on Two Prosecution Submissions in Relation to Amending the Prosecution Rule 91 Filings, 5 August 2013.

26 Order on the Defence Request for a Variance of the Deadline for Re-filing the Defence Pre-Trial Briefs, 7 August 2013.

27 Order on the Transfer of Part of the Case File to the Trial Chamber Pursuant to Rule 95 of the Rules, 12 August 2013.

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23. On 16 August 2013, the Pre-Trial Judge granted, at the request of the Prosecution,28 additional time to the Prosecution and Counsel for the Defence within which to file their pre-trial briefs.29

24. In compliance with the decision of 16 August 2013, the Prosecution’s Brief was filed on 23 August 2013, the Sabra Brief on 5 September 2013, and the Briefs of Messrs Ayyash, Badreddine and Oneissi were filed on 6 September 2013.

25. On 23 October 2013, at the request of the Pre-Trial Judge, the Prosecution filed an updated witness list.30

IV Applicable law

A. Introduction

26. Pursuant to Rule 95 (A) (vii) of the Rules, the Pre-Trial Judge shall submit to the Trial Chamber:

a detailed report setting out: (a) the arguments of the Parties and the victims participating in the proceedings on the facts and the applicable law; (b) the points of agreement and disagreement; (c) the probative material produced by each Party and by the victims participating in the proceedings; (d) a summary of his decisions and orders; (e) suggestions as to the number and relevance of both the witnesses to be called by the Prosecutor and the witnesses that the victims participating in the proceedings intend to request the Trial Chamber to call; and (f) the issues of fact and law that, in his view, are in contention [...].

27. Before starting with an analysis of the case file, the Pre-Trial Judge intends to define the concept of the “detailed report” mentioned in this text, together with the scope of his authority in the preparation thereof. In point of fact, although it sets out a list of items to be included in the Report, Rule 95 (A) (vii) of the Rules does not

28 Prosecution Request for Extension of Time to Comply with Order of 7 August 2013, confidential, 13 August 2013. A public redacted version was filed on the same day.

29 Decision on Prosecution Requests (1) for Leave to File Amended Material Supporting the Indictment Confirmed on 31 July 2013 and (2) for an Extension of Time in which to File its Updated Pre-Trial Brief, 16 August 2013.

30 Prosecution Submission Pursuant to Rule 91 (G) (ii) (f), Annex A, confidential, 23 October 2013.

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describe clearly the scope of the role of the Pre-Trial Judge in this matter, notably with regard to whether it allows an assessment to be made of the evidence submitted to him and whether conclusions may be drawn on the evidence contested by the Parties. In this respect, the exact meaning of the term “detailed report” must be determined in light of the general principles for the interpretation of the provisions of the Rules. As such, Rule 3 of the Rules provides that:

(A) The Rules shall be interpreted in a manner consonant with the spirit of the Statute and, in order of precedence, (i) the principles of interpretation laid down in customary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969), (ii) international standards on human rights (iii) the general principles of international criminal law and procedure, and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.

(B) Any ambiguity that has not been resolved in the manner provided for in paragraph (A) shall be resolved by the adoption of such interpretation as is considered to be the most favourable to any relevant suspect or accused in the circumstances then under consideration.

28. Therefore, in accordance with the provisions of the aforementioned Vienna Convention, the precise meaning of the term “detailed report” must be determined by taking account of its ordinary meaning (B), interpreted in the light of the context in which it appears (C), as well as the object and purpose of the Statute and of the Rules (D). It must also be determined in accordance with fundamental human rights, namely, in the case at hand, the right of the Accused to a fair and expeditious trial.

B. Ordinary meaning

29. The French version of Rule 95 (A) of the Rules stipulates that the submission of the complete case file must be accompanied by a “rapport détaillé”. The English version also uses the similar words of “detailed report”. According to their common legal definition, those terms encompass the statement of the facts of a case submitted by a judge – in this case, the Pre-Trial Judge – to another chamber – in this instance,

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the Trial Chamber – to facilitate its action – in these circumstances, the holding of a fair and expeditious trial.31

30. Furthermore, Rule 95 (A) (vii) of the Rules provides some details on the concept of the “detailed report” by listing the items it must contain. As such, points (a) to (d) of that provision refer to a series of items of an objective nature, including the arguments of the Parties, their points of agreement and disagreement, as well as the evidence they have gathered. Points (e) and (f) however require a more subjective analysis. Indeed, the first point refers to “indications” – “suggestions” in the English version– which the Pre-Trial Judge must provide as to the number of witnesses to be called and the relevance of their statements. The second one refers to issues of fact and law which “in his view” (the Pre-Trial Judge’s) – in the English text “in his view” – are in contention. Those two factors therefore call for an assessment on the part of the Pre-Trial Judge.

C. The context

31. The work involved in preparing the Report also requires that it be determined in the light of the context in which it is a part, namely within the framework of the general responsibilities conferred, by the Statute and the Rules, on the Pre-Trial Judge and likewise on the Trial Chamber. With this in mind, it should be recalled that the Pre-Trial Judge is an impartial and independent judge – not a member, therefore, of the trial bench32 – who is under an obligation, in accordance with Article 18 of the Statute, to take all necessary measures for “the preparation of a fair and expeditious trial”. Likewise, pursuant to Rule 89 (B) of the Rules, after the indictment has been confirmed, that judge takes “any measures necessary to prepare the case for a fair and expeditious trial”. These preparatory duties are closely linked to the responsibilities incumbent upon the Trial Chamber in accordance with Articles 20 and 21 of the Statute, namely to: (i) “confine the trial […] to an expeditious hearing of the issues raised by the charges […]”; (ii) “take strict measures to prevent any action that may cause unreasonable delay”; and (iii) examine the witnesses (unless circumstances

31 Cf. in this regard G. Cornu, Vocabulaire Juridique, Presses Universitaires de France, Paris, 1987, p. 760.

32 Article 8, para. 1 of the Statute.

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related to the interest of justice dictate otherwise). In point of fact, it is only if the Pre-Trial Judge takes all the necessary measures – including the preparation of a detailed report highlighting the key issues of the case file – that the Trial Chamber will be able, in turn, to carry out the tasks incumbent upon it relating to the management of the trial in an effective and fair manner.

32. Fulfilling the role of preparing for trial, and more specifically, the preparation of the Report, must however be tempered by the fact that, as the President of the Tribunal points out in his Explanatory Memorandum to the Rules, the Pre-Trial Judge cannot be compared to an investigating judge called upon to gather evidence.33 Indeed, apart from in exceptional circumstances,34 that responsibility lies with the Prosecution and the Defence, and even the LRV. With this in mind, the preparation of the Report is, by definition, conditional on and limited by the investigative and analytical work of the Parties as reflected in their Briefs and represented in the exhibits submitted in support thereof. Consequently, the more the Prosecution and Defence Briefs are developed and supported by exhibits, the more detailed the Report itself may be and it will thus provide the judges of the Trial Chamber with clear suggestions that might assist them in the conduct of the trial.

33. Lastly, the preparation of the Report falls into a different context to that of the confirmation of the charges with regard to the Accused or the determination of their guilt or otherwise at the end of the proceedings on the merits. Indeed, it is not a question of determining whether there is sufficient evidence to demonstrate that a suspect committed a crime falling under the jurisdiction of the Tribunal, or of whether there is evidence which may convince the Trial Chamber of the guilt of an accused beyond reasonable doubt. Likewise, it is not a question of assessing, as such, the evidence gathered by the Parties, but of simply making suggestions that might facilitate the Trial Chamber’s work with regard to the conduct of the trial and the judgement. Those suggestions do not encroach upon on the sovereign power of that

33 Explanatory Memorandum by the President of the Tribunal, Rules of Procedure and Evidence, 12 April 2012, para. 11.

34 Rule 92 of the Rules.

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chamber to admit and consider evidence or on the right of the Parties to challenge that evidence during the trial.

D. Object and purpose

34. The preparation of the file and, in particular, the transmission, before the start of the proceedings, of the evidence contained therein to the Trial Chamber is aimed at ensuring that the proceedings are not unduly delayed and are conducted in a fair and equitable manner. It is also in this spirit that the notion of preparing a detailed report was conceived. As previously pointed out, its purpose is to allow the Trial Chamber, on the basis of the conclusions drawn by the Pre-Trial Judge, to be better placed to understand the issues at stake, to direct the proceedings between the Parties, and exercise effective control over the conduct thereof. In producing the Report – which is essentially based on the Briefs of the Parties – the Pre-Trial Judge must ensure however that his actions accord with the rights of the Accused. However, although, pursuant to Rule 91 (I) of the Rules, the briefs must indicate: “(i) in general terms, the nature of the accused’s defence; (ii) the matters which the accused disputes in the Prosecutor’s pre-trial brief; and (iii) in the case of each matter set out pursuant to paragraph (ii), the reason why the accused disputes it”, the Defence Briefs are, in essence, often succinct. In point of fact, the investigations conducted by Counsel for the Defence have generally not ended at the time of submitting their Briefs. Furthermore, those counsel are not required to disclose their overall strategy at that preliminary stage of the proceedings. These factors are therefore some of the limits and constraints confronting the Pre-Trial Judge in his task of assessing the number of witnesses to appear, the relevance of their testimony, the contentious issues of law and fact and, more generally, in the preparation of his Report.

E. In conclusion

35. It follows from the above that the Report is an analysis of the case of Ayyash et al. conducted by the Pre-Trial Judge and based primarily on the Prosecution’s Brief, the Defence Briefs, the LRV Brief, and the evidence presented in support of those briefs as submitted to him. The degree of specificity of that analysis, which is

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intended to facilitate the holding of a fair and expeditious trial by the Trial Chamber, is therefore determined by those briefs and the evidence.

V. Analysis of the case file

A. Introduction

36. By way of introduction, the Pre-Trial Judge points out that in the Confirmation Decision of 28 June 2011 he had made some observations regarding the Indictment of 10 June 2011, a number of which are still valid, notably those relating to the circumstantial evidence35 or the motive(s) for the attack.36

37. After analysing the personal information relating to the Accused (B), the Pre-Trial Judge will examine successively the following factors: the description of the phone networks and the attribution of the phones (C), the activities prior to the attack (D), the attack (E), the activities after the attack (F), the existence of a consistent pattern of conduct (G) and the issues raised due to the participation of the victims (H). In an effort to maintain objectivity, the Pre-Trial Judge will examine separately, for each of those points, the allegations of the Parties and his consideration of the issues raised by the Parties. Those issues are the points that the Pre-Trial Judge wished to highlight. They cannot be considered as the only ones arising in the context of every topic addressed.

B. The Accused

38. This section relates to the personal information concerning successively Messrs Ayyash (1), Badreddine (2), Oneissi (3) and Sabra (4).

35 Confirmation Decision of 28 June 2011, para. 37.

36 Id., para. 96.

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1. Mr Ayyash

The allegations of the Parties

39. The Prosecution provides two types of information concerning the identity of Mr Ayyash: biographical data, and information relating to his religious and political affiliations.37

40. With regard to the biographical data, based on a copy of the official civil register,38 the Prosecution states that Mr Ayyash was born on 10 November 1963 in Harouf, Lebanon, and that he is the son of Mr Jamil Dakhil Ayyash and Mrs Mahasen Issa Salameh. Furthermore, according to a copy of the application form for an identity card – which should be filed as an exhibit [REDACTED] PRH53939 – Mr Ayyash is a Lebanese citizen with civil registration number 197/Harouf. In addition, according to an extract of the statement of Witness PRH395 – [REDACTED] – Mr Ayyash holds a travel document for the Hajj, the pilgrimage to Mecca, number 059386.40 Furthermore, a payslip, which should be filed as an exhibit by Witness PRH391 – [REDACTED] – would make it possible to establish that Mr Ayyash’s social security number is 63/690790.41 The Ayyash Defence considers that, in the absence of the accused, it is not in a position to confirm the biographical data provided by the Prosecution.42

41. With regard to the religious and political affiliations of Mr Ayyash, the Prosecution states that he is a Shiite Muslim and a supporter43 of Hezbollah.44 The

37 Prosecution’s Brief, para. 16.

38 R91-801004.

39 R91-801136.

40 R91-801134.

41 R91-100615. That information is confirmed by exhibit R91-801122.

42 Ayyash Brief, para. 12.

43 The Prosecution uses the term “supporter of Hezbollah” in the English version, the original language of the documents, of the Indictment (para. 49) and the Prosecution’s Brief (paras 10, 12, 16, 17, 18). However in their French version, the documents speak of “sympathisant du Hezbollah” and of “partisan du Hezbollah” respectively. In order to keep to the terms used in the Indictment, this Report will use the term “sympathisant du Hezbollah”.


270


Defence contests these allegations. It states in this regard that the exhibits submitted by the Prosecution fail to prove this beyond reasonable doubt.45

The observations of the Pre-Trial Judge

42. The Pre-Trial Judge identifies the following two issues regarding the identity of Mr Ayyash:

- the information relating to Mr Ayyash is rather succinct.46 For example, there is very little information as to his professional activities; and

- with regard to Mr Ayyash’s religious and political affiliations, the Prosecution relies on various documents to support the fact that he is a Shiite Muslim and a supporter of Hezbollah. They are, in particular, the statements of: (i) Witness PRH385 – [REDACTED];47 (ii) one of the [REDACTED] of PRH385 [REDACTED]; (iii) Witness PRH112, who states that he is unable to testify as to which political party Mr Ayyash might be affiliated to, while presuming he is a supporter of Hezbollah because he is a Shiite;48 (iv) Witness PRH096 – [REDACTED] – who believes that Mr Ayyash is politically associated with Hezbollah, [REDACTED];49 together with (v), an extract from a publication on Hezbollah,50 which does not contain any information regarding Mr Ayyash [REDACTED]. It also relies on: (i) the statement of the aforementioned Witness PRH385, [REDACTED], 51 and (ii) a letter [REDACTED].52 [REDACTED].

45 Ibid.


47 R91-100318.

48 R91-100319.

49 R91-801070.

50 R91-801766, “New Introduction Hizbullah The Story from Within” by Naim Qassem, pp. 60217343-60217344.

51 R-91-801112; R91-100391.

52 R91-801143.

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2. Mr Badreddine


43. The Prosecution provides two types of information concerning the identity of Mr Badreddine: biographical data, and evidence relating to his religious and political affiliations.53

44. With regard to the biographical data, the Prosecution states that Mr Badreddine was born on 6 April 1961 in Beirut, Lebanon, and that he is the son of Mr Amine Badreddine and Mrs Fatima Jezeini. Mr Badreddine is a Lebanese citizen with civil registration number 341/Al-Ghbeiry. In support of that allegation, the Prosecution adduces the birth certificate of Mr Badreddine, two marriage certificates, the Lebanese civil register54 and an application he made to the American University of Beirut.55 To establish that Mr Badreddine is a Shiite Muslim and supporter of Hezbollah,56 the Prosecution also relies on those documents57 and on the statement of Witness PRH329,58 who apparently stated that Mr Badreddine was an active member of Hezbollah and had been imprisoned in Kuwait for political reasons.59 Furthermore, the Prosecution alleges that Mr Badreddine uses several aliases including “Safi Badr”, “Sami Issa” and “Elias Fouad Saab”.60 Witness PRH577 – [REDACTED] – is expected to testify on the subject. In addition, several testimonies [REDACTED] are expected to be called upon in this respect, including those of witnesses PRH273,61

53 Prosecution’s Brief, para. 10

54 R91-801010. The Pre-Trial Judge notes that this exhibit is not linked to a witness.

55 R91-801008, p. 60230562. The Pre-Trial Judge notes that this exhibit is not linked to a witness.


57 R91-801008 p. 60230562; R91-801010.

58 R91-801009.

59 R91-801009, p. 60236244. Cf. also p. 60236245.


61 R91-300094, pp. 60228566-6022857.

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PRH243,62 PRH244,63 PRH089,64 PRH359,65 PRH531,66 PRH264,67 PRH423,68 PRH556,69 PRH470,70 PRH30671 and PRH523.72 The Prosecution relies notably on those testimonies, in addition to the fact that Mr Badreddine and Mr Sami Issa apparently share similar physical traits, personal characteristics and habits to conclude that those individuals are one and the same person.73 It also notes that Mr Badreddine and Mr Sami Issa shared the same faith and were affiliated politically to Hezbollah.74 With regard to the alias “Elias Fouad Saab”, the Prosecution alleges that Mr Badreddine was convicted under that name for attacks carried out in Kuwait.75 In order to conclude that Mr Badreddine and Mr Elias Fouad Saab are the same person, the Prosecution relies notably on [REDACTED],76 in addition to a judgment rendered by a court of that State which mentions the similarity of the physical traits of those two individuals.77

45. The Defence challenges in general the allegations relating to the personal data for Mr Badreddine.78 It also questions the fact that he is supposedly a member of

62 R91-300193, transcript p. 4 and pp. 60223303-60223307.

63 R91-300195, paras 5-66; R91-801023, transcript, pp. 1-35.

64 R91-801024, transcript, p. 4.

65 R91-300257, pp. 60267198-60267202.

66 R91-801027, pp. 60229603-60229609.

67 R91-801025, pp. 60222600-60222605.

68 R91-801026, transcript, p. 11 and pp. 60228615-60228619.

69 R91-801028, pp. 60222483-60222492.

70 R91-300232, pp. 60254598-60254607.

71 R91-300093, pp. 60220462-60220475.

72 R91-300179.


74 Ibid.

75 Id., para. 15.

76 R91-300064.

77 R91-300595.

78 Badreddine Brief, Annex A confidential, p. 2.

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Hezbollah, that he acted under the cover of various aliases and that Mr Elias Fouad Saab committed attacks in Kuwait.79


46. The Pre-Trial Judge identifies the following six issues regarding the identity of Mr Badreddine:

- the Badreddine Defence fails to justify how the documents submitted by the Prosecution in relation to the physical characteristics of Mr Badreddine are not credible;

- the attribution of the aliases of “Safi Badr”, “Sami Issa” and “Elias Fouad Saab” to Mr Badreddine is crucial in order to determine his responsibility;

- the statement of Witness PRH329 seems particularly significant in order to establish that Mr Badreddine shared the same physical characteristics as Messrs Sami Issa and Elias Fouad Saab;

- the statement of Witness PRH273 seems particularly significant in order to establish that Sami Issa was an alias used by Mr Badreddine;

- the Prosecution seems to rely primarily on the statement of Witness PRH329 to support the argument that Mr Badreddine is a supporter of Hezbollah; moreover, all the evidence that goes to prove that Mr Sami Issa is a supporter of Hezbollah is only relevant if it is demonstrated that that name was one of the aliases used by Mr Badreddine; and

- the Badreddine Defence claims that Mr Elias Fouad Saab was not involved in terrorist activities in Kuwait despite [REDACTED] produced by the Prosecution in this regard.

79 Ibid.

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3. Mr Oneissi


47. The Prosecution provides two types of information regarding Mr Oneissi: biographical data, and information relating to his religious beliefs and political affiliation.80

48. With regard to the biographical data, the Prosecution states that Mr Oneissi was born on 11 February 1974 in Beirut, Lebanon, and that he is the son of Mr Hassan Oneissi (also known under the name of “Hassan Issa”) and Mrs Fatima Darwish. Mr Oneissi is a Lebanese citizen with civil registration number 7/Shhour. In support of these allegations, the Prosecution produces the identity card of Mr Oneissi, which is to be filed as evidence by Witness PRH468.81 It also relies on Mr Oneissi’s birth certificate, as well as birth, marriage and death certificates of members of his family.82 The Prosecution further draws on copies of judicial decisions issued by a civil court in Jouaiya to claim that, until January 2004, Mr Oneissi was called “Mr Issa” and that his name, as well as that of his children, changed on that date.83 With regard to the political affiliations of Mr Oneissi, the Prosecution claims that he is a supporter of Hezbollah and provides as proof a speech made by Mr Nasrallah, the Secretary General of Hezbollah, during which he claims that the Accused were “brothers in resistance”.84 Lastly, it relies on Mr Oneissi’s birth certificate to claim that he is a Shiite.85

49. The Oneissi Defence does not adopt a position specifically on the biographical, political and religious information cited by the Prosecution.86 It challenges in general


81 R91-300068.

82 R91-300006.

83 R91-300007.

84 R91-300056 p. 60223025.

85 R91-300006.


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the factual and legal allegations contained in the Prosecution’s Brief, arguing that they cannot be proved beyond reasonable doubt.87


The Pre-Trial Judge identifies the following two issues regarding the identity of Mr Oneissi:

- with the exception of Mr Oneissi’s identity card and birth certificate, the other evidence put forward by the Prosecution does not directly concern the accused, but members of his family; and

- with regard to the political affiliations of Mr Oneissi, the Prosecution relies on a general statement made during a press conference held after the indictment of the Accused and which does not specifically mention Mr Oneissi by name.

4. Mr Sabra


50. The Prosecution provides two types of information regarding the identity of Mr Sabra: biographical data, and evidence relating to his religious convictions and political affiliations.88

51. With regard to the biographical data, relying on a copy of the official civil register, the Prosecution states that Mr Sabra was born on 15 October 1976 in Beirut, Lebanon, and that he is the son of Mr Hassan Sabradi “Tahan” and Mrs Leila Saleh.89 Mr Sabra is a Lebanese citizen and his civil registration is 1339/Zqaq Al-Blat.90 With regard to Mr Sabra’s religious and political affiliations, the Prosecution claims that he is a Shiite Muslim and a supporter of Hezbollah.91 It relies in this respect on:

87 Oneissi Brief, paras 19 and 45.


89 Prosecution’s Brief, para. 18; R91-300006, p. 60210589.

90 R91-300006, p. 60210589.


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(i) the transcript of an interview with [REDACTED] – Witness PRH024 – and the related [REDACTED] notes;92 (ii) the transcript of an interview with [REDACTED] – Witness PRH106 – and the related [REDACTED] notes;93 and (iii) the statement of [REDACTED] – Witness PRH106.94 Furthermore, the civil register mentions that he is a Shiite Muslim.95

52. The Sabra Defence states that it does not intend to challenge either the age or the birthplace of Mr Sabra.96 It is of the opinion, however, that there is no credible evidence concerning the address attributed to Mr Sabra in the Indictment.97 The Sabra Defence does not explicitly mention the information relating to the religious affiliation of Mr Sabra.98 However, it does contest the allegations relating to his political affiliations.99 It notes in this regard that the Pre-Trial Judge has not confirmed the references made to Hezbollah in the decision of 28 June 2011 confirming the Indictment of 10 June 2011100 and that the Prosecution withdrew them at the time of the third amendment to the Indictment.101 According to the Sabra Defence, those references, which do not rely on evidence established beyond reasonable doubt, do not therefore form part of the Prosecution case.102


53. The Pre-Trial Judge identifies the following two issues regarding the identity of Mr Sabra:

92 R91-800969.

93 R91-800972.

94 R91-800966.

95 R91-300006, p. 60210589. The Pre-Trial Judge notes that this exhibit is not linked to a witness.

96 Sabra Brief, para. 5.

97 Ibid.


99 Id., paras 25-27.

100 Id., para. 25.

101 Ibid.

102 Id., para. 27.

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- the Prosecution does make reference to the fact that the accused is a supporter of Hezbollah not only in the Indictment,103 but also in its Brief.104 However, the Brief only provides a short summary of the personal data relating to Mr Sabra.105 For example, the Prosecution does not provide any information relating to his employment history or any specific details on his links to Hezbollah, as it did however for Mr Badreddine; and

- to conclude that Mr Sabra is a Shiite Muslim and a supporter of Hezbollah,106 the Prosecution relies on three witnesses who all state that they did not maintain close relations with him. Witness PRH024 [REDACTED]107 [REDACTED].108 Witness PRH106 states for his part that Mr Sabra is linked to Hezbollah, but does not know in what way.109 He does not provide any detail in this respect. Witness PRH079 claims that Mr Sabra is pro-Hezbollah [REDACTED].110 That witness adds that it is not easy to obtain detailed information on individuals who are members of Hezbollah.111

C. Description of the phone networks and the attribution of the phones

1. Introduction

54. This section deals with the issue of the various phone networks involved in the preparation and execution of the attack carried out against Mr Hariri (2) and the difficulties related to the attribution of the phones to the Accused (3).

103 Indictment, para. 49.

104 Prosecution’s Brief, paras 10, 16, 17 and 18.

105 Id., para. 18.

106 Ibid.

107 R91-800969.

108 Ibid.

109 R91-800966.

110 R91-800972.

111 Ibid.

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2. The phone networks

55. By way of introduction, it should be pointed out that the phone networks are links that the Prosecution has established based on similar characteristics between various mobile phones (activation periods, locations and times of use, modes of communication, etc.). Having established the existence of the networks, the Prosecution has drawn conclusions enabling it to identify the phone numbers of individuals who could be involved in the attack.


56. The Prosecution alleges that the Accused, together with others, used mobile phones, grouped together in four different networks, to perpetrate and execute the attack against Mr Hariri. For ease of presentation, the Prosecution has assigned colours to the four phone networks, namely:112 Red, Green, Blue and Yellow.113 According to the Prosecution, those phone networks shared two common features: firstly, they were used to carry out specific activities linked to the attack and, secondly, the vast majority of the calls coming from the phones in those networks were made to other phones belonging to the same network as part of those activities.114 To those four phone networks, a fifth group of phones should be added, consisting of Purple phones, personal mobile phones (PMPs) and sequential mobile phones (SMPs). PMPs are phones which do not belong to a group or to a network115 which were used personally by individuals involved in the case, over a long period of time, to contact a number of recipients, notably by sending text messages.116 SMPs are phones which were used successively with different phone lines, which means that each phone was used over several weeks or months, and then replaced by another one.

57. With regard to the Red Network, the Prosecution claims that it consisted of eight phones which communicated almost exclusively with each other during the


113 Prosecution’s Brief, para. 21; R91-200273.


115 ERN-60196228-60196753.

116 R91- 801452.

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preparation period and execution of the attack.117 Furthermore, the Prosecution points out that their users did not use Short Message Service (SMS).118 In addition, still according to the Prosecution, those phones were activated on 4 January 2005 and operated from 14 January 2005 until 14 February 2005, two minutes before the attack.119

58. To support these allegations, the Prosecution relies on two reports [REDACTED] – expert witness PRH147, [REDACTED] – entitled “Network Analysis Report: Red, Green, Blue and Yellow Phones” (the “Network Analysis Report”)120 and “Communications Evidence Concerning the Assassination of Rafik Hariri: Chronology Report” (the “Chronology Report”).121 The first describes in detail how the four phone networks involved in the attack functioned.122 The second one instead provides a detailed chronology of the relevant phone activity on those networks from 13 October 2004 to 16 February 2005. That analysis is based on sequential call tables, (known in English as “Call Sequence Tables”) (“CST”), as well as other reports and investigators’ notes.123 The CST provide data relating to a phone call including, in particular, the call number, the destination number, the date and time of the call, its duration and the cellular antennae that relayed it.124

59. Furthermore, the Prosecution relies on the Network Analysis Report to conclude that: (i) the phones belonging to the Red Network were activated on 4 January 2005, within 15 minutes of each other, in the Tripoli area;125 (ii) their accounts were topped up with additional credit within a 45 minute period in the

117 Prosecution’s Brief, para. 23; R91-200273, p. 41, paras 158-160.


119 Ibid.

120 R91-200273, p. 39, paras 151-156.

121 R91-200334, p. 156, paras 464 and 978-980.

122 R91-200273.

123 R91-200334, pp. 17-20.

124 ERN-60196228-60196753, p. 43.

125 R91-200273, p. 39, para. 152.

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Tripoli area on 2 February 2005;126 (iii) the users of the eight phones belonging to the Red Network exchanged handsets;127 and (iv) Mr Ayyash and the other members of the execution team for the attack used six of the phones belonging to the Red Network to communicate while preparing and carrying out the attack.128 Lastly, the Prosecution states that the acquisition of the phones belonging to the Red Network was effected by means of fraudulent identification documents. To arrive at this conclusion, the Prosecution relies on the report by [REDACTED] – Witness PRH528, [REDACTED] – entitled “Acquisition of SIM Cards Report” (the “Acquisition of SIM Cards Report”) (Subscriber Identity Module to a phone number),129 which itself is based on interviews with witnesses and on fraudulent documents used at the time the phones were acquired.130

60. With regard to the Green phone network, the Prosecution claims that this consisted of three phones which were used from at least 13 October 2004 until 14 February 2005 – approximately one hour before the attack – and which formed part of a group of 18 Green phones (deactivated in August 2005).131 According to the Prosecution, from 13 October 2004, the users of these phones communicated exclusively with each other and had no SMS use.132 These claims derive from the Network Analysis Report, which is based on the statement of [REDACTED] – Witness PRH064, [REDACTED] – the analysis of the CST, the Acquisition of SIM Cards Report, and the report by [REDACTED] – Witness PRH377, [REDACTED] – entitled “Examination of Red and Green Network Handset Usage Introduction”.133 The Prosecution further states that Mr Badreddine was in contact with Mr Ayyash

126 R91-200273, p. 39, para. 153.

127 R91-200273, p. 46, paras 176 and 180.

128 R91-200273.

129 R91-801461, p. 3, para.10.

130 R91-801461, pp. 4-10.

131 R91-200273, pp. 72-73.

132 Prosecution’s Brief, footnote 45; R91-200273, p. 73, para. 340; p. 76, para. 361; p. 78, para. 377; p. 80, para. 394.

133 R91-200273, pp. 72-75.

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and Mr Merhi134 using the Green Network to prepare and carry out the attack, as indicated in the Chronology Report,135 the reports by [REDACTED] – expert witness PRH230, [REDACTED] – entitled “Evidence of Telephone Attribution – Mustafa Amine Badreddine”136 and “Indictment Report Attribution of Phone Numbers to Hassan Habib Merhi”,137 in addition to a statement by [REDACTED] – Witness PRH435, an expert witness.138 Lastly, the Prosecution notes that the phones belonging to the Green Network were purchased by means of the fraudulent use of identity documents.139 To arrive at this conclusion, the Prosecution relies on the Acquisition of SIM Cards Report,140 which in turn is based on interviews with witnesses and on fraudulent documents used at the time of purchasing the phones.141

61. With regard to the Blue phone network, the Prosecution claims that it consisted of 18 phones used between 18 October 2004 and 1 October 2005. The Prosecution relies on the Network Analysis Report in order to conclude that: (i) the users of those phones communicated exclusively with each other and did not send or receive almost any texts; (ii) Mr Ayyash and the other members of the team responsible for carrying out the attack used six phones belonging to this network; and (iii) handsets were exchanged between the users of the phones in the Blue Network and the users of the phones belonging to the Yellow Network.142 Moreover, the Prosecution relies on the Chronology Report to claim that 15 phones belonging to the Blue Network were used for the preparations for the attack, including the surveillance of Mr Hariri between 18 October 2004 and 14 February 2005.143 Lastly, based on the Acquisition

134 The Prosecution identified Mr Merhi as being involved in the attack and he was indicted on 31 July 2013.

135 R91-200334.

136 R91-801452, p. 264.

137 ERN: D0327911-D0328017, pp. 48-72, paras 114-192.

138 ERN: D0327905-D0327910.

139 R91-801461, pp. 25-36.

140 Ibid.

141 Ibid.

142 R91-200273.

143 Prosecution’s Brief, paras 27-28; R91-200334.

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of SIM Cards Report, the Prosecution alleges that it was not possible to identify any of the purported subscribers to the Blue Network phones.144

62. With regard to the Yellow phone network, the Prosecution claims that it consisted of 18 phones put into service between 1999 and 2003 and which were active until at least 7 January 2005. According to the Prosecution, of those 18 phones, 13 were used between 1 September 2004 and 7 January 2005.145 To arrive at this conclusion, the Prosecution relies on the Network Analysis Report.146 Furthermore, the Prosecution bases itself on the Chronology Report to conclude that Mr Ayyash and three members of the team responsible for carrying out the attack used four of the phones from the Yellow Network in the course of the preparations for the attack.147 The Prosecution also relies on the Network Analysis Report to assert that: (i) the users of those four Yellow phones communicated almost exclusively with each other and did not send or receive hardly any texts;148 and (ii) the users of certain phones in this network used handsets which were also used by users of phones belonging to the Blue Network and two of the PMPs belonging to Mr Ayyash.149 In addition, relying on the report by [REDACTED] entitled “Evidence of Telephone Attribution – Salim Jamil Ayyash”, the Prosecution submits that one of the phone numbers from the Yellow Network subsequently became one of the PMPs of Mr Ayyash.150 Lastly, based on the Acquisition of SIM Cards Report, the Prosecution alleges that it was not possible to identify any of the purported subscribers to the Blue Network phones.151

63. With regard to the Purple phones, the Prosecution claims that it consisted of a group of three PMPs which were used from at least January 2003 until 16 February

144 Prosecution’s Brief, para. 28; R91-801461, pp. 10-25.


146 Ibid.




150 Prosecution’s Brief, para. 30; R91-801194, p. 76, paras 182, 185-186.


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2005.152 According to the Prosecution, Messrs Oneissi, Sabra and Merhi used these phones to communicate with each other at the time of the false claim of responsibility.153 To support these assertions, the Prosecution relies on the Chronology Report154 and on the reports by [REDACTED] entitled “Evidence of Telephone Attribution – Assad Hassan Sabra” and “Evidence of Telephone Attribution – Hussein Hassan Oneissi”.155 Those reports are based on data extracted from the CST, testimonies and documents. Furthermore, according to the Prosecution, the Acquisition of SIM Cards Report shows that that the individuals registered as the subscribers corresponding to Purple phone 095 and Purple 231 did not purchase either of those phones.156

64. With regard to the PMPs and SMPs, the Prosecution notes that in addition to Messrs Oneissi, Sabra and Merhi, whose Purple phones were PMPs, Messrs Badreddine and Ayyash also used PMPs as well as their network phones.157 Furthermore, to support these conclusions that Mr Ayyash used PMPs to contact Mr Merhi, the Prosecution relies on the Chronology Report, the reports by [REDACTED] entitled “Evidence of Telephone Attribution – Salim Jamil Ayyash”158 and “Indictment Report Attribution of Phone Numbers to Hassan Habib Merhi”.159 That report was compiled using information from phone data, witness statements, official documents, information from Hajj lists, and investigators’ notes, in addition to other documents. Lastly, the Prosecution claims that Mr Badreddine also used PMPs to contact his family and friends, as well as for professional purposes.160 He used nine SMPs between January 2003 and August 2006.161 Those allegations are based on the report by [REDACTED] entitled “Evidence of Telephone Attribution –


153 Id., para. 31.

154 R91-200334, pp. 68-367.

155 R91-801568, p. 3.



158 R91-801194.

159 ERN D0327911-D0328017, para. 43.


161 Ibid.

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Mustafa Amine Badreddine”,162 which relies on various contacts between the phone numbers attributed to Mr Badreddine and to persons [REDACTED], investigators’ notes, witness statements and other documents.163

65. For its part, the Defence contests in general the Prosecution allegations relating to the existence of the phone networks.164 As such, the Ayyash Defence refutes the fact that he used phones belonging to one of these purported groups.165 The Oneissi Defence is of the opinion that none of the allegations based on the phone data and the analysis thereof is established beyond reasonable doubt.166 It adds that, as a consequence, the existence of the group of three Purple phones is contested, as is the attribution of one of them to Mr Oneissi, in particular on the dates and at the locations alleged by the Prosecution.167 Based on the same reasoning, the Sabra Defence contests all the allegations relating to the existence of the Purple phones or a Purple Network.168 Indeed, in its view, those allegations are disputed on the grounds that they are unverified and incapable of proof beyond reasonable doubt, let alone of being deemed the only reasonable conclusion available.169 With regard to the Badreddine Defence, it challenges all the evidence presented by the Prosecution relating to the networks, and to their supposed involvement in the preparation and perpetration of the attack.170


66. Firstly, the identification of the various phone networks that might be involved in the preparation and perpetration of the attack and composed of phones

162 R91-801452.

163 R91-801452, p. 12, paras 22-23, pp. 22-24, para. 64 (b).

164 Ayyash Brief, para. 19; Badreddine Brief, para. 15 (vii) and confidential Annex A to the Badreddine Brief, pp.3-5, paras 21-30; Oneissi Brief, paras 22-24; Sabra Brief, paras 1 and 7.


166 Oneissi Brief, para. 23.

167 Oneissi Brief, para. 24


169 Ibid.

170 Badreddine Brief, confidential Annex A.

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communicating almost exclusively within each network is the cornerstone of the Prosecution’s theory concluding that Messrs Ayyash, Badreddine, Oneissi and Sabra bear responsibility for the attack. The evidence presented in support of both the existence and the analysis of those phone networks and the resulting debates are therefore of paramount importance to the outcome of the proceedings on the merits. In this regard, the Network Analysis Report, the Chronology Report, and the various reports by [REDACTED] relating to attribution are particularly relevant.

67. The Defence systematically rejects the existence of phone networks and denies the involvement of the Accused in those networks, considering that the evidence has not been proven beyond reasonable doubt. With the exception of Counsel for the Defence for Mr Badreddine, Counsel for the Defence do not identify the points in the Indictment that they rebut. Moreover, not one Counsel for the Defence sets forth in detail the reasons that would justify its position. Admittedly, at this stage of the proceedings, the Defence remains at liberty not to reveal the strategy it intends to adopt during the proceedings on the merits. That guarded approach however is not conducive to facilitating the Pre-Trial Judge’s assessment task which, as pointed out previously, depends on the submissions and the position of the Parties. Against this background, it can be difficult to identify the specific points in dispute between the Prosecution and the Defence and the issues at stake raised by those points, aside from determining the general challenges mentioned above.

3. Attribution of the phones to the Accused

68. By way of introduction, it should be mentioned that the attribution of one mobile phone to an individual consists in identifying the user of that phone. This section deals with the methodology used for the attribution of the phones (a), general considerations relating to the Accused (b), and the main issues raised by the attribution of the phones to the Accused (c).

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a. Methodology used


69. The Prosecution’s Brief relies on the report by [REDACTED] entitled “Evidence of Telephone Attribution – Mustafa Amine Badreddine”171 to explain how the various phones identified were attributed to the Accused. To do this, the Prosecution refers to the CST and to different techniques of phone attribution, which in turn are based on testimonies, documentary evidence, the analysis of SMS use and the frequently-called numbers, as well as the technique known as co-location positioning (in English “co-location”). That technique is explained below.172 Furthermore, the aforementioned report by [REDACTED] provides information concerning the mobile phone users’ locations and movements based on the CST relating to the use of those phones.173

70. Counsel for the Defence for Messrs Ayyash, Oneissi and Sabra contest in general the Prosecution’s allegations without referring to the techniques used by them. For its part, the Badreddine Defence refutes the validity of all the analysis techniques used by the Prosecution.174


71. The Pre-Trial Judge underlines the importance of the technical aspects relating to telephony in the context of this case and the need for the judges to have a thorough understanding of those aspects. In this regard, he reiterates the invitation addressed to the Trial Chamber to consider the possibility of appointing an expert with specialist knowledge who could advise it on technical issues relating to telephony in the Order of 12 August 2013 on the transfer of part of the case file to the Trial Chamber in accordance with Rule 95 of the Rules.175

171 R91-801452.

172 Cf. para. 72.

173 R91-800173.

174 Badreddine Brief, confidential Annex A, p. 5, paras 34-36.

175 Order relating to the Transfer of Part of the Case File to the Trial Chamber Pursuant to Rule 95 of the Rules, 12 August 2013, para. 24.

287


72. The report by [REDACTED] entitled “Evidence of Telephone Attribution – Mustafa Amine Badreddine” – on which the Prosecution’s Brief relies to describe the attribution techniques used – provides no details on those techniques. They are examined in the report by Witness PRH435, [REDACTED] – entitled “An Introduction to Cell Site Analysis as Applied to GSM Networks”.176 It follows from this that the important particulars relating to the attribution techniques, cited in support of paragraphs 34, 35 and 36 of the Prosecution’s Brief, do not appear as such in the report of [REDACTED].177

73. The report of [REDACTED] states that the term “co-location” refers to two (or more) mobile phones “[TRANSLATION] whose cell site analysis shows that they are situated in the same area and/or are travelling together, namely they travel over the same route over the same time period, such that the users of the mobile phones could be together”. According to that witness, it can also be demonstrated that those phones are used either by two different persons travelling together, or by a single person.178 [REDACTED] defines the cell site analysis as being the examination “[TRANSLATION] of the call data records relating to a particular mobile phone, on a specific date and time, in order to obtain an overview of the location and movements of the mobile phone in question”.179 He notes, in this respect, that this analysis “[TRANSLATION] is based essentially on a ‘visual presentation’ of the call data and that that operation involves the mapping of the cell site/cell usage by the mobile phones and the number of times where they were used by the mobile phone or phones.”180

176 R91-801452, para. 3, p. 7 which refers to the report by [REDACTED].

177 R91-800173.

178 R91-800173, p. 142, para. 10.4.9.1.1.1.

179 R91-800173, p. 108, para. 10.1.1.1.1.1.

180 R91-800173, p. 11, para. 10.3.2.1.1.1.

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b. General considerations relating to the Accused


74. The Prosecution’s Brief is based on the Network Analysis Report to establish that Messrs Ayyash and Badreddine together with others possessed and used several phones belonging to the various networks described in the previous section, as well as PMPs.181 The Prosecution subsequently submits, in table form, a compilation of the phones attributed to different persons – including the four Accused and Mr Merhi – during a “relevant period”, comprising all the relevant phones belonging to the Yellow, Blue, Green and Red Networks, the Purple phones and the PMPs and the SMPs.

75. That table, which also appears in the Indictment – and which does not provide specific reference182 – is based on a large volume of evidence: the Network Analysis Report, the reports by [REDACTED] entitled “Evidence of Telephone Attribution – Salim Jamil Ayyash”,183 “Evidence of Telephone Attribution – Mustafa Amine Badreddine”,184 “Evidence of Telephone Attribution – Assad Hassan Sabra”185 and “Evidence of Telephone Attribution – Hussein Hassan Oneissi”.186

76. As previously mentioned, the Defence contests the existence of the networks or the phone groups. The Oneissi Defence contests the existence of the group of three Purple phones,187 the Badreddine Defence, the existence of all the phone networks,188 the Ayyash Defence, the fact that the phones operated within networks189 and the

181 R91-200273.

182 It refers to parts of reports which are sometimes around 10 pages in length.

183 R91-801194.

184 R91-801452.

185 R91-801568.

186 R91-801738.


188 Badreddine Brief, confidential Annex A, paras 21-30.


289


Sabra Defence, all the allegations relating to the Purple phones – or to the group of Purple phones.190


77. The Pre-Trial Judge notes that:

- the allegation that Messrs Ayyash and Badreddine together with other persons had in their possession and used several phones belonging to different networks and PMPs is not supported by the information appearing in the reference made in the footnote of the Prosecution’s Brief concerning that point.191 That allegation therefore will have to be examined by the Trial Chamber in light of the whole of the Prosecution’s Brief and the supporting materials;

- the assumptions relating to the attribution of the phones to the Accused concerned presented in the Prosecution’s Brief are based on a pyramidal structure of information. In point of fact, the Network Analysis Report and the reports by [REDACTED] rely themselves on a set of evidence, some of which, in turn, is based on other materials; and

- the relevant period of attribution is not the same for all the phones mentioned in the summary table on pages 18 and 19 of the Prosecution’s Brief.

c. The individual attributions


78. The Prosecution attributes four PMPs to Mr Ayyash – the PMPs 165, 935, 091 and 170 – and four network phones – Yellow 294, Blue 233, Green 300 and Red 741. The Prosecution points out that the PMPs were attributed to him based on testimonies, documentary evidence, cell site analysis, characteristics of the phone contact which took place, and the technique of “co-location”. The latter technique was used to attribute some of the network phones to him. To support those


191 R91-200273, p. 5, para. 9 referring to para. 37 of the Prosecution’s Brief.

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claims, the Prosecution refers to the report by [REDACTED] entitled “Evidence of Telephone Attribution – Salim Jamil Ayyash”192 and to the report by [REDACTED] entitled “Demonstration of Single Person Use of Multiple Mobile Phones Using Cell Site Analysis Suspect 1”.193 For its part, the Ayyash Defence considers that the Prosecution has not proven beyond reasonable doubt that Mr Ayyash used any of the phones belonging to the aforementioned five groups194 nor the eight phones which have been attributed to him.195

79. The Prosecution attributes to Mr Badreddine and his alleged pseudonyms “Sami Issa” and “Safi Badr” two PMPs – PMPs 663 and 354 –, nine SMPs – including the SMPs 128 and 944 – and one Green phone – Green 023. To support these allegations, the Prosecution essentially relies on the report by [REDACTED] entitled “Evidence of Telephone Attribution – Mustafa Amine Badreddine”.196 That report is based on call data records, witness statements, analysis of SMS content, analysis of cell site use, persons contacted by those phones, documentary evidence, as well as material resulting from the analysis of the “co-location” of two or more phones. [REDACTED] points out that this report should be read in conjunction with that of [REDACTED], entitled, “Cell Site Analysis as Applied to GSM Networks”.197 The Prosecution also relies on the report by [REDACTED] entitled “Demonstration of Single Person Use of Multiple Mobile Phones Using Cell Site Analysis Suspect 2”198 in relation to the four phones attributed to Mr Badreddine. The analysis of the SMS messages relevant to Mr Badreddine is presented by [REDACTED] – witness “PRH236”, [REDACTED].199 The Prosecution also relies on specific documentary evidence, including information relating to a specific telephone number (“01833354”)

192 R91-801194.

193 R91-802651.


195 Id., para. 25.

196 R91-801452.

197 R91-800173.

198 R91-802650.

199 R91-801016.

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belonging to the [REDACTED] phone company,200 enrolment documents for the American University in Beirut for Sami Issa (as previously mentioned, one of Mr Badreddine’s alleged pseudonyms),201 and extracts relating to the judicial file of Elias Fouab (another alleged pseudonym of Mr Badreddine) who was allegedly convicted in Kuwait in 1983 for terrorist offences, as mentioned previously.202 However, the Badreddine Defence contests the attribution of the 12 phones to Mr Badreddine, as well as all the attributions in connection with the other Accused.203 The Badreddine Defence also contests the fact that Messrs Badreddine, Issa and Badr are the same person.204

80. The Prosecution attributes the phone Purple 095 to Mr Oneissi. To do so, it relies on testimonies, documentary evidence, phone contact characteristics (several family members and known associates as well as two other Purple phone users) and cell site analysis. In support of these claims, the Prosecution relies on a report by [REDACTED] entitled “Evidence of Telephone Attribution – Hussein Hassan Oneissi”.205 For its part, the Oneissi Defence considers that none of the allegations relating to the existence of a group of three Purple phones nor the attribution of the Purple phone 095 to Mr Oneissi has been established beyond reasonable doubt.206

81. The Prosecution attributes phone Purple 018 to Mr Sabra on the basis of the SMS and cell site analysis as well as the characteristics of its phone contacts. To support these claims, the Prosecution refers to the report by [REDACTED] entitled “Evidence of Telephone Attribution – Assad Hassan Sabra”.207 The Sabra Defence does not comment on the matter of the attribution of the phones to Mr Sabra.

200 R91-804366.

201 R91-801749.

202 R91-300052.

203 Badreddine Brief, para. 15 (vi).

204 Id., Confidential Annex A, pp. 2, 5, 6, paras 11-15 and 39-46.

205 R91-801738.

206 Oneissi Brief, paras 21 to 24.

207 R91-801568.

292


82. The Prosecution attributes to Mr Merhi phones Green 071 and Purple 231 and to the family of Mr Merhi the PMP 3686091. It states that the attribution of the Green 071 phone to Mr Merhi is based on its geographical profile and the technique of co-location. As regards the phone Purple 231, its attribution is based on its geographical profile, the characteristics of its phone contacts and the technique of co-location. In support of these claims, the Prosecution refers to the report by [REDACTED] entitled “Indictment Report Attribution of Phone numbers to Hassan Habib Merhi”208 and the note by [REDACTED] entitled “Single Person Use of 2 Mobiles-Suspect 3”.209 The Prosecution also relies on a number of call data records for the Green 071210 and Purple 231211 phones and the PMP 3686091,212 which were examined by [REDACTED] and included in support of the “Indictment report”.213 In addition, in order to attribute the PMP 3686091 to Mr Merhi, the Prosecution relies on particular documentary evidence and SMS analysis.

Observations of the Pre-Trial Judge

83. The Pre-Trial Judge makes the following four observations with respect to the aforementioned questions of individual attribution:

- the various reports mentioned previously have neither been examined nor taken into account during review of the different indictments because they were not produced as exhibits;

- the question of the attribution of the phones to the Accused is fundamental, as it forms the link between them and the phones, which, according to the Prosecution, were used by those responsible for the criminal activities relating to the attack;

208 ERN D0327911-D0328017.

209 ERN D0327905-D0327910.

210 R91-804322, D0317148-D0317156.

211 R91-804318, D0317027-D0317147.

212 ERN D0317492-D0317832.

213 ERN D0327911-D0328017.

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- that attribution does not rely on documentary evidence or on direct testimony, but on cross-analysis of a package of evidence and a process of logical deduction which the Oneissi Defence refers to as “circumstantial evidence”.214 That analysis is based on certain raw data, namely the call data records provided by the telephone companies which were operating during the time periods relevant to the attack. That data was analysed by the Prosecution in the light of other evidentiary materials – witness statements, documents or analysis of phone co-locations – and of a review of the cell site coverage. That review notably allowed the Prosecution to put forward the theory that a phone was used by a particular person during a given period of time; and

- the following points merit particular attention by the Trial Chamber: (i) the methodology employed by the Prosecution to analyse the telephone data, including the harvesting of the call data records, the co-location and the cell site coverage; (ii) the evidentiary materials gathered to attribute the various phones to the Accused, in particular the reports by [REDACTED] entitled “Evidence of Telephone Attribution – Salim Jamil Ayyash”,215 “Evidence of Telephone Attribution – Mustafa Amine Badreddine”,216 “Evidence of Telephone Attribution – Hussein Hassan Oneissi”,217 “Evidence of Telephone Attribution – Assad Hassan Sabra”,218 “Indictment Report Attribution of Phone numbers to Hassan Habib Merhi”,219 as well as the reports by [REDACTED] entitled “Cell Site Analysis as Applied to GSM Networks”,220 “Demonstration of Single Person Use of Multiple Mobile Phones Using Cell Site Analysis Suspect 1”,221 “Demonstration of Single Person Use of Multiple Mobile


215 R91-801194.

216 R91-801452.

217 R91-801738.

218 R91-801568.

219 ERN D0327911-D0328017.

220 R91-800173.

221 R91-802651.

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Phones Using Cell Site Analysis Suspect 2”222 and the note by [REDACTED] entitled “Single Person Use of 2 Mobiles-Suspect 3”.223

D. Activities prior to the attack

1. Introduction

84. This section, relating to the activities before the attack, deals with the observation and surveillance activities (2), the false claim of responsibility (3) and the purchase of the vehicle used to carry out the attack (4).

85. In general, the Prosecution alleges that Mr Badreddine monitored and, with Mr Ayyash, coordinated the observation of the key locations, the surveillance of Mr Hariri’s movements, and the purchase of the vehicle which was used as a vehicle-borne improvised explosive device to perpetrate the attack.224 In addition, according to the Prosecution, Messrs Oneissi and Sabra participated in the recruitment of Mr Abu Adass, who was allegedly used to make a false claim of responsibility for the attack.225 Mr Oneissi allegedly also participated in organising the disappearance of Mr Abu Adass.226 Lastly, the Prosecution submits that Mr Badreddine monitored and, together with Mr Merhi, coordinated the preparations for the false claim of responsibility.227

86. In support of these claims, and in particular those regarding the telephone communications between the persons implicated in the preparation of the attack, the Prosecution draws in the main on the Chronology Report.228 Moreover, in order to

222 R91-802650.

223 ERN D0327905-D0327910.


225 Ibid.

226 Ibid.

227 Ibid.

228 R91-200334: pp. 23-43; pp. 42-48, paras 77-98; pp. 59-66, paras 128-158; pp. 98-104, paras 260-280; pp. 124-130, paras 351-375; pp.150-151, paras 442-451; pp. 156-160, paras 263-475; pp. 161-164, paras 481-506; paras 512, 514 and 515; pp. 167-168, paras 516-523; pp. 169-171, paras 524-536; pp. 172-173, paras 537-545; pp. 174-177, paras 546-555; p. 183, paras 577-584; pp. 189-193, paras 595-606; pp. 203-213, paras 633-663;

295


determine the places and times where Mr Hariri was during the period in question, the Prosecution relies mainly on the statements by [REDACTED] – witness “PRH066” – [REDACTED].

87. Counsel for the Defence of Messrs Ayyash,229 Badreddine,230 Oneissi231 and Sabra232 challenge, in general, the Prosecution’s allegations regarding the activities prior to the attack and the Accused’s involvement in them.

2. Observation and surveillance activities


88. According to the Prosecution, from 20 October 2004 to 14 February 2005, Mr Ayyash, together with several unidentified persons, carried out extensive observation of key locations in preparation for the attack, such as Mr Hariri’s residences, Parliament, and the site of the attack itself.233 According to the Prosecution, Mr Ayyash, together with several unidentified persons, also conducted surveillance of Mr Hariri’s movements.234 To do so, Mr Ayyash, together with several unidentified persons, communicated on the Blue Network phones and, as of 15 January 2005, on the Red Network phones.235 In this respect, the Prosecution notes at least 50 days of surveillance between at the latest 20 October 2004 – the date Mr Hariri resigned as Prime Minister – and the day of the attack.236 According to the Prosecution, that surveillance enabled Messrs Badreddine and Ayyash, together with other persons, to determine the most suitable location and method for the attack. The Prosecution

pp. 217-221, paras 679-690; pp. 222-228, paras 692-714; pp. 251-266, paras 772-808; pp. 297-300, paras 809-829; and, generally, pp. 59-167 and pp. 113-346.

229 Ayyash Brief, p. 4-7.

230 Badreddine Brief, p. 4.

231 Oneissi Brief, pp. 10-13.

232 Sabra Brief, p. 9.


234 Ibid.

235 Ibid.

236 Ibid.

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also submits that Mr Ayyash was in frequent contact with Mr Badreddine throughout the whole observation period, namely: between 1 January and 14 February 2005, Mr Badreddine – using the phone Green 023 – was in contact 59 times with Mr Ayyash – who was using the phone Green 300.237 Lastly, the Prosecution states that during that same period, Mr Ayyash – using PMPs – was also in contact with Mr Merhi – who was using the phone Purple 231.238

89. In its Brief, the Prosecution sets out in detail the almost daily observation and surveillance activities from 20 October 2004 up to the day of the attack,239 which bring it to the conclusion of premeditated intentional homicide on the part of Messrs Ayyash and Badreddine.240

90. As mentioned previously, the Defence contests in general all the Prosecution’s allegations relating to the observation and surveillance activities that were allegedly conducted by the Accused. More specifically, the Ayyash Defence considers that the evidentiary materials provided by the Prosecution do not establish beyond reasonable doubt that: (i) a team responsible for perpetrating the assassination of Mr Hariri existed and that it was coordinated by Mr Ayyash;241 (ii) Messrs Badreddine and Ayyash coordinated the observation and surveillance activities;242 (iii) Mr Ayyash coordinated the preparation of the attack;243 and (iv) Mr Ayyash was in contact with Mr Merhi regarding the preparation of the attack.244

237 Id., para. 65.

238 Id., para. 66.

239 Id., paras 67-103.



242 Id., para. 21.

243 Id., para. 23.

244 Id., para. 24.

297


91. The Badreddine Defence also contests the fact that Mr Badreddine could have been implicated in the observation and surveillance activities245 and that he could have played a role in the preparation of the attack.246

92. The Oneissi Defence, as pointed out previously, observes that the charges brought against the Accused rely for the most part on circumstantial evidence247 and, in particular, that “the Prosecutor does not mention any of the alternative conclusions which might be reasonably drawn from the evidence on which he intends to rely.”248

93. Lastly, the Sabra Defence notes that the evidentiary materials submitted by the Prosecution do not allow the conclusion to be drawn, beyond reasonable doubt, that the allegations made by the Prosecution with regard to the complicity prior to the perpetration of the attack are founded.249


94. The Pre-Trial Judge reiterates his previous observations made in relation to the attribution of the phones. The Prosecution theory regarding the activities which preceded the perpetration of the attack relies, for the most part, on circumstantial evidence to support a process of logical deduction and inference. Thus, it is only through a comprehensive overview of that evidence that an opinion on the Prosecution’s contentions relating to the various stages of the attack can be formed, in particular with regard to the activities which led to its execution, as well as the Defence challenges in that regard.

245 Badreddine Brief, para. 15 (iii).

246 Id., para. 15 (iv).


248 Id., para. 18 (c).

249 Sabra Brief, paras 13 to 15.

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3. Activities related to the false claim of responsibility


95. According to the Prosecution, at the same time as the monitoring and surveillance activities for the perpetration of the attack, between 22 December 2004 and 17 January 2005, Messrs Oneissi and Sabra, together with Mr Merhi, recruited an individual – namely Mr Abu Adass – who was to be used to make a false claim of responsibility for the attack.250 This allegation is based mainly on the frequency of the communications between the Purple phones attributed to those persons, namely between Messrs Sabra and Merhi, Messrs Oneissi and Merhi, as well as between Messrs Sabra and Oneissi.251 Thus, according to the Prosecution, Messrs Oneissi and Sabra were in contact by their Purple phones 84 times between 12 January 2003 and 16 February 2005.252 Mr Sabra was in contact 212 times with Mr Merhi on the phone Purple 231 between 26 December 2002 and 14 February 2005, and Mr Oneissi 194 times with Mr Merhi on the phone Purple 231 between 25 June 2003 and 26 January 2005.253 Lastly, still according to the Prosecution, between 4 December 2003 and 6 February 2005, Mr Merhi, using the phone Purple 231, was in contact 32 times with Mr Ayyash using the PMPs 165, 935 and 091 and, in particular, seven times on the PMP 091 between 23 January 2005 and 6 February 2005.254

96. The Prosecution states that Mr Abu Adass is a Sunni Muslim of Palestinian origin who often attended the Arab University Mosque of Beirut. It was close to his home.255 According to the Prosecution, Mr Abu Adass disappeared on 16 February 2005.256 It cites several points which, in its view, attest to the fact that his disappearance was orchestrated by the Accused: [REDACTED].257

250 R91-200282, para. 12.


252 Ibid.

253 Ibid.

254 Ibid.

255 Id., paras 116 and 124.

256 Id., para. 124.

257 Id., para. 117.

299


97. Moreover, the Prosecution alleges that on 22, 29, 30 and 31 December 2004, as well as on 3 and 7 January 2005, Mr Oneissi was in the vicinity of the Arab University Mosque of Beirut.258 On two of those days, 22 December 2004 and 7 January 2005, Mr Oneissi – using the phone Purple 095 – was in contact with Mr Merhi using the phone Purple 231.259 Furthermore, on three of those days, 30 and 31 December 2004, as well as 7 January 2005, Mr Oneissi – using the phone Purple 095 – was in contact with Mr Sabra using the phone Purple 018.260 In addition, the Prosecution points out that according to the testimony of [REDACTED] – witness “PRH056” – Mr Oneissi introduced himself as “Mohammed” and met [REDACTED] at the mosque on the pretext that he wanted to learn how to pray.261 The two men met several times over the following days.262

98. The Prosecution also bases itself on the testimony of [REDACTED]263 – witness “PRH073” – [REDACTED].264

99. The Prosecution also submits that, [REDACTED].265 Still according to the Prosecution, on 16 January 2005, Mr Abu Adass left home to meet Mr Oneissi and has not been seen since.266 [REDACTED].267 [REDACTED].268

100. In addition, the Prosecution relies in particular on the Call Data Report269 to state that on 16 January 2005 – the day Mr Abu Adass disappeared – Messrs

258 Id., para. 118.

259 Ibid.

260 Ibid.

261 Id., para. 122.

262 Id., para. 123.

263 R91-100284, para. 76; R91-100329.


265 Id., para. 124.

266 Ibid.

267 R91-800075; R-91-800076; R91-800077.


269 R91-800075; R91-800076 and R91-800077.

300


Merhi and Badreddine were in contact five times between 06:19 and 19:00.270 The Prosecution notes an anomaly in the use of the phones on that date. Indeed, apart from one call by Mr Sabra at 00:03, none of the three Purple phones attributed to Messrs Oneissi, Sabra and Merhi was used.271 Although it does not expressly state such, the Prosecution implies that these three persons were together at that time and therefore did not need to phone each other.

101. The Ayyash Defence272 and the Badreddine Defence273 contest that Mr Ayyash and Mr Badreddine played any role in the false claim of responsibility and communicated with other persons in that respect. The Oneissi Defence considers in this regard that neither the presumed disappearance of Mr Abu Adass nor the alleged involvement of Messrs Oneissi, Sabra and Merhi in this are established, and even less that those are the only reasonable conclusions possible.274

102. Finally, the Sabra Defence submits that the allegations made regarding the activities which occurred prior to the attack taking place have not been established beyond reasonable doubt.275


103. The Pre-Trial Judge notes that:

- the interviews with [REDACTED] are particularly important in deciding as to his purported disappearance and the alleged roles of the Accused in the preparations relating to the false claim of responsibility; and

- the Prosecution’s Brief does not provide any specific information as to the role Mr Ayyash supposedly played in the preparations relating to the false claim of responsibility, apart from the fact that he and Mr Badreddine coordinated


271 Ibid.


273 Badreddine Brief, para. 15 (iv).

274 Oneissi Brief, paras 33 and 34.

275 Sabra Brief, paras 13 to 15.

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and monitored the observation and surveillance operations. Furthermore, the Prosecution accuses Messrs Sabra and Merhi, as well as Mr Oneissi, of having played a role in the recruitment of an individual to be used for their ends. The Prosecution also observes that only Mr Oneissi is held responsible for having “participated” in the actual disappearance of Mr Abu Adass.

4. The purchase of the vehicle used to carry out the attack


104. The Prosecution alleges that, while the observation and surveillance operations and the recruitment of Mr Abu Adass were at an advanced stage, Messrs Badreddine and Ayyash took steps to select and purchase a vehicle to serve as an improvised explosive device for the attack.276 Basing itself on the Chronology Report,277 the Prosecution then concludes that, on 11 January 2005, Mr Ayyash went to Tripoli where a vehicle, a Mitsubishi Canter van, was on show for sale.278 On that date, from that town, Mr Ayyash called Mr Badreddine twice on the Green Network.279 That same day, an unidentified user of the Blue Network who was in Tripoli – referred to by the pseudonym “S8” – called another user of that same network who was located in South Beirut – referred to by the pseudonym “S6” – who themselves contacted Mr Ayyash who, in turn, contacted Mr Badreddine.280 In addition, also on 11 January 2005, Mr Merhi called Mr Badreddine twice using the Green Network.281

105. According to the Prosecution, on 25 January 2005, while he was in Beirut, Mr Ayyash was in contact three times with S6 who was in the Tripoli area, and then he called Mr Badreddine.282 Then, S6 – using the phone Blue 610 – as well as another unidentified person – introducing themselves under false names, bought the


277 R91-200334, paras 442 to 451, 481 to 506 and 577 to 584.


279 Id., para. 107.

280 Ibid.

281 Ibid.

282 Id., para. 108.

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Mitsubishi Canter van.283 Fragments of that vehicle were found at the scene of the attack.284 The Prosecution also alleges that, during the negotiations for the purchase of that vehicle, S6 called Mr Ayyash.285 These circumstances lead the Prosecution to conclude that the purchase of the Mitsubishi van demonstrates the intent to use a large quantity of explosives, as well as the existence of an agreement between Messrs Ayyash and Badreddine to carry out the attack.286

106. For their part, the Ayyash Defence287 and the Badreddine Defence288 contest the fact that Messrs Ayyash and Badreddine coordinated or were involved in the purchase of the aforementioned vehicle.


107. The Pre-Trial Judge makes the two following observations:

- the activities surrounding the purchase of the vehicle are crucial in assessing whether a predetermined conspiracy existed with a view to carrying out the attack; and

- the Pre-Trial Judge observes that, in order to prove that the Mitsubishi Canter van was purchased on 25 January 2005, the Prosecution refers in its Brief to page 12 of a document referenced R91-200002 (ERN 60000510-60000511_D_EN) entitled “Information concerning the Mitsubishi Canter van [REDACTED]”. However, that document does not contain the page 12 referred to above. That page is in fact included in another exhibit referenced R91-200289 (ERN 60000486-60000676_D_EN). At first sight, it does not however allow the conclusion to be drawn that this vehicle was indeed purchased on 25 January 2005 specifically, but between 17 and 26 January 2005.

283 Ibid.


285 Ibid.

286 Id., para. 111.


288 Badreddine Brief, para. 15 (iv).

303


E. The attack

1. Introduction

108. This section deals with the manner in which the attack perpetrated against Mr Hariri took place. To demonstrate the involvement of the Accused in it, the Prosecution refers to various kinds of evidence, including telephone data, closed-circuit camera recordings and forensic analyses. The Defence in general refutes all of the Prosecution allegations in this regard.

2. How the attack unfolded


109. In order to come to the conclusion that the Accused bear responsibility for the attack, the Prosecution bases itself essentially on the analysis of the following elements: Mr Hariri’s movements, the use of the mobile phones by the members of the team involved in the commission of the attack, closed-circuit camera recordings and forensic expert reports.

110. With regard to Mr Hariri’s movements, the Prosecution refers mainly to three witness statements – witnesses “PRH291”, “PRH076” and “PRH009” – to conclude that: (i) the convoy was composed of six vehicles; (ii) in the first vehicle there were four members of the close protection team from the Internal Security Forces (“ISF”); (iii) Mr Hariri’s personal vehicle was armoured; (iv) Mr Hariri’s vehicle was followed by two vehicles equipped with jamming devices;289 (v) those devices were working on the day of the attack and had been turned on; and (vi) the operation of the jamming devices had been checked two days before the attack.290 In addition, the Prosecution cites the statement from witness “PRH017” to assert that Mr Hariri was at his residence, Quraitem Palace – where he had been present at several meetings – before leaving for Parliament between 10:30 and 11:00.291 Mr Hariri appears to have

289 R91-602917, para. 37.


291 Prosecution’s Brief, para. 132; R91-200088, para. 48.

304


arrived there at 10:54.292 One hour later, at around 11:54, Mr Hariri appears to have left Parliament to go to the Café Place de l’Étoile and meet [REDACTED].293 At around 12:25, Mr Hariri left the café to speak for five minutes with [REDACTED] before going back inside the café.294 According to the Prosecution, at 12:49 Mr Hariri left the Café Place de l’Étoile and returned to his armoured car295 to go back to Quraitem Palace where he was expected for lunch. The convoy took the road passing along the seafront.296 The jamming devices in the vehicles making up the convoy were working when Mr Hariri left Parliament.297

111. In relation to the analysis of the telephone data, the Prosecution draws a number of conclusions from the locations and times when a number of phone calls were made in respect of the responsibility of Messrs Badreddine and Ayyash, as well as of a number of Red Network users. The Prosecution states in particular that “Ayyash and the other members of the Assassination Team positioned themselves in locations where they were able to track and observe Hariri’s convoy at Quraitem Palace, Parliament, and his return as far as the area of the St. Georges Hotel, enabling them to execute the attack”.298 In order to do so, the Prosecution relies mainly on the Chronology Report. In particular, it shows that the analysis of the telephone data – combined with Mr Hariri’s movements described in the preceding paragraphs – reveal that:

- on the basis of the analysis of the data for the Blue Network phones, at 04:55 on 14 February 2005, the Assassination Team began operating in South Beirut, then moved to the vicinity of Parliament and the location of the attack;299

292 Prosecution’s Brief, para. 134; R91-200334, para. 962 (to be read in conjunction with paras 15 and 936 and table 160)


294 Prosecution’s Brief, para. 139; R91-200061, para. 21; R91-200087, para. 21.





299 Prosecution’s Brief, para. 131; R91-200334, paras 929-951.

305


- at 11:48, the members of the Assassination Team stopped using their Blue Network phones, changing to the Red Network, and were in the vicinity of Parliament, of the scene of the attack or on the route between those two locations.300 The Blue Network phones were no longer used that day until they were reactivated after the attack;301 and

- the users of the Red Network phones followed Mr Hariri’s movements, as the following evidence shows: (i) at 11:57, at the time when the Mitsubishi Canter van appears to leave the main road at the exit of the President Solaiman Franjiye tunnel, near the crime scene, Mr Ayyash received a call from S5; both of them were present in the area of the crime scene;302 (ii) between 12:00 and 12:16, 11 calls were made within the Red Network between members of the Assassination Team who were at locations between the scene of the attack and Parliament;303 (iii) at approximately 12:25, when Mr Hariri exited the Café Place de l’Étoile to speak with [REDACTED], S9 – located in the vicinity of Parliament – called S6 – located south-east of Parliament;304 (iv) when Mr Hariri left the Café Place de l’Étoile, the Red Network became active again, which, according to the Prosecution, means that all the members of that network were aware he was on the move;305 (v) at 12:53, S9 – located in the vicinity of Parliament – made the last Red Network call to S6 – who was not far away;306 (vi) Mr Ayyash contacted Mr Badreddine on the Green Network at 11:58, and that was the last time a Green Network phone was used;307 and (vii) Mr Badreddine’s telephone activities on all the phones attributed to him were unusual during this period.308

300 Prosecution’s Brief, para. 135; R91-200334, paras 945, 950.








308 Prosecution’s Brief, para. 137; R91-800098, CST-0201.

306


112. Furthermore, according to the Prosecution, recordings from closed-circuit cameras which were in the vicinity of the scene of the attack reveal that the Mitsubishi Canter van took the President Solaiman Franjiye tunnel309 at around 11:56, and, later, moved towards the St. Georges Hotel.310 Still according to the Prosecution, at 12:55, as Mr Hariri’s convoy was passing, the suicide bomber detonated the improvised explosive device that had been placed in the Mitsubishi van.311 According to the Prosecution, analysis of the size of the crater, the physical damage to the surrounding environment, including buildings and vehicles, shows that the quantity of explosives used was equivalent to 2500 kg to 3000 kg of TNT.312 Furthermore, according to the Prosecution, the attack had been very carefully prepared, as shown by the report by the [REDACTED] experts entitled “Interim Expert Report of EOD [REDACTED]” – respectively expert witnesses “PRH200”, “PRH201” and “PRH202”.313

113. With regard to the identity of the suicide bomber, the Prosecution states that it was an unidentified man, and that none of the samples of “biological materials” collected from the scene of the attack came from Mr Abu Adass.314

114. The Ayyash Defence emphasises that it has not been proven beyond reasonable doubt that Mr Ayyash coordinated the preparation of the attack.315 The Badreddine Defence contests in particular the modus operandi of the attack, namely the suicide attack and the fact that the explosives were contained in a Mitsubishi Canter van parked along the side of the road.316

115. As pointed out previously, the Oneissi Defence considers that none of the factual allegations can be established beyond reasonable doubt.317


310 Prosecution’s Brief, para. 142; R91-100050, paras 166-168.



313 R91-607107.



316 Badreddine Brief, para. 15 (ix), Confidential Annex A, p. 17.


307


116. Lastly, the Sabra Defence observes that the Prosecution does not implicate Mr Sabra in the preparations for the attack, nor in the attack itself, nor that he was aware of those preparations.318


117. The Pre-Trial Judge notes, first of all, that Defence Counsel do not support their statements as to the lack of responsibility of the Accused in the attack. He is therefore unable to draw any detailed conclusions as regards the Prosecution’s allegations in that respect. The Pre-Trial Judge nevertheless draws the attention of the Trial Chamber to the following points raised by the manner in which the aforementioned events unfolded:

- the times and the locations pertaining to Mr Hariri’s movements prior to the attack. Indeed, the Prosecution alleges that the telephone activities of the networks should be assessed in relation to those movements to which they are directly linked. The analysis of Mr Hariri’s movements requires a simultaneous and complex review of a large quantity of exhibits. A note by [REDACTED] – witness “PRH424”319 – is designed to aid that review;

- according to the Prosecution, at 11:58, Mr Badreddine was contacted on the phone Green 023 by Mr Ayyash, using the phone Green 300.320 The Prosecution nevertheless notes that, very unusually for Mr Badreddine, his phones were inactive for the three hours prior to that call.321 Moreover, the Prosecution points out that between 11:59 and 12:02, Mr Badreddine made calls to unidentified phones using SMP 944. In that regard, the Prosecution also observes that during the next two-and-a-half hours, Mr Badreddine neither made nor received any calls and only received a number of text messages, which was also highly unusual for him.322 These alleged anomalies


319 R91-200559.


321 Ibid.

322 Ibid.

308


merit clarification, especially given the fact that Mr Badreddine has been attributed with the major role of monitoring the attack through his contact with Mr Ayyash;323 and

- the Prosecution points out in its Brief that none of the samples of biological materials collected at the scene of the crime came from Mr Abu Adass.324 That statement should be assessed in the light of the Indictment which states that “[f]ragments of the suicide bomber were recovered at the scene and forensic examination has established both that the remains were: (a) of a male, and (b) not of Abu Adass. The identity of the suicide bomber remains unknown.”325 This second allegation therefore specifies that the attack was triggered by a man who was not Mr Abu Adass. It thus falls to the Trial Chamber to rule on the fact of whether, of the human remains found at the scene of the attack, any came from the alleged suicide bomber on the one hand and are not those of Mr Abu Adass on the other.

F. Activities after the attack


118. According to the Prosecution, the delivery of the videotape containing the alleged false claim of responsibility on behalf of a fictitious organisation named “Nusra and Jihad Group in Greater Syria”, finalised the attack against Mr Hariri. It allegedly proves the implication of Messrs Oneissi and Sabra in the conspiracy to commit a terrorist act. Indeed, the content of the videotape supposedly shows that they were aware of the crime committed against Mr Hariri and the means used to carry it out.326

119. To support those allegations, the Prosecution bases itself essentially on the information relating to the use of the Purple phones and of a phone card used only on

323 Id., para. 147.

324 Id., para. 145

325 Indictment, para. 43.


309


14 February 2005,on statements [REDACTED] relating to the claim of responsibility for the attack [REDACTED], as well as on the content of the videotape itself.

120. In its review of the activities relating to the false claim of responsibility for the attack, the Prosecution refers to the statement by [REDACTED], witness “PRH048”. [REDACTED] the phone card number 616569327 which was allegedly used to claim responsibility for the attack.

121. According to the Chronology Report, that phone card was allegedly used on 14 February 2005 to make four calls to two press agencies, from four different payphones located in Beirut. One call was made to the Reuters news agency, the three others to Al-Jazeera.328 According to the CST, that same day, by way of their Purple phone, Messrs Oneissi and Sabra contacted each other five times, while Messrs Sabra and Merhi called each other seven times.329

122. According to the Chronology Report330 and based on the location of Messrs Oneissi and Sabra in relation to the user of the phone card number “616569”, the Prosecution concludes that: (i) the first two calls to the Reuters agency and to Al Jazeera were made by Mr Oneissi or by Mr Sabra; (ii) the second call to Al Jazeera was allegedly made by Mr Sabra; (iii) Mr Oneissi was monitoring the tree in which the videotape had been placed; and (iv) the fourth call, demanding that Al Jazeera broadcast the content of the videotape, was allegedly made by Mr Oneissi or Mr Sabra.331

123. To support these conclusions, the Prosecution also bases itself on the following evidence:

- the statement by [REDACTED] – witness “PRH012” [REDACTED];332

327 R91-100298, paras 24, 28 and 52 and R91-100237, p. 2.

328 R91-200334, para. 1004.

329 R91-800075; R91-800076; R91-800077.

330 R91-200334, p.17.

331 R91-200334, para. 1004.

332 R91-200262, para. 38.

310


- the statement by [REDACTED] – witness “PRH020” [REDACTED].333 [REDACTED]334 [REDACTED]

- the statement by [REDACTED] – witness “PRH115”, [REDACTED].335

124. The Prosecution also relies on the Chronology Report to establish a connection between the activities of Mr Sabra and Mr Oneissi after the attack and the calls between Mr Sabra and Mr Merhi. The last telephone contact between the Purple phones took place at 17:24 on the day of the attack.336 The phone Purple 231 attributed to Mr Merhi was last used on 15 February 2005 and Mr Oneissi’s phone Purple 095 and Mr Sabra’s phone Purple 018 were used for the last time on 16 February 2005.337

125. In the videotape broadcast by Al Jazeera, Mr Abu Adass claims responsibility for the suicide attack committed against Mr Hariri, whereas the letter accompanying the videotape states that the attack was committed on behalf of the “Nusra and Jihad Group in Greater Syria”.338

126. Lastly, the Prosecution bases itself on the CST for the Accused and Mr Merhi to demonstrate that they were all in the same part of South Beirut on 14 February 2005, after the attack.339

127. In general, the Ayyash Defence contests the fact that Mr Ayyash played any role whatsoever in disseminating the false claim of responsibility, even through Mr Merhi.340 Moreover, the Defence for Messrs Ayyash, Badreddine and Oneissi consider that there is no proof to support the statement that the group which claimed responsibility for the attack does not exist, nor that the claim of responsibility was

333 R91-200263, paras 42, 58, 66, 72, 82.

334 R91-500004.

335 R91-200267, para. 60.

336 R91-200334, para. 1038.

337 R91-200334, paras 1044, 1047 and 1049.

338 R91-500004.

339 R91-800051; R91-800042; R91-800050; R91-800054; R91-800055; R91-800057; R91-800098; R91-800075; R91-800076; R91-800077.

340 Ayyash Brief, paras 15 and 16.

311


false.341 However, the Badreddine Defence does not adopt any position with regard to the recovery of the videotape from the tree by [REDACTED] Al-Jazeera.342

128. The Oneissi Defence considers that the respective roles of Messrs Oneissi and Sabra in relation to the calls and to the placing of the videotape in the tree have not been made clear. Moreover, according to the Oneissi Defence, the Prosecution has not established that they were aware of the content of the letter and of the videotape.343

129. The Sabra Defence also contests all the Prosecution’s allegations in relation to the events after the attack.344 More precisely, it points out that the Prosecution does not state who made three of the four calls that were made. Regarding the third call, which was made at 15:27 and which the Prosecution attributes to Mr Sabra, the Prosecution does not clearly determine the role of the Accused, other than that Mr Oneissi was allegedly monitoring the tree when that third call was made by Mr Sabra. The Sabra Defence considers that this lack of information violates the right of the accused to know precisely what accusations are made against him. Indeed, considering that, if Mr Sabra is not the person who made the aforementioned calls, no act can be imputed to him after the attack. The Defence contests in particular the Prosecution’s statement that “whilst Sabra made the 15:27 phone call, Oneissi watched the tree.” The Defence points out that this allegation is not included in the Indictment.345


130. The Pre-Trial Judge draws the attention of the Trial Chamber to the fact that the attribution to Mr Sabra and/or Mr Oneissi of the telephone calls made using the phone card “6162569” is based on the following theories: (i) the attribution of the Purple phones to Messrs Sabra and Oneissi; (ii) an analysis similar to that carried out in the context of the co-location of the user or users of phone cards at several

341 Ayyash Brief, para. 15; Oneissi Brief, para. 42; Badreddine Brief, para. 15 (x) and Confidential Annex A, p. 1.

342 Badreddine Brief, Confidential Annex A, p. 19.

343 Oneissi Brief, paras 39 to 41.


345 Sabra Brief, paras 17 and 18.

312


payphones over a period of time limited to a few hours; (iii) the “proximity” of the Accused to specific locations which is inferred from the cell coverage of their phone; and (iv) the Purple phones attributed to the Accused were not used at the same time as the telephone calls relating to the claim of responsibility made from four different payphones.

131. The Pre-Trial Judge further draws the attention of the Trial Chamber to several other aspects relating to the users of the phone card “6162569”, namely Mr Oneissi and/or Mr Sabra: [REDACTED];346 and (ii) [REDACTED].347

G. The existence of a consistent pattern of conduct

1. Introduction

132. This section concerns the Prosecution’s allegations relating to the existence of a consistent pattern of conduct by some of the accused, which are based on the attacks committed in the context of the so-called “connected” cases against [REDACTED] (2), as well as other attacks carried out in Kuwait (3).348

133. In its Pre-Trial Brief of 15 November 2012, the Prosecution refers to the “connected” cases.349 This resulted, on 9 January 2013, in the Badreddine Defence filing a motion before the Pre-Trial Judge seeking the removal of all the references to the “connected” cases350 from that Brief because in particular those references raise matters which should have been included in an Indictment confirmed according to the procedure in force.351 Counsel for the Defence of Messrs Ayyash, Oneissi

346 R91-100237, p. 2.

347 R91-200263, pp. 8-12.

348 Prosecution’s Brief, paras 167-185.

349 Prosecution Submission Pursuant to Rule 91, Annex A: Prosecution Pre-Trial Brief Pursuant to Rule 91, 15 November 2012, confidential, paras 160-168 and 172-174.

350 Motion of the Defence for Mr Badreddine Seeking an Order to Strike out Sections of the Prosecutor’s Pre-Trial Brief, 9 January 2013.

351 Id., para. 8.

313


and Sabra joined that motion.352 On 7 February 2013, the Pre-Trial Judge declared himself without jurisdiction to settle the matter and referred it to the Trial Chamber, pursuant to Rule 89 (E) of the Rules.353 On 8 March 2013, that Chamber dismissed the motion whilst inviting Defence Counsel to file by 9 April 2013 their “substantive submissions relating to the admissibility of the evidence” concerning the attacks committed in connected cases.354 Pursuant to that decision, Defence Counsel for Messrs Ayyash355 and Badreddine356 filed submissions on 9 April 2013 and the Prosecution replied to them on 24 April 2013.357 The matter is currently pending before the Trial Chamber.

2. The attacks carried out against [REDACTED]


134. From a point of view of law, in its Brief the Prosecution invokes Rule 149 (C) of the Rules in support of the admissibility of evidentiary materials which establish the existence of a consistent pattern of conduct.358 It also invokes the case law of national courts and international criminal tribunals, in particular that of the International Criminal Tribunal for Rwanda.359 It points out that, according to that case law, such evidence may be admitted when it:

352 Ayyash Joinder to “Motion of the Defence for Mr Badreddine Seeking an Order to Strike out Sections of the Prosecutor’s Pre-Trial Brief”, 14 January 2013; Jonction de la Défense de M. Hussein Hassan Oneissi à la requête de la Défense de M. Badreddine aux fins d’obtenir l’exclusion de sections du Mémoire d’avant procès du Procureur, confidential, 15 January 2013; Sabra Joinder to Badreddine Motion to Strike Sections of the Prosecution Pre-Trial Brief, confidential, 15 January 2015.

353 Decision on the Motion of the Defence for Mr Badreddine Seeking an Order to Strike Out Certain Sections of the Prosecutor’s Pre-Trial Brief, 7 February 2013.

354 Decision on Defence Motion to strike out part of the Prosecutor’s Pre-Trial Brief, 8 March 2013, Disposition, pp. 10-11.

355 Defence Submissions Pursuant to “Decision on Defence Motion to Strike Out Part of the Prosecutor’s Pre-Trial Brief”, 9 April 2013.

356 Submissions on Behalf of Mr Badreddine Seeking Exclusion of “Pattern of Conduct” Evidence, 9 April 2013.

357 Prosecution Consolidated Response to Badreddine and Ayyash Defence Motions Seeking Exclusion of Evidence, 24 April 2013.


359 Id., para. 168.

314


i) proves a highly distinctive or unique propensity of the accused to commit the criminal act;

ii) proves a peculiar feature of the case; and

iii) substantially enhances the probative value of the Prosecution’s case against the accused.360

135. From a factual viewpoint, [REDACTED]361 [REDACTED].362 [REDACTED]:

- [REDACTED].363 [REDACTED];364 [REDACTED].365 [REDACTED];366 [REDACTED]367 [REDACTED].368 [REDACTED]369 [REDACTED]370 [REDACTED]

- [REDACTED].371 [REDACTED]372 [REDACTED].373

136. The Ayyash Defence considers that the evidence adduced by the Prosecution to establish the existence of a consistent pattern of conduct – the admissibility of which it contests374 – does not prove beyond reasonable doubt that: (i) Mr Ayyash

360 Ibid.

361 Id., para. 170.

362 Ibid.

363 Id., para. 171.

364 Id., para. 172.

365 Ibid.

366 Id., para. 173.

367 Ibid.

368 Ibid.

369 Id., para. 174.

370 Id., para. 175.

371 Id., paras 176-178.

372 Id., para. 176.

373 Id., para. 177.


315


was involved in the three connected cases; and (ii) those cases demonstrate the existence of a consistent pattern of conduct.375

137. The Badreddine Defence, for its part, invokes the following arguments:

“[p]ursuant to Rule 91(I)(iii), the reasons why the legal basis upon which the Prosecution proposes to adduce the Connected Cases Evidence is disputed are that, in the circumstances, leading such evidence without indicting the Accused (i) violates the presumption of innocence as enshrined in Article 16(3) of the Statute, by diluting the standard of proof beyond a reasonable doubt; and (ii) in all the circumstances amounts to an abuse of process.

Pursuant to Rule 91(I) (iii), the reasons why the admissibility of the Connected Cases Evidence is disputed are that (i) pattern of conduct evidence is, in general, inadmissible before this Tribunal, (ii) the evidence is not truly evidence of any pattern of conduct, (iii) it is inadmissible for irrelevance, and (iv) in any event its prejudicial effect outweighs its probative value.”376


138. Without prejudice to the questions which are at present pending before the Trial Chamber – and, in particular, to the possibility of admitting evidence relating to the “connected” cases concerning persons who have not been formally indicted as part of those cases – the Pre-Trial Judge draws the attention of the Chamber to three issues of fact raised by the Prosecution’s allegations:

- [REDACTED]

3. The attacks carried out in Kuwait


139. According to the Prosecution, Mr Badreddine was convicted in Kuwait on 27 March 1984, under the alias of “Elias Fouad Saab”, for a series of attacks carried out in that State on 12 December 1983.377 Mr Badreddine allegedly in particular

375 Ibid., para. 27.

376 Badreddine Brief, paras 18 and 19.


316


developed and implemented the plan for the execution of those attacks, which were carried out using vehicles loaded with explosives.378 According to the Prosecution, “[o]ne attack consisted of a suicide bomber driving a truck loaded with explosives into the American embassy”379 and “[t]he Court of Kuwait held that SAAB selected the cars and prepared the explosive devices which required ‘a broad technical experience in the make and use of explosives’”.380 According to the Prosecution, “the Court of Kuwait found that ‘SAAB’ was an explosive expert, a trade he learned in his country Lebanon”381 and “[…] coordinated the purchase of vehicles and explosives, as well the perpetration of the attacks.”382

140. The Badreddine Defence challenges those allegations in the following terms:

“[p]ursuant to Rule 91(I) (iii), the reasons why the admissibility of the Kuwait Evidence is disputed are that (i) pattern of conduct evidence is, in general, inadmissible before this Tribunal, (ii) the evidence in question is not truly evidence of any pattern of conduct, (iii) it is inadmissible because there is a real possibility that Saab’s conviction in Kuwait was obtained as a result of violations of his fundamental human rights, (iv) it is inadmissible for irrelevance, and (v) in any event its prejudicial effect outweighs its probative value.”383


141. Without prejudice to the questions which are at present pending before the Trial Chamber, the Pre-Trial Judge draws the attention of the Chamber to two issues of fact raised by the Prosecution’s allegations:

- the question of whether Mr Badreddine and Mr Elias Fouad Saab are one and the same person; and

378 Ibid.

379 Ibid.

380 Ibid. Internal citations omitted.

381 Id., para. 180.

382 Ibid. Internal citations omitted.

383 Badreddine Brief, para. 20.

317


- the similarity between the methods for preparing and executing the attacks in Kuwait and those used in the context of the assassination and connected cases. If so, the conclusions to be drawn, both from a factual and legal perspective.

H. The victims

1. Introduction

142. This section deals with the question of the victims. Indeed, the Prosecution states that the attack caused the death of Mr Hariri and 21 other persons, as well as injury to 226 persons.384 This question was also the subject of an exchange between the Parties in the context of the procedure provided for in Rule 122 of the Rules relating to facts that are not contested.385

2. Mr Hariri and the other victims


143. The Prosecution makes a distinction between Mr Hariri and the other victims. It provides two kinds of information regarding Mr Hariri: biographical data, and evidence relating to his political allegiances and his religion. In this regard, the Prosecution explains that Mr Hariri was a Sunni Muslim, born on 1 November 1944 in Sidon, Lebanon,386 as mentioned on a death certificate issued by the Lebanese Ministry of the Interior.387 Moreover, according to the Prosecution, Mr Hariri resided at Quraitem Palace in Beirut and also spent time at his family home at Faqra, in Faraya, north-east of Beirut,388 as attested by witness “PRH017” – [REDACTED]389

384 Prosecution’s Brief, paras 19, 20 and 145.

385 Prosecution’s Notice on the Implementation of the Pre-Trial Judge’s “Order Regarding Narrowing Issues Contested at Trial”, 19 March 2013; Annex D, Letter from the Defence Counsel to the Acting Chief of Prosecutions, confidential, 21 February 2013.


387 R91-602957.


389 R91-200088.

318


– and witness “PRH407” – [REDACTED].390 These two witnesses provide information in relation to Mr Hariri’s activities [REDACTED]. With regard to Mr Hariri’s political activities, the Prosecution states that Mr Hariri was Prime Minister of five Lebanese governments between 31 October 1992 and 24 December 1998, as well as from 26 October 2000 until his resignation on 26 October 2004,391 as shown by official decrees originating from the Lebanese Government.392 Furthermore, the Prosecution points out that after having resigned, Mr Hariri began preparing his electoral campaign ahead of the parliamentary elections which were due to start in May 2005393 according to the statements by witness “PRH031”394 – [REDACTED] – and witness “PRH080”395 – [REDACTED] – and according to a decree from the Ministry of the Interior setting the date of the Parliamentary elections.

144. With regard to the victims other than Mr Hariri, the Prosecution alleges that, 21 persons were killed.396 These were seven persons who were part of the convoy, as stated by witness “PRH256”397 [REDACTED], Mr Fuleihan, a Member of Parliament who was accompanying Mr Hariri in his car398 and 13 bystanders. To prove that these 21 persons died, the Prosecution provides their death certificate,399 [REDACTED], a forensic report from the United Nations International Independent Investigation Commission (the “Investigation Commission”) from 2008,400 presented by witness “PRH120”, as well as a report from a forensic expert who examined the body of [REDACTED], presented by witness “PRH287”.401

390 R91-200129.


392 R91-400002. The Pre-Trial Judge notes that this document is not linked to a witness.


394 R91-200081, p. 20.

395 R91-200098.


397 R91-100222.



400 R91-606416.

401 R91-600023.

319


145. Lastly, the Prosecution alleges that the attack injured 226 persons.402 It relies in this regard on police reports,403 [REDACTED],404 interviews [REDACTED],405 [REDACTED],406 witness statements,407 hospital and medical data,408 photos,409 as well as audio410 and video411 recordings [REDACTED].

146. The Badreddine Defence does not contest the Prosecution’s allegations with respect to the victims of the attack.412 The Sabra Defence adopts the same position.413 The Ayyash Defence does not respond to the Prosecution’s various allegations concerning the victims, but defers to the responses given by Defence Counsel for the other Accused,414 while the Oneissi Defence is silent on the matter.415


147. The Pre-Trial Judge notes that the evidence adduced in support of the various allegations mentioned above is of different types: death certificates, testimonies, forensic expert reports, reports, etc.


403 R91-400005; R91-400015-R91-400016; R91-400023. The Pre-Trial Judge notes that this document is not linked to a witness.


405 R91-400012- R91-400014; R91-400022; R91-400024; R91-400026; R91-400032- R91-400149; R91-400178.

406 R91-400151.

407 R91-400167, “PRH463”; R91-400152, “PRH378”; R91-400018, “PRH401”; R91-400019, [REDACTED], “PRH353”; R91-400020, “PRH530”; R91-400021, “PRH235”; R91-400027, “PRH239”; R91-400028, “PRH284”; R91-400029, “PRH285”; R91-400030, “PRH148”.

408 R91-400017; R91-400153-R91-400154. The Pre-Trial Judge notes that this document is not linked to a witness.


410 R91-400168.

411 R91-400171-R91-400172.

412 Badreddine Brief, Confidential Annex A, paras 19-20.



415 Oneissi Brief.

320


148. The Pre-Trial Judge points out to the Trial Chamber that, on 19 March 2013, the Prosecution informed him that the Defence had identified nine facts that it intended not to contest at trial.416 They include a number of facts relating to the victims, namely:

“In addition to killing HARIRI, the explosion killed 21 other persons listed in Schedule A of the Indictment;

The explosion injured 226 persons listed in Schedule B of the Indictment;

HARIRI was born on 1 November 1944 in the city of Sidon, Lebanon;

HARIRI served as Prime Minister of Lebanon in five governments from 31 October 1992 to 4 December 1998, and from 26 October 2000 until his resignation on 26 October 2004; and

After his resignation, HARIRI started preparing for parliamentary elections which were due to start in late May 2005”.417

149. Lastly, the Pre-Trial Judge draws the attention of the Trial Chamber to the fact that the Prosecution has assessed the time (25 hours) which could be saved if it did not have to produce the evidence relating to these non-contested facts and call the witnesses concerned to testify.418

VI. Concluding observations regarding the witness lists

A. Introduction

150. By way of conclusion to the Report, and pursuant to Rule 95 (A) (vii) of the Rules, a number of observations can be made regarding the list of witnesses that the Prosecutor (B) and the Representative of Victims (C) intend to call at trial.

416 Prosecution’s Notice on the Implementation of the Pre-Trial Judge’s “Order Regarding Narrowing Issues Contested at Trial”, 19 March 2013, para. 5.

417 Ibid.

418 Prosecution Submission on the Impact on Court Time of the Prosecution not having to Lead Evidence on Facts the Defence has Agreed upon Not to Contest at Trial, including confidential Annexes 1, 2, 4, 5 and 7, 19 April 2013.

321


151. Only the Oneissi Defence has taken a stance on this issue, in general terms, which limits the scope of the assessments of the Pre-Trial Judge. It states in fact that the numerous amendments made to the accusatory instruments, and to the witness and exhibit lists, have served to have a significant impact on its capacity to prepare and to file a brief that fulfils the criteria set out in Rule 91 (I) of the Rules.419

B. The Prosecution Lists

1. Introduction

152. Following three successive requests from the Pre-Trial Judge, the Prosecution filed three witness lists, pursuant to Rule 91 (G) (i) of the Rules. The first list dates from 15 November 2012, the second from 19 August 2013, and the third from 23 October 2013 (the “Prosecution Witness List”). As was emphasised in the procedural background, these lists have been the subject of multiple amendments.420 At the present time, the Prosecution Witness List is made up of 540 witnesses. The estimation of the total duration of the examinations-in-chief of these witnesses is six hundred and eighty seven-and-a-half hours, whereas the list of 15 November 2012 indicated a duration of four hundred and fifty-seven-and-a-half hours for the examination-in-chief of 557 witnesses. The Pre-Trial Judge notes that when this list was last amended, the Prosecution added the witness “PRH058” and withdrew witness “PRH619” without either seeking or, a fortiori, obtaining his authorisation.

153. In addition to this estimation of the total duration of the presentation of the prosecution evidence, the Prosecution Witness List contains, for each witness, the


420 Prosecution Request to Amend the Witness and Exhibit Lists and Authorization for Further Disclosure, confidential with confidential annexes A to I, 21 December 2012; Prosecution’s Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification, confidential annexes B and C, 10 July 2013; Corrected Version of Prosecution’s Notice of Intention in Relation to Exhibits and Witnesses and Notice of Reclassification, 15 July 2013 and the Corrected Version of “ANNEX B - LIST OF WITHDRAWN WITNESSES”, filed 10 July 2013 filed the same day; Prosecution’s Submission Pursuant to Rule 91, confidential annex “Annex E – Proposed Additional Witnesses”, 15 July 2013; Prosecution’s Submission Pursuant to Rule 91 (G) (ii) and (iii), confidential, confidential annex “Annex C – Proposed Additional Witnesses”, 19 August 2013; Prosecution Submission Pursuant to Rules (sic) 91 (G) (ii) and (iii), confidential, confidential annexes A, C and E, 10 September 2013, Decision on the Prosecution Submission Pursuant to Rule 91 (G) (ii) and (iii), 18 September 2013.

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following information: (1) their name and possible pseudonym; (ii) a summary of the facts contained in their statement; (iii) the points in the indictment in respect of which they are expected to testify; (iv) an estimation of the total duration of their examination-in-chief; (v) information as to the means by which they shall give their evidence, namely in person, pursuant to Rule 150 of the Rules, or by another means, pursuant to Rules 155, 156 or 158 of the Rules. However, the Prosecution Witness List does not contain the number of witnesses who it is intended shall testify in respect of each accused and each count, as required under Rule 91 (G) (ii) (d) of the Rules.

154. The Prosecution Witness List lists the 540 witnesses in alphabetical order. In order to facilitate the reading of this list, and to better identify the issues raised by it, the Pre-Trial Judge has classified the witnesses in a table annexed to this document by subject (Annex C) and, if applicable, has supplied additional information in relation to them, such as the position they held at the time of the offences or a summary of the information relevant to their statement. These subjects have themselves been sub-divided into sub-categories in order to show the similarities in the subjects dealt with or the specificities of certain witness evidence. The Pre-Trial Judge however wishes to emphasise that this reorganisation exercise is not intended to present the Prosecution case exhaustively or to substitute his own list with the one he will present to the Trial Chamber and the participants in the proceedings before the commencement of the trial. Moreover, this analysis is without prejudice to the assessment that the Parties may subsequently make of the Prosecution Witness List.

155. The Pre-Trial Judge draws the attention of the Trial Chamber to the fact that the Prosecution intends to seek, for the vast majority of witnesses, the admissibility of their written statements in lieu of oral testimony, pursuant to Rule 155 (A) of the Rules. By way of a reminder, that provision states that written statements may be admitted, provided that they serve to “go to proof of a matter other than the acts and conduct of the accused as charged in the indictment.” However, the Pre-Trial Judge finds, as he has previously noted in respect of the pyramidal structure of the Prosecution evidence, that some analysis reports drawn up by experts – who, according to the Prosecution, will be heard orally – are themselves based on a package of witness evidence, the written admission of which will be sought pursuant

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to Rule 155 of the Rules and which therefore does not relate to the acts or conduct of the Accused. This peculiarity would merit being taken into account when it comes to determining the hearing of witnesses whose testimony has a direct bearing on the acts and conduct of the Accused.

156. The subjects covered by the witnesses in their statements, and briefly discussed hereinafter, are: forensic and criminalistic reports (2), the attribution and use of telephones (3), the Accused and Mr Merhi (4), Mr Hariri himself and the Lebanese context (5), the Mitsubishi vehicle (6), CCTV cameras (7), Mr Abu Addas (8), the “false claim of responsibility for the attack” (9), the victims of the attack (10), the “consistent pattern of conduct” (11) and a residual category (12).

2. The forensic and criminalistic reports

157. This subject includes a very large number of reports which are organised into several categories, the most voluminous of which relates to the inspection of the scene of the attack. A large number [REDACTED] are quoted in these reports. According to the Prosecution, they should give their evidence pursuant to Rule 155 of the Rules, with the exception of one of them, who should be heard. Among the other [REDACTED], five witnesses, who will be heard orally for six hours each, form a panel of experts who were involved in the drafting of the same report. The relevance of hearing all these witnesses has to be questioned. Moreover, several teams of national experts were involved in the preparation of the reports relating to the scene of the attack. According to the Prosecution, nine [REDACTED] experts, four [REDACTED] experts, five [REDACTED] and three [REDACTED] experts who drafted joint reports should give evidence pursuant to Rule 155 of the Rules.

158. The analyses of DNA samples found at the scene of the attack were carried out by 16 people of whom, according to the Prosecution, only one will be heard orally.

159. Two experts in the field of seismology also produced a joint report dealing with the time of the attack. The Prosecution seeks the admission of that report in the form of a written statement, pursuant to Rule 155 of the Rules.

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160. And lastly, the Prosecution requests that the statements of nine witnesses relating to the explosion reconstruction experiments be admitted in writing, pursuant to Rule 155 of the Rules. In addition, a [REDACTED] is expected to give evidence over 18 hours, notably in relation to a reconstruction of the attack carried out in 2010.

3. Attribution and use of telephones

161. This category is subdivided into several subject areas: unjustified attributions of telephone numbers to certain individuals (a), the attribution of telephone numbers to certain individuals (b), the sale of telephone handsets and additional credit and the use of phone lines (c), and also telecommunications analysis (d).

a. Unjustified attributions of telephone numbers to certain individuals

162. This category of witnesses comprises 26 persons whose evidence relates solely to the fact that a telephone line was apparently set up in their name without their knowledge. The Prosecution intends to request that for all of these witnesses – with the exception of two of them – their written statements be admitted in lieu of oral testimony pursuant to Rule 155 of the Rules.

b. The attribution of telephone numbers to certain individuals

163. This category comprises 62 persons whose evidence relates to telephone lines that they used or the users of which they knew. Amongst this evidence is that of [REDACTED] of two mobile phone companies that were active in Lebanon in 2005: [REDACTED] – witness “PRH064” – [REDACTED] – witness “PRH011” [REDACTED]. These two companies supplied the Prosecution with call data records which apparently led to the identification of the telephone networks implicated in the attack.

164. Among the other persons featuring in this category, a number were allegedly in telephone contact with certain phones attributed to the Accused or to members of

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their families. According to the Prosecution, 16 witnesses are expected to give their testimony orally and 44 pursuant to Rule 155 of the Rules.

c. The sale of telephone handsets and additional credit and the use of telephone lines

165. This category includes 15 persons who it is anticipated shall give evidence relating to the sale of telephone handsets (international mobile equipment identity (IMEI) numbers), telephone lines (made up of the subscriber identity module (SIM)), and additional credit which were allegedly implicated in the preparatory activities to and execution of the attack, as well as those subsequent to the attack, including the false claim of responsibility. The Prosecution intends to seek that for all these witnesses their written statements be admitted in lieu of oral testimony pursuant to Rule 155 of the Rules.

d. Telecommunications analysis

166. 33 witnesses are included in this category. They are for the most part [REDACTED].

167. According to the Prosecution, ten witnesses will have to be heard orally. Amongst these are the three witnesses most commonly cited in support of the Prosecution Brief: [REDACTED] – witness “PRH435” – whose examination-in-chief should last for 20 hours; [REDACTED] – witness “PRH147” – whose examination-in-chief is also scheduled for 20 hours; and [REDACTED] – witness “PRH230” – whose examination-in-chief will take approximately 15 hours.

4. The Accused and Mr Merhi

168. This category includes the evidence of persons who allegedly have specific information relating to the Accused and Mr Merhi and, in the case of Mr Badreddine, his aliases.

169. An examination of this category leads to the conclusion that the majority of the information available relates to Messrs Ayyash and Sami Issa (the suspected

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alias of Mr Badreddine). 24 witness statements relate to Mr Ayyash. [REDACTED]. According to the Prosecution, roughly half of these witnesses are expected to be heard orally.

170. 35 witness accounts relate to Mr Sami Issa or Mr Badreddine. [REDACTED]. According to the Prosecution, all the witnesses in this category, with the exception of one of them, will be called to give evidence orally.

171. In addition, two witnesses apparently have information relating to Mr Ayyash and Mr Badreddine and two others in relation to Mr Merhi. According to the Prosecution, three of them should be called to give evidence orally.

172. Finally, according to the Prosecution, three witnesses are expected to give evidence in relation to Mr Sabra. Of these, only one is expected to give evidence orally.

5. Mr Hariri himself and the Lebanese context

173. This category is subdivided into five subject areas. The first and second relate respectively to the activities of certain persons on 14 February 2005 prior to the attack (six witnesses) and to information and materials supplied by journalists and photographers (seven witnesses). The Prosecution intends to request that for all these witnesses their written statements be admitted in lieu of their oral testimony pursuant to Rule 155 of the Rules.

174. The third subject area relates to Mr Hariri’s activities and movements. 26 persons are expected to give evidence on this topic. With the exception of one [REDACTED], the Prosecution intends to apply Rule 155 of the Rules to all these persons.

175. The fourth subject area deals with the security measures taken in order to protect Mr Hariri. According to the Prosecution, five witnesses are expected to give evidence in this regard, one orally.

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176. The final subject area relates to the political situation in Lebanon prior to and after the attack. Two persons are expected to give evidence in this respect, of whom one will be heard orally.

6. The Mitsubishi vehicle

177. This category includes 16 witness accounts relating to the ‘Mitsubishi Canter’ van. They include in particular those of four [REDACTED] providing evidence in respect of the theft of the vehicle in Japan, [REDACTED] who have traced the vehicle’s history from that country, and [REDACTED].

7. CCTV cameras

178. This category includes eight witness accounts relating to the analysis of the security cameras at the HSBC Bank, the Phoenicia Hotel and the Solaiman Franjiye tunnel located close to the scene of the attack. According to the Prosecution, of these witnesses, two of [REDACTED] will give evidence orally.

8. Mr Abu Adass

179. This category includes the evidence of seven persons who allegedly knew Mr Abu Addas. According to the Prosecution, two of the witness accounts should be introduced on the basis of Rule 158 of the Rules, and the other witnesses should be heard orally.

9. The false claim of responsibility for the attack

180. Eight persons make up this category. [REDACTED]. According to the Prosecution, all of these witnesses save one are expected to be heard orally.

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10. The victims of the attack

181. This category comprises 57 persons. [REDACTED]. Reference is also made to the remarks relating to the 10 witnesses who appear on both the Prosecution List of Witnesses and that of the LRV.421

182. The Prosecution has indicated that it intends to seek the admission of the written statements of all these witnesses in lieu of oral testimony, pursuant to Rule 155 of the Rules.

11. The “consistent pattern of conduct”

183. This category comprises the witness accounts submitted in support of the Prosecution contention that Mr Ayyash and Mr Badreddine adopted a “consistent pattern of conduct” as demonstrated by their involvement in several attacks. [REDACTED].422

184. [REDACTED]. These numerous witness accounts (73) can be divided on a case-by-case basis. As previously stated, these allegations are not contained in the Indictment but are presented in Section X of the Prosecution’s Brief. The Prosecution requests that the majority of these witnesses have their written statements admitted pursuant to Rule 155 of the Rules. However, 26 witnesses should give oral testimony, [REDACTED].

12. The residual category

185. 21 witness accounts which do not appear to relate specifically to the subjects dealt with above have been filed in a residual category. This includes summaries of their statements as the Prosecution submitted them in the Prosecution Witness List. According to the Prosecution, only one of these witnesses is expected to give oral testimony.

421 Amended and Updated Lists of Witnesses and Exhibits of the Legal Representative of Victims, 29 August 2013.

422 Prosecution’s Brief, section X, pp. 64 to 73.

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C. The lists of the Legal Representative of Victims

1. Introduction

186. On 13 December 2012, the LRV filed a first list of witnesses and exhibits pursuant to Rule 91 (H) of the Rules. 423 On 29 August 2013, he filed amended and updated versions of those documents.424 The Defence has not taken a position in respect of them.

2. The list of witnesses

187. The Pre-Trial Judge notes that the LRV intends calling 60 witnesses in total, for an estimated duration of 55 hours and 45 minutes. The LRV anticipates that of those witnesses, 33 will give their testimony orally and 27 pursuant to Rule 155 of the Rules. Some of those witnesses are expected to produce numerous exhibits. Moreover, 14 of these persons also appear on the Prosecution Witness List.425 However, in the meantime, two of those witnesses have been withdrawn from that list.426 Of those 60 aforementioned witnesses, 44 are victims participating in the proceedings (“VPP”) following decisions rendered by the Pre-Trial Judge on 8 May,427 3 September428 and 28 November 2012.429

188. The witnesses can be grouped according to the harm they suffered as a result of the death of the same victim of the attack. Each member of the groups concerned should be able to give evidence individually in respect of the harm that

423 List of Witnesses and Exhibits Filed on Behalf of the Participating Victims with Confidential & Ex Parte Annexes, confidential Annex and [REDACTED], 13 December 2012.

424 Amended and Updated Lists of Witnesses and Exhibits of the Legal Representative of Victims, confidential annexes A et C, 29 August 2013.

425 [REDACTED].

426 [REDACTED] were withdrawn from the Prosecution List on 10 July 2013. That withdrawal was approved by the Pre-Trial Judge on 5 August 2013. Decision on Two Prosecution Submissions in relation to Amending the Prosecution Rule 91 Filings, 5 August 2013.

427 Decision on Victims’ Participation in the Proceedings, 8 May 2012.

428 Second Decision on Victims’ Participation in the Proceedings, 3 September 2012.

429 Third Decision on Victims’ Participation in the Proceedings, 28 November 2012.

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they themselves and their family have suffered as a result of the death of a member of their family. Those groups are:

- the wife, the mother, brother and two daughters of [REDACTED], who died as a result of the attack.430 It is anticipated that the testimony of these five witnesses will be given pursuant to Rule 155 of the Rules for an estimated duration of one and-a-quarter hours;

- the wife and the son of [REDACTED], who died as a result of the attack.431 It is anticipated that the wife’s evidence will be given pursuant to Rule 155 of the Rules and the son’s orally, for an estimated duration of one hour;

- the mother, brother, sister and father of [REDACTED] – who died as a result of the attack.432 It is anticipated that the testimony of the parents and sister will be given pursuant to Rule 155 of the Rules and that of the brother orally for an estimated duration of one hour ;

- the wife and two daughters of [REDACTED], who died as a result of the attack.433 The testimony of the two daughters [REDACTED]. It is anticipated that the testimony of the wife and one of the daughters will be given pursuant to Rule 155 of the Rules, and that of the second daughter orally, for an estimated duration of one hour;

- the wife, the mother, two sisters and two brothers of [REDACTED], who died as a result of the attack.434 It is anticipated that the testimony of five of them will be given pursuant to Rule 155 of the Rules and that the sixth one will give evidence orally for an estimated duration of one hour.

430 Respectively: [REDACTED].





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- five brothers, the father, the mother and sister of [REDACTED], who died as a result of the attack.435 It is anticipated that the testimony of seven of them will be given pursuant to Rule 155 of the Rules and that of one of them orally for an estimated duration of one hour;

- the sister and brother of [REDACTED], who died as a result of the attack.436 It is anticipated that both will testify orally for an estimated duration of one hour.

189. In order to ensure the efficiency of the proceedings, the need to have all the members of a group of witnesses who have suffered the same harm as a result of the death of the same person testify individually should be examined. In this respect, it should be noted that, for the majority of the members of the same family, the LRV has already favoured the procedure provided for under Rule 155 of the Rules. This approach seems appropriate and should, as far as possible, be given precedence.

190. Finally, the LRV anticipates that it will be calling [REDACTED] victims who have suffered direct harm as a result of the attack. Among them, nine are expected to give oral testimony and three pursuant to Rule 155 of the Rules. Each of these victims is expected to produce multiple exhibits. [REDACTED] of them are also on the Prosecution Witness List.437

191. The 16 witnesses submitted by the LRV who do not have VPP status are:

- [REDACTED].

192. With regard to these last four witnesses, the extent to which their respective evidence does not cover the same area of expertise should be examined.



437 V034; V018; V013; V012; V033.

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3. The exhibit list

193. The LRV anticipates producing 373 exhibits as evidence.438 It has not specified the number of exhibits which also appear on the Prosecution’s list of exhibits. However, 82 items bear the same numbers as those appearing on that list. It would appear though that the LRV exhibit list has not been updated following the amendments recently made by the Prosecution to its own list. As a consequence, the number of exhibits likely to have been duplicated also needs to be updated. The majority of LRV exhibits appear to comprise witness statements, medical reports, identity documents and press cuttings.

Done in English, Arabic and French, the French version being authoritative.

Leidschendam, 11 December 2013


438 Amended and Updated Lists of Witnesses and Exhibits of the Legal Representative of Victims, 29 August 2013, annex B, confidential “Amended Exhibit List of the Legal Representative of Victims”.

14.Case name: The Prosecutor v. Merhi


Title: Decision to Hold Trial in Absentia

Short title: Trial in Absentia TC

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THE TRIAL CHAMBER

Case No.: STL-13-04/I/TC

Before: Judge David Re, Presiding Judge Janet Nosworthy Judge Micheline Braidy Judge Walid Akoum, Alternate Judge


Date: 20 December 2014



THE PROSECUTOR v.

HASSAN HABIB MERHI

DECISION TO HOLD TRIAL IN ABSENTIA


The Accused: Mr Hassan Habib Merhi

Defence Office: Mr François Roux

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Trial in Absentia TC

INTRODUCTION

1. Hassan Habib Merhi, on 31 July 2013, was indicted for his alleged role in the explosion in Beirut on 14 February 2005 that killed the former Lebanese Prime Minister, Rafik Hariri and 21 others, and injured over 200. On 28 June 2011, the Pre-Trial Judge confirmed an amended indictment in the case of Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra in respect of those events,1 and the trial of the four in absentia will commence on 16 January 2014.2

2. The Trial Chamber is now seised with an order of the Pre-Trial Judge under Rule 105 bis (A) of the Tribunal’s Rules of Procedure and Evidence to determine whether to try Mr. Merhi in absentia,3 as permitted by Article 22 of the Statute of the Special Tribunal.

3. The Trial Chamber has analysed – within the context of the prevailing security situation in Lebanon – each of the measures taken by the Lebanese authorities and the Special Tribunal to personally notify Mr. Merhi of the charges against him and to secure his appearance at the Special Tribunal. It has also considered whether the widespread publicity in the Lebanese media of his alleged role, both before and after the indictment was confirmed, has informed him of the charges and the different ways that he could participate in a trial. The extensive coverage in the Lebanese media of the indictment of the four Accused in the Ayyash case has also been considered.

4. The Trial Chamber has concluded that Mr. Merhi has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance before the Special Tribunal and to inform him of the charges by the Pre-Trial Judge.

1 STL, The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra, STL-11-01/PTJ, Decision relating to the Examination of the Indictment of 10 June 2011 issued Against Mr Salim Jamil Ayyash, Mr Mustafa Amine Badreddine, Mr Hussein Hassan Oneissi, & Mr Assad Hassan Sabra, 28 June 2011; STL-11-01/PTJ, Public Redacted Version, Indictment, 10 June 2011. The Prosecutor had submitted an indictment and supporting materials to the Pre-Trial Judge on 17 January 2011.

2 STL-11-01/PT/TC, Scheduling Order, 10 December 2013.

3 STL, Prosecutor v. Hassan Habib Merhi, STL-13-04/I/PTJ, Ordonnance de Saisine de la Chambre de Première Instance conformément à l’Article 105 bis, paragraphe A) du Règlement de Procédure et de Preuve aux fins de Statuer sur l’Engagement d’une Procédure par Défaut, 25 novembre 2013.

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The combination of these measures has satisfied the legal requirements necessary to try him in absentia and the Trial Chamber has decided, for the reasons that follow, to proceed to try Mr. Merhi in absentia.

PROCEDURAL BACKGROUND

5. On 14 February 2005, a large explosion occurred near the St George Hotel in downtown Beirut in Lebanon. A number of people, including the former Lebanese Prime Minister, Rafik Hariri, were killed and many others were injured. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra were indicted on 30 June 2011 for nine counts connected with these events, including conspiracy to commit a terrorist act, committing a terrorist act by using explosives, and the murder of Rafik Hariri and 21 others.4

6. On 5 June 2013, the Prosecutor submitted an indictment to the Pre-Trial Judge alleging Mr. Merhi’s participation in these events.5 The indictment charges Mr. Merhi with five counts, namely, conspiracy to commit a terrorist act, and as an accomplice with respect to: committing a terrorist act by using explosive materials; the premeditated intentional homicide of Rafik Hariri; the premeditated intentional homicide of 21 others; and, the premeditated intentional attempted homicide of 226 people, by using explosives.6

7. On 31 July 2013, the Pre-Trial Judge confirmed the indictment,7 and issued national and international arrest warrants for Mr. Merhi’s apprehension.8 On 6

4 Having initially submitted an indictment and supporting materials to the Pre-Trial Judge on 17 January 2011.

5 Prosecution’s Submission of an Indictment for Confirmation and Order to Keep this Filing and its Annexes, Confidential and Ex Parte; and Motion for an Arrest Warrant, Order for Transfer and Detention; and Order for Non-Disclosure, Confidential and Ex Parte, 5 June 2013.

6 Indictment, Confidential and Ex Parte, 5 June 2013. A confidential redacted version was filed on 31 July 2013 and a public redacted version was filed on 11 October 2013 pursuant to an order of the Pre-Trial Judge of 10 October 2013. Public Redacted Version of the ‘Decision Relating to the Examination of the Indictment of 5 June 2013 Issued Against Mr Hassan Habib Merhi’ Dated 31 July 2013, 11 October 2013.

7 Decision relating to the Examination of the Indictment of 5 June 2013 Issued against Mr. Hassan Habib Merhi, Confidential, 31 July 2013; Public Redacted Version dated 11 October 2013.

8 Warrant to Arrest Mr. Hassan Habib Merhi and Order for Transfer and Detention, Confidential, 31 July 2013; International Warrant to Arrest Mr. Hassan Habib Merhi and Request for Transfer and Detention, Confidential,

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August 2013, the indictment and arrest warrant were transmitted to the Government of Lebanon for service and execution. On 6 September 2013, the Acting Public Prosecutor of the Lebanese Court of Cassation9 submitted a report to the President of the Tribunal under Rule 76 (C) of the Tribunal’s Rules, outlining the attempts by the Lebanese authorities to execute the arrest warrant. He informed the President that it had not been possible to find Mr. Merhi or a suitable person pursuant to Article 147 (7), on whom they could serve the documents at the known places of residence or domicile of Mr. Merhi.10 On 16 September 2013, the President requested clarifications from the Acting Prosecutor-General,11 who obliged in four further reports to the President, on 24 and 26 September and 3 and 4 October 2013.12

8. On 10 October 2013, the President of the Tribunal issued an order under Rule 76 stating that he was satisfied that ‘reasonable attempts have been made by the Tribunal and the Lebanese authorities to serve the indictment and arrest warrant on the Accused.’13 Accordingly, he ordered that the indictment be served by alternative methods through public advertisement, and requested the Registrar to transmit an advertisement to the Lebanese authorities. He ordered that they take all reasonable steps to publicly notify Mr. Merhi of the existence of the indictment and to call upon him to surrender to the Tribunal.14 On the same day, the Pre-Trial Judge lifted the confidentiality of the indictment, allowing a redacted version to be published.15

31 July 2013.

9 The ‘Acting Prosecutor-General’.

10 Report of Prosecutor-General, 6 September 2013.

11 Letter from the President to the Acting Public Prosecutor at the Lebanese Court of Cassation Judge Samir Hammoud, 16 September 2013.

12 Report of the Acting Prosecutor-General of 24 September 2013 (Confidential and Ex Parte Annex C to the ‘Order Pursuant to Rule 76(E)’); Report of the Acting Prosecutor-General of 26 September 2013 (Confidential and Ex Parte Annex D to the ‘Order Pursuant to Rule 76(E)’); Report of the Acting Prosecutor-General of 3 October 2013 (Confidential and Ex Parte Annex E to the ‘Order Pursuant to Rule 76(E)’) and Report of the Acting Prosecutor-General of 4 October 2013 (Confidential and Ex Parte Annex F to the ‘Order Pursuant to Rule 76(E)’).

13 Order pursuant to Rule 76 (E), 10 October 2013, paragraph 30.

14 Order pursuant to Rule 76 (E), 10 October 2013, Disposition.

15 STL-13-04/I/PTJ, Order on Partially Lifting the Confidentiality of the Indictment against Hassan Habib Merhi, 10 October 2013.

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9. Following the President’s order, the Registrar wrote to the Acting Prosecutor-General in Lebanon, requesting the publication of an advertisement in five newspapers: three Arabic, one English, and one French Lebanese – in accordance with Rule 76 bis.16 The Tribunal also issued a media release on its website publicising the indictment of Mr. Merhi.17 At the President’s request, the Registrar informed the Trial Chamber of the efforts made to serve the indictment on Mr. Merhi.18

10. On 25 November 2013, under Rule 105 bis (A) of the Rules, the Pre-Trial Judge issued an order seising the Trial Chamber with determining whether to initiate proceedings in absentia against Mr. Merhi, reporting that he had not been arrested, voluntarily appeared before the Tribunal, or otherwise submitted himself to its jurisdiction.19

Service of an indictment upon an Accused person under the Tribunal’s Rules and Lebanese law

11. The procedures for serving an indictment on an accused person are in Rule 76 ‘Service of Indictment’. Rule 76 (A) specifies that a certified copy of the indictment ‘shall be formally provided to the authorities of the State in whose territory the accused resides or was last known to reside, or in whose territory or under whose jurisdiction he is believed likely to be found’. According to Rule 76 (B), ‘Personal service of an indictment on the accused is effected by giving the accused a copy of the indictment, together with the summons to appear or the arrest warrant’.

12. The information available to the Pre-Trial Judge as of August 2013 was that Mr. Merhi is a Lebanese citizen whose last known place of residence and the location of his family, were in Lebanon. Acting on this information, the Pre-Trial

16 Correspondence from the Registrar to the Prosecutor-General, ref. EXT\SUP\LB\MJ\20131010_REG2404_ss, 10 October 2013.

17 ‘STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut Attack’, 10 October 2013.

18 Internal Memorandum, ref.: JUD/CAS/HM/20131111_REG2469_um, Report on the steps undertaken by the Registry to advertise the indictment against Mr. Hassan Habib Merhi, 11 November 2013.

19 He also requested in the Order that the Registrar provide the Trial Chamber with relevant documentation. Order to Seize the Trial Chamber Pursuant to Rule 105 bis (A) of the Rules of Procedure and Evidence in Order to Determine Whether to Initiate Proceedings in Absentia, 25 November 2013, Disposition.

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Judge instructed the Registrar to send the indictment and warrant of arrest to the Government of Lebanon for notification and execution. The Acting Prosecutor-General then attempted personal service of the indictment on Mr. Merhi according to the procedures specified in Chapter V of the Lebanese Code of Criminal Procedures, ‘Rules governing the service of legal documents and decisions’.20

13. Like Rule 76 (B), these rules also require a form of personal service, and Article 147 (6) of the Lebanese Code details the procedure for ordinary notification under Lebanese Law. The person ‘serving the document shall [ ... ] do his utmost to notify the addressee himself’. Under Article 147 (7),

If the person to be served with a document is not present at his elected place of residence or domicile, the document shall be served through a member of his family, a domestic employee or any other person living in the same dwelling provided that it may be inferred from his appearance that he is an adult. A further condition is that his interest does not conflict with that of the addressee of the document. If he refuses to state his name and relationship with the addressee or to acknowledge receipt of a copy of the document, the process server shall record his refusal and shall leave a copy of the document with him.

14. Both the Tribunal’s Rules and the Lebanese Code of Criminal Procedure provide for alternative means of serving indictments and warrants of arrest. Rule 76 (E) of the Tribunal’s Rules provides that,

where the President establishes that reasonable attempts have been made to serve the indictment, the summons to appear or the warrant of arrest to the accused, but that they have failed, he may, after consulting the Pre-Trial Judge, order the service of process to be effected in an alternative manner, including procedures of public advertisement.

15. ‘Alternative manner’ is not further defined by the Tribunal’s Rules. Under Lebanese law, where the personal service of an indictment is not possible in the manner specified in Article 147 of the Lebanese Code, Article 148 provides allows for notification by other means,

20 Articles 147, 148 and 149.

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If the person to be served with a document has no known place of residence or domicile, or if the, process server does not find anyone who can be served with the document at his place of residence or domicile, he shall be notified through the posting of a copy of the document at the entrance to his last known place of residence; a second copy thereof shall be communicated to the local mayor [the mukhtar], and a third copy shall be posted at the entrance to the judicial authority that ordered the notification. These measures shall be recorded by the process server on the original copy of the document, which shall be returned to the relevant authority. If the person to be served with a document has no known last place of residence, it shall suffice for the process server to post a copy of the document at the entrance to the judicial authority that ordered the notification.

Steps taken to secure Mr. Merhi’s appearance before the Tribunal and to inform him of the charges by the Pre-Trial Judge

16. Personal service of the indictment on Mr. Merhi, as required by Rule 76 (B), has thus far been unsuccessful. The measures taken to effect personal service on him are detailed below, and are documented in the Acting Prosecutor-General’s reports to the Tribunal’s President and Registrar. The Acting Prosecutor-General worked with the Lebanese Central Criminal Investigation Section (CCIS) in attempting to effect the personal service referred to in Rule 76.

17. The Acting Prosecutor-General first attempted notification according to the procedures of Article 147 of the Lebanese Code of Criminal Procedure. According to the information available to the Special Tribunal’s Prosecutor,21 Mr. Merhi’s last known place of residence or domicile was in an apartment in Bourj-El-Barajneh in Dahyieh in South Beirut.22

18. In attempting to locate Mr. Merhi for execution of the warrant of arrest and service of the indictment, the Acting Prosecutor-General obtained the following information about him from the competent Lebanese authorities:

21 Request for assistance from the Prosecutor of the Special Tribunal for Lebanon to the Government of Lebanon, 5 June 2012.

22 On the 7th floor of the Gardenia building in El-Abiyad road in El-Roueiss.

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• the Directorate General of Personal Status of the Ministry of the Interior and Municipalities has no registered death certificate relating to Mr. Merhi, meaning that he is registered as living,23

• an ‘individual personal status extract’ issued by the Directorate General of Personal Status records the name of Mr. Merhi, his family name, his father’s name, his mother’s given and family names, his place and date of birth, his religion, his sex, his marital status, his date of birth and his registration date,24

• a ‘family personal status extract’ issued by the Directorate General of Personal Status records the names of Mr. Merhi and his immediate family, their father’s name, their mother’s maiden name, their places and dates of birth, their religion, their marital status, their sex and their registration date,25

• the ‘electoral list (males)’ of Zqaq-El-Blat municipality in Beirut, records the name of Mr Merhi for the electoral period 2013-2014,26

• Vehicle Registration Service records reveal that no vehicle is registered in Mr. Merhi’s name,27

• the Acting General Director for Real Estate Affairs confirmed that Mr. Merhi owns real estate with real estate registry numbers:

˚ 352 in Ain Qana, Nabatiyeh, and

˚ 2501 (section 27) in Baabda, Bourj-El-Barajneh, Beirut,28

23 Report of the Acting Prosecutor-General, 26 September 2013 and the attached response of the Directorate General of Personal Status, 23 September 2013.

24 Report of the Acting Prosecutor-General, 26 September 2013 and the attached Individual Personal Status Extract of Mr. Merhi issued by the Directorate General of Personal Status, 23 September 2013.

25 Report of the Acting Prosecutor-General, 26 September 2013 and the attached Family Personal Status Extract of Mr. Merhi issued by the Directorate General of Personal Status, 23 September 2013.

26 Report of the Acting Prosecutor-General, 26 September 2013 and the attached copy of the Electoral List (Males) of Zqaq-El-Blat for the electoral period 2013-2014 issued by the Directorate General of Personal Status, 23 September 2013.

27 Report of the Acting Prosecutor-General, 24 September 2013 and the attached response of the Vehicle Registration Service (Traffic, Truck and Vehicle Management Authority at the Ministry of the Interior and Municipalities), 18 September 2013.

28 Report of the Acting Prosecutor-General, 24 September 2013; the attached response of the Acting General Director for Real Estate Affairs, 18 September 2013; and the attached Information Card on Real Estate Ownership issued by the General Directorate for Real Estate Affairs, 18 September 2013.

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• the Archives and Documents Bureau of the Directorate General of Internal Security Forces has no record relating to Mr. Merhi,29

• Mr. Merhi is not registered with the National Social Security Fund,30

• the Ministry of Labour has no record of Mr. Merhi applying to hire a housemaid,31

• Mr. Merhi has obtained two passports: issued on 22 September 1993 and 19 October 2007,32 and

• Mr. Merhi’s official exit and entry into Lebanon records reveal that he has not officially left the country since he returned to Lebanon on 18 October 2002 from a visit to Syria.33

19. On 12 August 2013, the Acting Prosecutor-General sent the warrant for Mr. Merhi’s arrest to the head of the CCIS. The following day the CCIS circulated a wanted notice against Mr. Merhi.34 In the normal course of events CCIS officers would have attempted to apprehend Mr. Merhi at his last known residence. On 15 August 2013, however, a car bomb containing around 100 kilograms of explosives was detonated in Dahyieh, Beirut. According to a CCIS report, Hezbollah then implemented a large-scale deployment of its security forces there and installed fixed barricades on all the street entrances to Dahyieh.35

29 Report of the Acting Prosecutor-General, 24 September 2013 and the attached response of the Head of the Archives and Documents Bureau, 18 September 2013.

30 Report of the Acting Prosecutor-General, 24 September 2013 and the attached response of the Directorate of statistics and Work Methods of the National Social Security Fund, 19 September 2013.

31 CCIS record, No. 1455/302, 18 September 2013, attached to the report of the Acting Prosecutor-General of 24 September 2013.

32 Report of the Acting Prosecutor-General, 4 October 2013; the attached response of the Director-General of General Security, 4 October 2013; and the attached copy of the passport application.

33 Report of the Acting Prosecutor-General, 4 October 2013; the attached response of the Director-General of General Security, 4 October 2013; and the Entry/Exit Record issued by the Directorate-General of General Security.

34 CCIS record, No. 1249/302, 13 August 2013, attached to the report of the Acting Prosecutor-General of 6 September 2013.

35 CCIS record, No. 1249/302, 13 August 2013, attached to the report of the Acting Prosecutor-General of 6 September 2013.

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20. The Acting Prosecutor-General reported that CCIS officers tried to go into Dahyieh several times to look for Mr. Merhi, but that these security measures prevented them from doing so. The barricades, reported the CCIS officers, prevented them from going directly to the apartment in Dahyieh where Mr. Merhi was registered as living. CCIS officers contacted the Security Committee of Hezbollah to negotiate access but after several calls were told that because of these security measures they could not carry out any tasks related to Mr. Merhi in Dahyieh or in Ain Qana, South Lebanon.36

21. The information available to the Trial Chamber, from the reports of the Acting Prosecutor-General, is that these security measures in Dahyieh, prevented the CCIS from entering the suburb to attempt to find Mr. Merhi at his last known residence in Dahyieh, until 6 December 2013.37 When they entered the area on 6 December 2013 their information was that Mr. Merhi was not in the apartment.38 They returned and continued the searches and inquiries on 10 December 2013, but these operations proved unsuccessful.39 CCIS officers also travelled to Ain Qana, South Lebanon, on 7 December 2013 and 15 December 2015, but were informed that Mr. Merhi was not in his home village and was not living there.40

Service by alternative methods – under Lebanese law

22. Reacting to the Acting Prosecutor-General’s report of 6 September 2013,41 the President of the Tribunal found, on 10 October 2013, that he was satisfied that

36 CCIS record, No. 1249/302, 13 August 2013, attached to the report of the Lebanese Acting Prosecutor-General of 6 September 2013.

37 CCIS record, No. 1249/302, 13 August 2013 (reviewed on 6 September 2013), attached to the report of the Lebanese Acting Prosecutor-General of 6 September 2013; CCIS Record, No. 1663/302, 28 October 2013 (reviewed on 6 November 2013), attached to the report of the Acting Prosecutor-General of 6 November 2013; and CCIS Record No. 1800/302, 10 December 2013, attached to the PG report of 16 December 2013.

38 Report of the Acting Prosecutor-General of 18 December 2013.



41 Report dated 6 September 2013 from Judge Samir Hammoud, Acting Public Prosecutor at the Court of Cassation, addressed to Daryl Mundis, Registrar of the Special Tribunal for Lebanon (reference No.:100/I.T./2013), Confidential and Ex Parte Annex A to the Order Pursuant to Rule 76(E).

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‘reasonable attempts have been made by the Tribunal and the Lebanese authorities to serve the indictment and arrest warrant on the Accused.’ The President ordered service of the indictment by alternative methods.

23. After the failure of the personal notification required under Rule 76, and Article 147 of the Lebanese Code of Criminal Procedure, as evidenced by the unsuccessful efforts to go directly to Mr. Merhi’s last known residence at the apartment in Dahyieh, the Acting Prosecutor-General moved to Article 148 of the Lebanese Code. This allows service of an indictment on a person with no known place of domicile to be effected by (i) posting of a copy of the document at the entrance to the person’s last known place of residence; (ii) communicating a copy to the mukhtar; and, (iii) posting a copy at the entrance of the issuing judicial authority.

24. The Acting Prosecutor-General instructed the CCIS to summon the mukhtars of his four possible residential addresses, in Bourj-El-Barajneh, Haret-Hreik, Zqaq-El-Blat in Beirut and of the village of Ain Qana in South Lebanon. The CCIS summoned the four mukhtars. None, however, attended on the day scheduled for the interview. 42

25. Copies of the indictment and the warrant for Mr. Merhi’s arrest were also affixed to the entrance of the Special Tribunal’s Beirut office in Monteverde, Beirut. The Acting Prosecutor-General also instructed the CCIS to monitor a 24 hour call number 70/243110 to receive any information about Mr. Merhi.

26. The Acting Prosecutor-General also instructed the CCIS to affix copies of the indictment and warrant of arrest at Mr. Merhi’s last known place of residence, to record their actions, and to photograph each act of service. Further to the Acting Prosecutor-General’s request and to execute their task, CCIS officers had several meetings with the Central Security Committee of Hezbollah.

27. On 5 November 2013, the CCIS met again with a Hezbollah official, in his office at the Hezbollah Central Security Committee in Beirut. According to the CCIS report, the official checked with the Head of the Committee, and then prevented the

42 CCIS record, No. 1455/302, 18 September 2013, attached to the report of the Acting Prosecutor-General of 24 September 2013.

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CCIS officers from going to Mr. Merhi’s addresses to execute the request for serving the documents by affixing them to his apartment and photographing the process. The CCIS officers reported that the Hezbollah official told them that they could not go there because Mr. Merhi’s family was very upset that his name had been circulated in the media as an accused in the case of the assassination of Prime Minister Rafik Hariri and his companions.43 The CCIS officers reported that they regarded this as a ‘pretext’ to prevent their entry to Dahyieh.

28. Noting the failure of the Acting Prosecutor-General to provide the mukhtars with the indictment and the warrant of arrest against Mr. Merhi, on 17 December 2013, the Registrar sent these documents by registered mail via Liban Post to the mukhtars of Bourj-El-Barajneh, Haret-Hreik, Zqaq-El-Blat and the village of Ain Qana in South Lebanon. On 20 December 2013 the Registrar informed the Trial Chamber that: i) the mukhtars of Haret-Hreik and Ain Qana had received the registered mail on 18 December 2013, ii) the delivery of the letter to the mukhtar of Zqaq El Blat was attempted twice, without success, following which a notice was left at his address, and iii) as of 20 December 2013 delivery of the letter to the mukhtar of Bourj-El-Barajneh had been unsuccessful.44

Alternative methods of service – Rule 76

29. On 10 October 2013, the President of the Tribunal, for the purpose of Rule 76 (E), comprehensively reviewed the attempts by the Lebanese authorities to serve the indictment and associated material on Mr. Merhi and to execute the arrest warrant. He concluded that they had been reasonable.45 Noting the unsuccessful attempts to personally serve Mr. Merhi, he ordered that the service of process be effected in an alternative manner, including by public advertisement. He requested the Registrar to take all reasonable steps to transmit a form of advertisement to the authorities of Lebanon, in particular to the Acting Prosecutor-General, to take all reasonable steps

43 CCIS record, No. 1602/302, 18 October 2013, attached to the report of the Acting Prosecutor-General of 6 November 2013.

44 Email from the Registrar to the Trial Chamber Legal Officers, 20 December 2013.

45 Order Pursuant to Rule 76(E), 10 October 2013.

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to notify the public of the existence of the indictment and to call upon Mr. Merhi to surrender to the Tribunal, or in any case to submit to its jurisdiction in accordance, among other things, with the relevant Lebanese procedures.

30. Rule 76 bis provides that the advertisement shall be ‘for publication in newspapers and/or for broadcast via radio, television and/or other media, including the internet’. The President also requested the Registrar to consider other means of disseminating the indictment in Lebanon, if appropriate, and in other countries, and of calling upon Mr. Merhi to submit to the Tribunal’s jurisdiction.46 The Special Tribunal has a Twitter account – which as of 20 December 2013 has 12,011 followers – a Facebook account and a Scribd feed.47

31. On the same date, at the Prosecution’s request,48 the Pre-Trial Judge partially lifted the confidentiality of the indictment.49 As a result, the Special Tribunal’s media office also published two media releases, one on the Rule 76 order and a second on the lifting of confidentiality of the indictment.50

32. On 11 October 2013, the Tribunal issued an advertisement of the indictment in the form of a poster (see below) in a media release. This was also affixed to the judicial notice board at the entrance to the Criminal Court of Cassation in Beirut.51 The Tribunal’s press office posted these announcements on Facebook and sent three tweets in English that included links to the Arabic version of the poster. The Acting

46 STL-13-04/I/PRES, Order pursuant to Rule 76(E), 10 October 2013, Disposition.

47 www.scribd.com/STLebanon.

48 STL-13-04/PT/PTJ (sic), Prosecution Request for Partially Lifting the Confidentiality of the Indictment, Confidential and Ex Parte with Confidential and Ex Parte Annex A, 4 October 2013.

49 STL-13-04/I/PTJ, Order on Partially Lifting the Confidentiality of the Indictment against Mr. Hassan Habib Merhi, 10 October 2013.

50 ‘STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut attack’, http://www.stl-tsl.org/en/media/press-releases/10-10-2013-stl-indicts-hassan-habib-merhi-in-14-february-2005-beirut-attack and ‘Prosecutor Farrell welcomes the Pre-Trial Judge’s Decisions Confirming the Indictment against Hassan Habib Merhi and Lifting confidentiality’, http://www.stl-tsl.org/en/media/press-releases/10-10-2013-prosecutor-farrell-welcomes-the-pre-trial-judges-decisions-confirming-the-indictment-against-hassan-habib-merhi-and-lifting-confidentiality.

51 CCIS record, No. 1602/302, 18 October 2013, attached to the report of the Acting Prosecutor-General of 6 November 2013.

http://www.stl-tsl.org/en/media/press-releases/10-10-2013-stl-indicts-hassan-habib-merhi-in-14-february-2005-beirut-attack

http://www.stl-tsl.org/en/media/press-releases/10-10-2013-stl-indicts-hassan-habib-merhi-in-14-february-2005-beirut-attack

http://www.stl-tsl.org/en/media/press-releases/10-10-2013-prosecutor-farrell-welcomes-the-pre-trial-judges-decisions-confirming-the-indictment-against-hassan-habib-merhi-and-lifting-confidentiality


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Prosecutor-General advertised the notice in five newspapers: L’Orient Le Jour,52 As-Safir,53 Al-Mustaqbal,54 The Daily Star,55 and An Nahar.56

33. This was on the same day that the Registrar sent the warrant of arrest poster to the Acting Prosecutor-General for further dissemination. This poster advertisement was headed,

WARRANT OF ARREST ISSUED BY THE SPECIAL TRIBUNAL FOR LEBANON

It contained two photographs of Mr. Merhi, and included the name, picture, biographical information and charges against Mr. Merhi. At the bottom was written,

IF YOU HAVE ANY INFORMATION CONCERNING THIS INDIVIDUAL, PLEASE CONTACT.

52 ‘Le Liban sollicité par le TSL pour la publication de l’affiche publique de Hassan Merhi’, 12 October 2013 and ‘Le TSL demande aux autorités libanaises de publier des affiches sur lesquelles figure Hassan Merhi’, 14 October 2013.

53 ‘The International tribunal confirms the indictment of Merhi’ (Unofficial translation), 11 October 2013.

54 ‘Fifth Hezbollah member accused of Hariri’s assassination’ (Unofficial translation), 11 October 2013.

55 ‘STL publishes posters of fifth Hezbollah suspect’, 11 October 2013.

56 An Nahar, 12 October 2013.

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Underneath were three boxes containing a dedicated telephone number for the Tribunal in the Netherlands and its Field Office in Beirut.57

34. This media release was covered by several media sources. The poster was published in full in Lebanese newspapers, including L’Orient Le Jour58 and An Nahar.59 NOW Lebanon Media,60 Naharnet,61 The Daily Star,62 Aliwaa,63 Al-Mustaqbal,64 As-

Safir65 and Al-Wasat66 (a Bahraini newspaper) published either those parts of the poster that included Mr. Merhi’s photograph, or his photograph.

Publicising and publishing Mr. Merhi’s identity in connection with the indictment

35. The Special Tribunal’s media office issued two media releases on 10 October 2013 headed ‘STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut attack’67 and ‘Prosecutor Farrell welcomes the Pre-Trial Judge’s Decisions Confirming the Indictment against Hassan Habib Merhi and Lifting confidentiality’,68 announcing

57 ‘Media advisory - STL requests that the Lebanese authorities take further steps to advertise new accused’, http://www.stl-tsl.org/en/media/press-releases/11-10-2013-stl-requests-that-the-lebanese-authorities-take-further-steps-to-advertise-new-accused .

58 ‘Le Liban sollicité par le TSL pour la publication de l’affiche publique de Hassan Merhi’, 12 October 2013 and ‘Le TSL demande aux autorités libanaises de publier des affiches sur lesquelles figure Hassan Merhi’, 14 October 2013.

59 An Nahar, 12 October 2013.

60 ‘STL publicizes arrest warrant against Merhi’ (Unofficial translation), 14 October 2013.

61 ’STL Indicts Fifth ‹Hizbullah Supporter› in Hariri Assassination’, 10 October 2013 and ‘STL Asks Lebanese Authorities to Publish Merhi’s Posters in the Media’, 11 October 2013.

62 ‘STL publishes posters of fifth Hezbollah suspect’, 11 October 2013.

63 ‘The Tribunal indicts a fifth accused in the assassination of Hariri’ (Unofficial translation), 11 October 2013.


65 ‘The International tribunal confirms the indictment of Merhi’ (Unofficial translation), 11 October 2013.

66 ‘The Special Tribunal for Lebanon asks the Lebanese authorities to take further measures to announce a new accused in the case of the assassination of Hariri’ (Unofficial translation), 14 October 2013.

67 ‘STL Indicts Hassan Habib Merhi in 14 February 2005 Beirut attack’, http://www.stl-tsl.org/en/media/press-releases/10-10-2013-stl-indicts-hassan-habib-merhi-in-14-february-2005-beirut-attack.

68 ‘Prosecutor Farrell welcomes the Pre-Trial Judge’s Decisions Confirming the Indictment against Hassan Habib Merhi and Lifting confidentiality’, http://www.stl-tsl.org/en/media/press-releases/10-10-2013-prosecutor-farrell-welcomes-the-pre-trial-judges-decisions-confirming-the-indictment-against-hassan-habib-merhi-and-

http://www.stl-tsl.org/en/media/press-releases/11-10-2013-stl-requests-that-the-lebanese-authorities-take-further-steps-to-advertise-new-accused



http://aliwaa.com/Article.aspx?ArticleId=181655



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that ‘The Pre-Trial Judge of the Special Tribunal for Lebanon has confirmed an indictment against Hassan Habib Merhi who is accused of being involved in the 14 February 2005 Beirut attack’. The Tribunal’s press office posted these announcements on Facebook and sent eight tweets including links to the two announcements in English.

36. All of the main Lebanese media reported this including Al-Akhbar,69 As-Safir,70 An Nahar,71 Al-Mustaqbal,72 Al Liwa,73 The Daily Star,74 L’Orient Le Jour,75 Al-Hayat,76 Ad-Diyar,77 National News Agency (NNA),78 Al-Joumhouria,79

lifting-confidentiality.

69 ‘The tribunal lifts confidentiality of a ‘public’ indictment: a fifth accused in the assassination of Hariri’ (Unofficial translation), 11 October 2013.

70 ‘The international tribunal confirms the indictment against Merhi’ (Unofficial translation), 11 October 2013, and ‘A new warrant of arrest from the International tribunal against Merhi’ (Unofficial translation), 15 October 2013.

71 ‘The international tribunal uncovers the accused of forging ‘Abu Adas’’(Unofficial translation), 11 October 2013; ‘The tribunal adds a new accused to the four others Farrell: Prosecution is working to present reliable and credible evidence’ (Unofficial translation), 11 October 2013 and ‘International warrant of arrest against Merhi’ (Unofficial translation), 15 October 2013.


73 ’The Tribunal indicts a fifth accused in the assassination of Hariri’ (Unofficial translation), in other two pages it published the complete Arabic version of the redacted public indictment under the title of ‘The indictment against the fifth accused Hassan Habib Merhi in assassination Hariri’ (Unofficial translation), 11 October 2013 and ‘A new Arrest Warrant against Hassan Merhi in the case of assassination of Hariri’ (Unofficial translation), 15 October 2013.

74 ‘STL names Hezbollah ‘supporter’ as fifth suspect’, 11 October 2013 and ‘Lawyers for latest STL suspect ask for trial suspension’, 14 October 2013.

75 ‘TSL: un cinquième suspect inculpé dans le procès Hariri’, 11 October 2013 and ‘Malvoyance’ (editorial), 13 October 2013.

76 ‘A fifth accused in the assassination of Hariri’ (Unofficial translation), 11 October 2013.

77 ‘The International Tribunal issues a warrant of arrest against Hassan Merhi and accuses him of (forging) Abu Adas ‘tape’ (Unofficial translation), 11 October 2013, and ‘The International Tribunal: A new warrant of arrest against Merhi who was involved in 14 February attack’ (Unofficial translation), 15 October 2015.

78 ‘STL requests Lebanese authorities take further steps to advertise new accused’, 11 October 2013, and ‘TSL: Mandat d’arrêt émis à l’encontre de Hassan Habib Merhi’, 14 October 2013.

79 ‘The International Tribunal adds a fifth accused’ (Unofficial translation), 11 October 2013; ‘STL issues arrest warrant against Hassan Habib Mehri’ (Unofficial translation), 14 October 2013, and ‘International warrant of arrest against the fifth accused’ (Unofficial translation), 15 October 2015.


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NOW Lebanon Media,80 and Naharnet.81 The content of the press release was also broadcast the same day on LBC TV,82 MTV,83 Télé Liban,84 OTV,85 Future TV,86 and Al Jadeed.87 The information was also disseminated on 10 October 2013 by pan-Arabic media including Al-Hayat,88 Al-Arabiya,89 Kuwait News Agency (KUNA),90 and Al-Rai,91 and on 11 October 2013 by Al-Jazeeria,92 and Asharq Al-Awsat.93 International media also covered the media releases.94

80 ‘Who is Hassan Merhi?’, 10 October 2013; ‘STL indicts new suspect in Hariri slaying’, 10 October 2013, and ‘STL publicizes arrest warrant against Merhi’, 14 October 2013.

81 ‘STL Indicts Fifth ‘Hizbullah Supporter’ in Hariri Assassination’, 10 October 2013.

82 ‘REPORT: Lebanon tribunal publishes arrest warrant for new suspect in 2005 Hariri killing’, 10 October 2013.

83 ‘Hassan Habib Merhi, the fifth indicted in Hariri’s assassination’, 10 October 2013, and ‘What Role Did the Fifth Indicted Suspect Play in Hariri Assassination?’, 11 October 2013.

84 Télé Liban, 10 October 2013.

85 OTV, 10 October 2013.

86 Future TV, 10 October 2013.

87 Al Jadeed, 10 October 2013.

88 ‘A fifth accused in the assassination of Hariri’ (Unofficial translation), 10 October 2013.

89 ‘U.N.-backed Hariri tribunal indicts fifth suspect’ (Unofficial translation), 10 October 2013.

90 ‘Lebanon Tribunal indicts Hassan Habib Merhi over 2005 Beirut attack’, 10 October 2013.

91 ‘The Special Tribunal for Lebanon announces an indictment against a fifth member of Hezbollah involved in the killing of Hariri’ (Unofficial translation), 10 October 2013.

92 ‘Tribunal indicts new suspect in Hariri murder’, 11 October 2013 (Al-Jazeera English).

93 ‘The International tribunal issues a warrant of arrest against a fifth accused from Hezbollah in the assassination of Hariri‘ (Unofficial translation), 10 October 2013.

94 The New York Times (‘Fifth Suspect Is Indicted in 2005 Killing of Ex-Lebanese Premier’, 10 October 2013); AP (Tribunal Indicts 5th Suspect in Hariri Slaying’, 10 October 2013), Reuters (‘Lebanon tribunal names new suspect in 2005 Hariri killing’, 10 October 2013, and ‘Nouveau suspect dans le procès du meurtre de Rafic Hariri’, 10 October 2013); AFP (‘UN-backed Hariri tribunal indicts fifth suspect’, 10 October 2013); BBC (‘Lebanon Hariri: Fifth suspect indicted for murder’, 10 October 2013); UPI (‘Fifth suspect named in Hariri assassination’, 10 October 2013); RTT (‘Arrest Warrant Issued For Fifth Suspect In Lebanese PM Hariri’s Assassination’, 10 October 2013); Washington Post (‘UN-backed court indicts 5th suspect in 2005 slaying of former Lebanese prime minister Hariri’, 10 October 2013); Le Monde (‘Un cinquième suspect inculpé pour l’assassinat de Rafic Hariri’, 10 October 2013); Deutsche Welle (‘Special Lebanon tribunal indicts fifth suspect in Hariri assassination’, 10 October 2013); Le Nouvel Observateur (‘Nouveau suspect dans le procès du meurtre de Rafic Hariri’, 10 October 2013); France 24 (‘Un cinquième membre du Hezbollah suspecté du meurtre de Rafic Hariri’, 10 October 2013); and La Presse (‘Liban: un cinquième suspect inculpé dans le procès Hariri’, 10 October 2013).

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37. Between 10 and 30 October 2013, the Special Tribunal’s spokesperson conducted interviews in Arabic and English with print, electronic and broadcast media including the Daily Star in Lebanon,95 the pan-Arabic media outlet Al Hayat,96 and international media including The New York Times.97 Mr. Merhi’s name and his alleged connection with the attack of 14 February 2005 were specified in each interview. The interviews were also covered by the media agencies AFP,98 Associated Press,99 and Reuters100 the content of which is published worldwide by many different news outlets. The spokesperson was also interviewed on 13 October 2013 on Ousbou Bi Saa, a popular current affairs program on Lebanese Al Jadeed TV, during which Mr. Merhi’s full name and the indictment alleging his participation in the 14 February 2005 attack were outlined.

38. On 28 October 2013, the Tribunal issued a ‘Judicial Brief’ summarising judicial developments at the Tribunal. This brief was distributed in Arabic, French and English to the media, diplomatic community and the general public, and included a large section about the indictment against Mr. Merhi including his photograph, biographical information and charges against him. It is also on the Special Tribunal’s website.101

Broadcasting of an audio recording of the charges

39. On the 14 October 2013, the Special Tribunal issued a media release entitled ‘A public service announcement by the Special Tribunal for Lebanon’, which included a link to an audio recording of the charges against Mr. Merhi in Arabic, French and English.102 This public service announcement, which was intended for radio broadcast,

95 ‘STL names Hezbollah ‘supporter’ as fifth suspect’, 10 October 2013.

96 ‘The Special Tribunal for Lebanon issues a warrant of arrest against a fifth accused in the assassination of Hariri‘ (Unofficial translation), 10 October 2013.

97 ‘Fifth Suspect Is Indicted in 2005 Killing of Ex-Lebanese Premier’, 10 October 2013.

98 ‘UN-backed Hariri tribunal indicts fifth suspect’,13 October 2013.

99 ‘Tribunal Indicts 5th Suspect in Hariri Slaying’, 10 October 2013.

100 ‘Lebanon tribunal names new suspect in 2005 Hariri killing’, 10 October 2013.

101 https://www.stl-tsl.org/en/media/judicial-brief.

102 ‘A public service announcement by the Special Tribunal for Lebanon‘, http://www.stl-tsl.org/en/media/press-

https://www.stl-tsl.org/en/media/judicial-brief

http://www.stl-tsl.org/en/media/press-releases/14-10-2013-a-public-service-announcement-by-the-special-tribunal-for-lebanon

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further specified that it was ‘part of a public advertisement campaign to inform the accused of his rights and to also invite the public to submit any information on the whereabouts of the accused to the Lebanese authorities.’ The recording also invited Mr. Merhi to participate in the proceedings, as, ‘by participating, the accused can fully defend themselves against the charges and evidence presented against them.’ The Tribunal’s press office posted this on Facebook and sent three tweets in English linked to the radio announcement in Arabic and English.

40. This radio message was covered by media including: NNA,103 Naharnet,104 Lebanese Broadcasting Corporation International (LBCI),105 An Nahar,106 Al Jadeed,107 Al-Mustaqbal,108 Al Kalima online,109 Sada el Balad,110 and The Tower111 on 14 October 2013, and, on 15 October 2015, by the Daily Star,112 L’Orient Le Jour,113 and As-Safir.114

releases/14-10-2013-a-public-service-announcement-by-the-special-tribunal-for-lebanon.

103 ‘STL makes public service announcement concerning accused Hassan Merhi’, 14 October 2013.

104 ‘STL Issues Public Arrest Warrant against Fifth Suspect in Hariri Assassination’, 14 October 2013.

105 ‘STL issues new arrest warrant against Hassan Habib Merhi‘, 14 October 2013.

106 ‘The International Tribunal reveals the accused of ‘Abu Adas fabrication’’ (Unofficial translation), 14 October 2013.

107 Al Jadeed, 14 October 2013.

108 ‘The International Tribunal issues a new warrant of arrest against Hassan Habib Merhi’ (Unofficial translation), 14 October 2013.

109 ‘The International Tribunal issues a warrant of arrest against Hassan Habib Merhi in the case of the assassination of Hariri‘ (Unofficial translation), 14 October 2013.

110 ‘The International Tribunal issues a warrant of arrest against a potential member of Hezbollah in the assassination of Hariri‘ (Unofficial translation), 14 October 2013.

111 ‘Amid Growing Criticism of Hezbollah-Driven Destabilization, Prosecutors Issue Fifth Assassination Indictment’, 14 October 2013.

112 ‘STL urges Hezbollah suspect to participate in trial proceedings‘, 15 October 2013.

113 ‘Annonce publique du TSL pour informer l’accusé Merhi de ses droits’, 15 October 2013.

114 ‘A new warrant of arrest by the International tribunal against Merhi’ (Unofficial translation), 15 October 2013.

http://www.stl-tsl.org/en/media/press-releases/14-10-2013-a-public-service-announcement-by-the-special-tribunal-for-lebanon

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Publicising the President of the Tribunal’s public statement of 21 October 2013

41. On 21 October 2013, the Tribunal published a statement by its President calling on Mr. Merhi to surrender himself to the custody of the Special Tribunal.115 The Tribunal’s press office also posted the statement on Facebook and sent 14 tweets in Arabic and English linking to the statement in both Arabic and English. The statement read in part,

The Special Tribunal for Lebanon has announced the confirmation of an indictment accusing Hassan Habib Merhi of involvement in the 14 February 2005 Beirut attack for which four other accused are to be tried in absentia; that trial has a tentative start date (13 January 2014).

The Lebanese authorities have so far been unable to locate Mr Merhi. I have therefore ordered the service of the indictment in alternative modes, which include public advertisement. If, following such procedures, Mr Merhi has not been brought under the Tribunal’s authority, the Trial Chamber will be asked to decide whether to initiate proceedings against him in absentia.

I address both Mr Merhi and also the people of Lebanon. As to Mr Merhi, I invite you to consider whether you are prepared to face the Special Tribunal with the help both of the Defence Office headed by Maître François Roux and of the counsel he would assist you to obtain if that is your wish.

42. This statement was covered in the Lebanese media on 21 October 2013 by: An Nahar,116 NNA,117 Naharnet,118 KUNA,119 Now Lebanon Media,120 Lebanon Files,121

115 ‘Statement of Judge Baragwanath, President of the Special Tribunal of Lebanon’, http://www.stl-tsl.org/en/media/press-releases/21-10-2013-statement-of-judge-baragwanath-president-of-the-special-tribunal-of-lebanon.

116 ‘The Special Tribunal for Lebanon confirms the indictment against Merhi‘ (Unofficial translation), 21 October 2013.

117 ‘Le TSL annonce la confirmation d’un acte d’accusation à l’encontre de Hassan Merhi’, 21 October 2013.

118 ‘STL: Fifth Suspect in Hariri Assassination May Be Tried in Absentia if He is Not Found’, 21 October 2013.

119 ‘Lebanon Tribunal invites new accused in Hariri case to appear before court’, 21 October 2013.

120 ‘The Special Tribunal for Lebanon confirms the indictment against Hassan Merhi’, 21 October 2013.

121 ‘The President of the Special Tribunal for Lebanon: We do not intervene in Lebanon’s politics and I ask the Lebanese to assist us’ (Unofficial translation), 21 October 2013.

http://www.stl-tsl.org/en/media/press-releases/21-10-2013-statement-of-judge-baragwanath-president-of-the-special-tribunal-of-lebanon



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Al-Watan Al-Arabi122 and United Press International (UPI).123 The next day it was reported by The Daily Star,124 L’Orient Le Jour,125 As-Safir,126 Al-Mustaqbal,127 Al-Joumhouria,128 Al-khabar,129 and Al-wafed.130

43. On 13 December 2013, the Tribunal’s web-site published a further appeal to Mr. Merhi from the President of the Special Tribunal. It read,

Seven weeks ago, on 21 October 2013, I invited you to consider whether you are prepared to face the Special Tribunal for Lebanon to answer the charges in the indictment. These are very serious charges, including acts of terrorism and murder. I urge you to get legal advice and appoint a lawyer to represent you before the Tribunal. As an alternative to appearing in person in the Netherlands, you may have the right to participate in hearings by video-conference.

122 ‘‘Hariri Tribunal’ indicts a fifth (member) of ‘Hezbollah’’ (Unofficial translation), 21 October 2013.

123 ‘Tribunal needs help with 5th Hariri suspect’, 21 October 2013.

124 ‘STL president calls on fifth suspect to face justice’, 22 October 2013.

125 ‘Baragwanath envisage le procès par défaut pour le cinquième accusé dans l’affaire Hariri’, 22 October 2013.

126 ‘The International tribunal invites Merhi to appear before it’ (Unofficial translation), 22 October 2013.

127 ‘The Tribunal confirms the accusation of Merhi’s involvement in the assassination of Hariri’(Unofficial translation), 22 October 2013.

128 ‘STL: Baragwanath’s statement is not considered to be a new indictment’(Unofficial translation), 22 October 2013.

129 ‘The case of Hariri is to be considered on 13 January’ (Unofficial translation), 22 October 2013.

130 ‘The International tribunal considers the case of Hariri on 13 January’ (Unofficial translation), 22 October 2013.

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44. This further appeal was covered by media including: Naharnet,131 El-Nashra,132 Al-Mustaqbal,133 Al-Dostoor,134 MTV,135 Al Yawm Al-Sabeh,136 Al Jareeda,137 Tayyar.org,138 KUNA,139 NNA,140 and L’Orient Le Jour.141

Publicity and media coverage of the indictment in the Ayyash case

45. The Ayyash indictment is in substance the same as that against Mr. Merhi, containing charges arising out the same factual allegations relating to the same events of 14 February 2005. Mr. Merhi is a co-accused of the four Accused in the Ayyash case and the Merhi indictment makes it evident that he is the person referred to as ‘S3/S15’ in the amended Ayyash indictment. The main procedural difference is that Mr. Merhi was indicted two years after the four co-Accused.

46. The Trial Chamber issued its decision to proceed to trial in absentia against Mr. Ayyash, Mr. Badreddine, Mr. Oneissi and Mr. Sabra on 1 February 2012. But before deciding to proceed to trial in absentia, the Trial Chamber studied the extensive

131 ‘STL President Again Urges Merhi to Appear before Court, Appoint Lawyer’, 14 December 2013.

132 ‘Baragwanath by a letter to Merhi: to get a legal advice and appoint a lawyer to represent you’ (Unofficial translation), 13 December 2013.

133 ‘Baragwanath invites the accused Merhi to appoint a lawyer’ (Unofficial translation), 14 December 2013.

134 ‘The International Tribunal invites an accused of the assassination of Hariri to appear via video conference’ (Unofficial translation), 13 December 2013.

135 ‘Baragwanath calls on Hassan Habib Merhi to get legal advice, appoint lawyer’, 13 December 2013.

136 ‘The International Tribunal invites an accused in the assassination of Hariri to appear via conference’ (Unofficial translation), 13 December 2013.

137 ‘The International Tribunal invites the accused in the assassination of Hariri to appear via conference’ (Unofficial translation), 13 December 2013.

138 ‘What was the letter of the President of the Special Tribunal to the accused in the assassination of Hariri?’ (Unofficial translation), 13 December 2013.

139 In both of its English and Arabic websites: ‘Special Tribunal for Lebanon calls on accused Habib Merhi to get a lawyer’, 13 December 2013.

140 ‘Baragwanath to Hassan Merhi: I urge you to get legal advice and appoint lawyer’, 13 December 2013.

141 ‘TSL: 2e appel du juge Baragwanath à Hassan Habib Merhi l’invitant à se livrer à la justice’, 14 December 2013.

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media publicity given to the possible indictment of the four accused before they were indicted, concluding, at paragraph 63 of the decision,

The Lebanese public has thus known since at least 17 January 2011 of the existence of an indictment related to the events of 14 February 2005, and, unofficially (but nonetheless accurately) since 30 June 2011 of the names of those suspected to be accused. And officially, since 29 July 2011, of the precise identities of those actually indicted. Each step in this process has been extensively covered by the Lebanese media. Each of the four Accused must have known, from the extent of the media coverage - at least unofficially from 30 June 2011 - that he was a possible accused.

47. And further at paragraph 60,

From the Trial Chamber’s examination of this media coverage it can be safely concluded that, in a country of Lebanon’s size and scale of urbanization, almost every adult by now would have some knowledge of (a) the events of 14 February 2005 (b), the fact of the indictment of 30 June 2011, and (c) the connection of the identities of the four Accused with the indictment.

48. After the publication of the indictment and the subsequent publicity, the Trial Chamber concluded, at paragraph 71, ‘Between 17 and 19 August 2011, virtually all Lebanese Arabic language media published the indictment in print, in television and radio broadcasts and on news web sites’. The decision analysed the media penetration in Lebanon, concluding, at paragraph 59,

The Trial Chamber has reviewed a wealth of material, published in the Lebanese and international print, broadcast and electronic media, connecting the indictment with the names and faces of Mr Ayyash, Mr Badreddine, Mr Oneissi and Mr Sabra. In assessing whether this information would have independently informed the four Accused that they had been indicted, the Trial Chamber has taken into account the media concentration and hence the likely penetration of such information in a geographically compact country of the size and population of Lebanon. The ‘Lebanese media’ includes approximately thirty-two magazines and fourteen daily newspapers, eight widely watched domestic television stations, and sixteen domestic radio stations. Many have their own web sites, also carrying news. Lebanese households, moreover, have access to numerous satellite and cable news stations.

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49. This statistical information remains unchanged. In relation to the amount of media publicity that was given to the Ayyash indictment, the Trial Chamber concluded, at paragraph 106,

The evidence establishes that massive if not blanket coverage was given in the Lebanese media both to the indictment itself and to connecting Mr Ayyash, Mr Badreddine, Mr Oneissi and Mr Sabra with the indictment. In the totality of these circumstances it is inconceivable that they could be unaware that they have been indicted.

50. The Trial Chamber’s decision to proceed to trial in absentia for the four accused, and the subsequent appointment of counsel to represent them, was also widely covered by the Lebanese media. Lebanese outlets including Naharnet,142 L’Orient Le Jour,143 An Nahar, El Balad, Al Liwa,144 Al Joumhouria, As-Safir, Al-Akhbar,145 NNA, NOW Lebanon,146 and The Daily Star,147 reported the decision. It was also reported by pan-Arabic148 and international media.149

51. Within days of this decision, the then Prosecutor, Mr. Daniel Bellemare, announced that he would soon file a new indictment, which would include a fifth accused. The Prosecutor’s statement on this new fifth accused was also substantially

142 ‘STL Trial Chamber Decides to Try Accused in Absentia’, 1 February 2012.

143 ‘Le TSL décide de juger par défaut les accusés du Hezbollah’, 2 February 2013 and ‘TSL : les avocats des accusés commis d’office’, 8 February 2012.

144 ‘Trial Chamber of the International Tribunal decides to try the four accused in the assassination of Hariri in absentia’ (Unofficial translation), 2 February 2012.

145 ‘International Tribunal decides to run trials in absentia’ (Unofficial translation), 2 February 2012.

146 ‘STL decides to move ahead with in absentia trials’, 2 February 2012 and ‘STL assigns defence attorneys for Hezbollah men’, 3 February 2012.

147 ‘2012 trial a ‘goal’ for STL’, 2 February 2012.

148 Al Jazeera (‘A trial in absentia for Hariri suspects’ (Unofficial translation), 1 February 2012) and KUNA (‘Special Tribunal for Lebanon will try suspects in the assassination of Hariri in absentia’ (Unofficial translation), 1 February 2012.

149 AFP (‘Lebanon court to try Hariri murder suspects in absentia’, 1 February 2012 and ‘Lebanon court selects lawyers for Hariri accused’, 2 February 2012); CNN (‘Hariri assassination suspects to be tried in absentia’, 2 February 2012); AP (‘STL to move ahead with absentia trial’, 2 February 2012); Jerusalem Post (‘Lebanon tribunal to try Hariri suspects in absentia’, 1 February 2012); Reuters; Policy Point) ‘Hezbollah vs. The World: The STL Announces it Will Conduct In Absentia Trial’, 8 February 2012).

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reported by the Lebanese major newspapers and media, such as L’Orient Le Jour,150 Al Liwa,151 Al Akhbar (English),152 An Nahar,153 Naharnet,154 and Central News Agency.155

52. On 8 February 2012 the Prosecutor confidentially filed an application to amend that indictment to add Mr. Merhi. In March 2012, a month after this decision was issued, at least eight Lebanese media outlets reported that Mr. Merhi was the fifth accused in the Ayyash case who had also been involved in the Hariri attack. These included a report on 8 March 2012 on Al Jadeed TV introduced as ‘Al Jadeed discovers the fifth accused’ that was then covered by at least six other Lebanese media outlets, and an article on the same topic, on 28 March 2012, in Al-Akhbar newspaper. His photograph was not shown. The reporting is detailed at paragraphs 54-57 below.

Media speculation that Mr. Merhi was involved in the February 2005 attack before the indictment was made public

53. In making its decision to proceed to trial in absentia against Mr. Merhi, the Trial Chamber has also examined the media publicity given to his alleged role in the events of 14 February 2005 before the indictment was made public on 10 October 2013.

54. In March 2012, some 17 months before the confirmation of the indictment, at least eight Lebanese media outlets reported that Mr. Merhi was a fifth but unindicted accused who had been involved in the Hariri attack in the case of Prosecutor v. Ayyash, Badreddine, Sabra and Oneissi. On 8 March 2012, Al Jadeed, a Lebanese

150 ‘TSL : bientôt un cinquième accusé ?’, 7 February 2012.

151 ‘A fifth accused in the Hariri crime?’ (Unofficial translation), 2 February 2012.

152 ‘Bellemare to Siniora: Fifth STL Suspect to be Named’, 6 February 2012.

153 ‘Bellemare informed Mikati that he is committed to submitting second indictment by end of February’ (Unofficial translation), 6 February 2012 and and ‘Youssef to An Nahar: Rules allow confidential indictment in terms of content and timing from Bellemare’ (Unofficial translation), 9 February 2012.

154 ‘Bellemare Informed Saniora that 2nd Indictment in Hariri Case to Be Complete in February’, 5 February 2012.

155 ‘Bellemare prepares a report with the results of his investigation for his successor... a fifth accused soon and the Tribunal is convinced of the inability to apprehend the four accused’ (Unofficial translation), 7 February 2012.

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TV channel report entitled ‘Al Jadeed discovers the fifth accused’ was broadcast during its evening news bulletin. The reporter announced that,

insider sources from the Tribunal informed Al Jadeed that ‘H.M.’ are the initials of the fifth accused used by the Special Tribunal for the crime of assassination of the Prime Minister Hariri, he is Lebanese, his father is H.M. as well, and his mother is Latifa. A. He was born in December 1965, he is from Zekak El Blat, and his civil register number consists of four digits.

55. The reporter then stated that ‘the mission is easy now’ and by searching the electoral list he concluded, ‘it appears clearly that H.M. is Hassan Merhi, his father is Habeeb Merhi, and his mother is Latifa Abbas and his civil register number is 1126’. He also added that, ‘it appears that Hassan belongs to Hezbollah, but that he does not hold a leadership or highly ranked position’.156

56. Recent ratings surveys have revealed that Al Jadeed is watched by 45% of the Lebanese television viewers and that its morning and evening news and political programs are the top rating in their category in Lebanon.157 The Al Jadeed report was also covered by other media outlets including: An Nahar, Al Liwa, Al-Seyassah, l’Orient Le Jour,158 El-Nashra, Only Lebanon, and 14 March.159

57. On 28 March 2012, Al-Akhbar newspaper published a short report entitled ‘Hassan Merhi at the STL: Head of the ‘Purple Network’’.160 Al-Akhbar reported that the ‘information available indicates that the name which former Prosecutor Daniel Bellemare asked to be added to the list of those accused of involvement in the Hariri assassination is that of Hassan Merhi’ and ‘Merhi headed the group that used the ‘purple’ cell phone network and whose job was confined to tasks involving Abu

156 Al Jadeed TV, ‘Al Jadeed discovers the fifth accused’, 8 March 2012.

157 Survey of Beirut Centre for research and information, reported in ‘Who watches what in Lebanon? A TV outside the trench is wanted’ (Unofficial translation), Al-Akhbar, 13 October 2013, and ‘Al Jadeed is the first and the most viewed’, (Unofficial translation), 13 October 2013. According to the survey, 81% of Lebanon’s TV viewing Shia population watched that channel.

158 An Nahar, 9 March 2012; Al Liwa, 9 March 2012, and Al-Seyassah, 9 March 2012.

159 El-Nashra, ‘Al Jadeed: the fifth accused in the case of the assassination of Hariri is Hassan Merhi’, 8 March 2012; 14 March (news website), ‘The Tribunal sources: The fifth accused in Hariri case is Hassan Merhi and he belongs to Hezbollah’, 8 March 2012; Only Lebanon, 8 March 2012.

160 Al-Akhbar, ‘Hariri Investigation: A Star Witness is Born’, 28 March 2012.

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Adas’. It further detailed the role of Mr. Merhi and his relationship with the other accused. The Al-Akhbar article was published verbatim by some other news websites including Al Bawaba,161 and was reported and analysed by others, including Al-Akhbar Secrets which speculated that the Special Tribunal must have been infiltrated by Al-Akhbar newspaper.162

58. The indictment against Mr. Merhi, made public only on 10 October 2013, does indeed allege that Mr. Merhi was involved in the ‘purple network’, as did the amended indictment filed on 8 February 2012 by the former Prosecutor, Mr. Daniel Bellemare, attempting to amend the Ayyash indictment to add Mr. Merhi as a fifth Accused. That attempt to amend the Ayyash indictment remains a confidential and ex parte filing, but was the subject of an Appeals Chamber decision in March 2012 in which it dismissed as inadmissible the Pre-Trial Judge’s referral of questions under Rule 68 (G).163 The fact that the Prosecution had sought leave to amend the Ayyash indictment by adding a fifth accused was public, but the identity of the fifth potential accused was not officially public.

59. On 13 August 2013, thirteen days after the confirmation of the then confidential indictment against Mr. Merhi, Al Jadeed TV broadcast that the Special Tribunal for Lebanon was about to indict a fifth accused, naming Mr. Merhi as this person.164 The Al Jadeed broadcast was picked up and reported by Al Liwaa,165 L’Orient Le Jour,166 El Nashra,167 and Janoubia.168

161 ‘Hariri Tribunal Has A New Key Witness’, 5 April 2012.

162 ‘STL has been infiltrated: Al-Akhbar newspaper and Ahmad Libdeh’, 29 March 2012.

163 STL, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, STL-11-01/PT/AC, Decision on the Pre-Trial Judge’s request pursuant to Rule 68 (G), 29 March 2012.

164 Al Jadeed TV, News bulletin, 13 August 2013.

165 ‘The International Tribunal: An amended indictment adds a fifth accused to Hariri assassination’, 14 August 2013.

166 ‘TSL: ‘Des révélations sensationnelles’ l’an prochain, promet Youssef’, 14 August 2013.

167 ‘Al Jadeed: The International Tribunal heads to add Hussein Merhi as an accused in the assassination of Hariri’, 13 August 2013.

168 ‘The International tribunal: A fifth accused in the assassination of Hariri from Hezbollah’, 13 August 2013.

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Prosecutor’s attempts in June 2012 to interview Mr. Merhi as a suspect

60. In June 2012 – after failing to have the Ayyash indictment amended by adding Mr. Merhi to it as a fifth accused – and several months after the accurate media speculation that Mr. Merhi was the fifth accused, the Prosecutor sought the assistance of the Lebanese authorities to interview him as a suspect.169

61. Acting under the Lebanese Prosecutor-General’s instructions, members of the CCIS sought to find Mr. Merhi in his last known residence in Dahyieh, Bourj-El-Barajneh, Beirut on 20, 22 and 27 June 2012. However, they did not find him there. The Acting Prosecutor-General reported:

• On 20 June 2012, following their coordination with the Central Security Committee of Hezbollah, CCIS officers went to the above-mentioned address. Upon their arrival they entered the building and went up to the seventh floor to the residence of Mr. Merhi. They knocked on the door of his residence and rang the doorbell several times and remained in front of the door for about ten minutes, but no one answered the door. They then left the building to carry out investigations and inquiries in order to determine his whereabouts.170

• On 22 June 2012, CCIS officers went again to the residential address of Mr. Merhi in Bourj-El-Barajneh. They knocked on the door of his residence several times but no one answered. They ascertained that the residence had no occupants.171

• On 27 June 2012, CCIS officers went again to the above-mentioned residence address of Mr. Merhi and went to the seventh floor of the Gardenia building. They knocked on the door several times, but no one answered. Their investigations in the area have shown that no one currently lives in the house.172

169 Request for assistance from the Prosecutor of the Special Tribunal for Lebanon to the Government of Lebanon, 5 June 2012.

170 CCIS record, No. 1005/302, 21 June 2012, attached to the report of the Acting Prosecutor-General of 3 October 2013.



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• CCIS officers went afterwards on the same day to the Office of the mukhtar of Bourj-El-Barajneh, and took his statement. According to the mukhtar Mr. Merhi was a resident in El-Roueiss, Gardenia building behind the Sayyed Al Shuhada Association. The mukhtar stated that he had no personal knowledge of Mr. Merhi. According to his information acquired through his frequent visits to the area and his personal knowledge of many of its residents because it is administratively part of Bourj-El-Barajneh, Hassan Habib Merhi is currently not in the Gardenia building. The mukhtar does not know his place of residence or his whereabouts. The mukhtar told CCIS officers that Mr. Merhi does not vote in Bourj-El-Barajneh.173

62. The Trial Chamber is thus satisfied that as of 27 June 2012, some three months after extensive reporting in the Lebanese media that he was the fifth accused in the Ayyash case, Mr. Merhi could not be located at his last known place of residence in Dahyieh.

APPLICABLE LAW FOR PROCEEDING TO TRIAL

63. Article 22 of the Statute of the Special Tribunal authorises a Trial Chamber to conduct trials in absentia,

1. The Special Tribunal shall conduct trial proceedings in the absence of the accused, if he or she:

(a) Has expressly and in writing waived his or her right to be present;

(b) Has not been handed over to the Tribunal by the State authorities concerned;

(c) Has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.

64. Before initiating proceedings in absentia, the Trial Chamber must determine whether the requirements of Rule 106 have been met, namely,174


174 STL-11-01/I/TC, Decision to hold trial in absentia, 1 February 2012, footnote 38: ‘A difference exists between

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(A) Where the accused:

i) has expressly and in writing waived his right to be present at proceedings before the Tribunal;

ii) has not been handed over to the Tribunal by the State authorities concerned within a reasonable time; or

iii) has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance before the Tribunal and to inform him of the charges by the Pre-Trial Judge;

the Trial Chamber shall conduct proceedings in absentia.

(B) Where the accused is not present on account of the failure or refusal of the relevant State to hand him over, before deciding to conduct proceedings in absentia, the Trial Chamber shall: (i) consult with the President and ensure that all necessary steps have been taken with a view to ensuring that the accused may, in the most appropriate way, participate in the proceedings; and (ii) ensure that the requirements of Article 22 (2) of the Statute have been met.

65. Rule 106 (A) (iii) contains several overlapping considerations. The first is that the Trial Chamber must be satisfied that an accused has absconded or cannot be found. The second is that all reasonable steps have been taken to secure the appearance of the accused before the Tribunal. The third, concurrent with the second,

the English and French versions of Rule 106. The English version uses the words ‘shall conduct proceedings in absentia’ whereas the French provides ‘peut décider d’engager une procedure par défaut’. The English version of Rule 106 follows the wording of Article 22 of the Statute in English, French (‘le Tribunal conduit le procès en l’absence de l’accusé’) and in Arabic. The English and Arabic versions of Rule 106 are thus more consistent with Article 22, as written in the Tribunal’s three official languages. Applying the rules of statutory interpretation relating to texts in different languages ‘the meaning which best reconciles the texts, having regard to object and purpose [of the treaty]’ in Article 33 (4) of the 1969 Vienna Convention on the Law of Treaties, the Trial Chamber accordingly defers to the English and Arabic versions in preference to the French version of Rule 106 (see also the discussion in the decision of the Appeals Chamber, STL-11-01/I/AC/R 176bis, Interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging, 16 February 2011, para. 26, footnotes 40-41, referring to the ICTY and ICTR’s use of the Convention in interpreting the Statutes and Rules of those Tribunals).’

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is that all reasonable steps have been taken to inform the accused of the charges in the indictment.175

66. With respect to an accused person’s knowledge of the charges against them, the Appeals Chamber interpreted these provisions in conformity with the applicable standards of international human rights law, concluding that in absentia trials are possible only where:

i) reasonable efforts have been taken to notify the accused personally;

ii) the evidence as to notification satisfies the Trial Chamber that the accused actually knew of the proceedings against them; and that,

iii) it does so with such degree of specificity that the accused’s absence means they must have elected not to attend the hearing and therefore have waived their right to be present.176

67. The Appeals Chamber also expressly noted, ‘there is no requirement under the Tribunal’s Statute or Rules, or under human rights law that the Trial Chamber must receive positive evidence of the accused’s knowledge, or that notification must be carried out officially and in person. Rather, the Trial Chamber must be satisfied that the three elements set out above are met on the basis of the available evidence before it. That may be done by inference from the circumstances.’177

175 STL-11-01/I/TC, Decision to hold trial in absentia, 1 February 2012, footnote 41: ‘The Trial Chamber resolves the ambiguity in the wording of the English version of the Rules which may appear to require the Pre-Trial Judge to take all reasonable steps to secure an appearance and to inform the accused of the charges, by giving the Rule is natural meaning, namely, that the charges have been confirmed by the Pre-Trial Judge, as is clear from the French and Arabic version of the Rules’.

176 STL-11-01/PT/AC/AR126.1, Corrected Version of Decision on Defence Appeals against Trial Chamber’s Decision on Reconsideration of the Trial in absentia Decision, 1 November 2012, para. 31.

177 Corrected Version of Decision on Defence Appeals against Trial Chamber’s Decision on Reconsideration of the Trial in absentia Decision, 1 November 2012, para. 32.

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SUBMISSIONS

68. To assist its determination of whether to initiate proceedings in absentia, the Trial Chamber, on 3 December 2013, sought written submissions from the Office of the Prosecutor, Mr. Merhi, and the Defence Office, by 9 December 2013.178

Prosecution’s submissions regarding Rule 106

69. The Prosecution filed written submissions, indicating that efforts to try to locate Mr. Merhi have been on-going since June 2012 but that the Lebanese authorities had been unable to find him.179 The Prosecution submitted that, given the present security situation in Lebanon, the Lebanese authorities have taken all reasonable steps available to secure Mr. Merhi’s appearance, and that these are consistent with those undertaken with respect to the four accused in the Ayyash case.180

70. In addition, public advertisements have been published in major national, regional and international newspapers and public announcements made via broadcast and social media.181 According to the Prosecution, there is no information to suggest that Mr. Merhi has waived in writing his right to be present and regardless of whether he has absconded, he has not been found and his whereabouts are presently unknown.182

71. The Prosecution acknowledged that the security situation in Lebanon had deteriorated since February 2012 when the Trial Chamber decided to proceed to a trial in absentia in the Ayyash case. This should be considered in assessing the steps taken by the Lebanese authorities in trying to secure Mr. Merhi’s appearance before the Tribunal.183

178 STL, The Prosecutor v. Hassan Habib Merhi, STL-13-04/I/TC, Scheduling order in respect of Rule 106 of the Rules of Procedure and Evidence, 3 December 2013.

179 Prosecution submissions pursuant to Rule 106, Confidential, 9 December 2013, paras 2, 12 and 13. Public Redacted Version dated 18 December 2013 (‘Prosecution submissions’).

180 Prosecution submissions, para. 3.

181 Prosecution submissions, para. 4.

182 Prosecution submissions, paras 7, 8, 11 and 13.

183 Prosecution submissions, paras 20 – 23.

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72. With respect to Mr. Merhi’s knowledge of the charges against him, the Prosecution submits that sufficient efforts have been made by the Lebanese authorities to inform him of the charges. While accepting that the Lebanese authorities have been unable to affix the indictment at any of the addresses associated with Mr. Merhi, the Prosecution submits that the Lebanese authorities have undertaken reasonable steps to serve the indictment on him personally by visiting or investigating the relevant addresses.184 Significant efforts have also been made to inform Mr. Merhi of the charges against him by public advertisement,185 and by the Tribunal itself through press releases and media advisories, interviews, the use of social media and a direct statement by the President of the Tribunal.186

73. The Prosecution concluded that the present security situation in Lebanon prevented the Lebanese authorities from taking steps in certain areas where the conditions of security are precarious. The Trial Chamber should therefore determine, in the prevailing circumstances, that all reasonable steps have been taken to inform Mr. Merhi of the charges against him. The Trial Chamber should thus proceed to trial in absentia against Mr. Merhi.187

Defence Office submissions regarding Rule 106

74. By contrast, the Defence Office made no substantive submissions, claiming that before any could be made, it needed to see four additional documents, those being three internal Tribunal memoranda and an unredacted copy of the Pre-Trial Judge’s confidential decision confirming the indictment against Mr. Merhi. The Defence Office, however, otherwise had copies of the same documents relied upon by the Prosecution making its substantial submissions. On 9 December 2013, by motion, the Defence Office requested these four documents. The Trial Chamber then emailed the three internal memoranda to both the Defence Office and the Prosecution, but

184 Prosecution submissions, paras 28 and 33.




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saying that they were of minor significance and that submissions on those documents were not required.

75. The three documents are merely internal memoranda between the Registry and the President’s Office, or Trial Chamber, seeking and forwarding documents within the Tribunal. The Trial Chamber, however, had already provided the Defence Office with the documents attached to the memoranda (namely the media information referred to above) for the express purpose of making the submissions. These internal memoranda are inconsequential and irrelevant. The unredacted decision of the Pre-Trial Judge confirming the indictment is likewise immaterial to a decision under Rule 106. The redactions are of the names of victims and of an investigative procedure. The Defence Office has a public redacted version of the decision in which paragraphs 79–82 specifies the need to preserve its confidentiality.188 On 9 December 2013, the Defence Office filed some observations but expressed them to be ‘without prejudice’ to receiving the documents requested.189 The submissions, however, were not substantive and have not assisted the Trial Chamber’s determination of the issue. No further submissions were filed by the Defence Office and the Trial Chamber expresses its disappointment about this unnecessary course of events.

Submissions for Mr. Merhi regarding Rule 106

76. The Trial Chamber instructed the Registrar to take the necessary steps to notify Mr. Merhi of the scheduling order requesting submissions.190 The Registry informed the Trial Chamber on 5 December 2013 that the Acting Prosecutor-General had received the Registrar’s letter requesting him to serve the scheduling order on Mr. Merhi.191

188 STL-13-04/I/PTJ, Public redacted version of the ‘Decision relating to the examination of the indictment of 5 June 2013 issued against Mr. Hassan Habib Merhi’ dated 31 July 2013, 11 October 2013.

189 STL-13-04/I/TC, Observations du Bureau de la Défense relatives à l’application de l’article 106 A) du Règlement de Procédure et de Preuve, 9 décembre 2013.

190 Scheduling order in respect of Rule 106 of the Rules of Procedure and Evidence, 3 December 2013, para. 3 (iii).

191 Email from Registry to the Legal Officer of the Trial Chamber, 9 December 2013.

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77. On 16 December 2013, the Acting Prosecutor-General reported that CCIS officers had attempted to serve the scheduling order on Mr. Merhi in Dahyieh. Before attempting to visit his apartment, the report states that they consulted a representative from the Hezbollah’s Central Security Committee, Abou-Ali Diab, who told them that they could not serve the documents on Mr. Merhi ‘for the time being by affixing them on the door of the Gardenia building because the parents of the accused Hassan Merhi were very upset after his name was associated with the case of assassination of the Prime Minister Rafik Hariri’.192

78. On 14 December 2013, they visited the mukhtar of Bourj-El-Barajneh and presented to him the documents to be served on Mr. Merhi. However, according to the CCIS report, the mukhtar ‘said that he was unable to accept them because of the sensitivity of the current situation, and that he could not give a written statement related to the matter’. The mukhtar, however, signed the record of this encounter.193

79. The Trial Chamber has received no submissions from Mr. Merhi.

DISCUSSION

80. Article 22 of the Statute of the Tribunal states that the Trial Chamber shall proceed to trial in absentia in specified circumstances. The Trial Chamber has received no material suggesting that Mr. Merhi has ‘expressly and in writing waived his or her right to be present’, under Rule 106 (A) (i), nor that he ‘has not been handed over to the Tribunal by the State authorities concerned’, under Rule 106 (A) (ii). The Trial Chamber likewise has no information to the effect that the ‘accused is not present on account of the failure or refusal of the relevant State to hand him over’, according to Rule 106 (B).

81. For the Trial Chamber to be satisfied that Mr. Merhi ‘has not been handed over to the Tribunal by the State authorities concerned’, it would have to be satisfied that the relevant State authorities at least knew where he could be located. The evidence

192 CCIS record, No. 1800/302, 10 December 2013 (revised on 16 December 2013), attached to the report of the Acting Prosecutor-General of 16 December 2013.

193 CCIS record, No. 1800/302, 10 December 2013, attached to the PG report of 16 December 2013.

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before the Trial Chamber, as detailed in the reports of the Acting Prosecutor-General, suggests the opposite. The Trial Chamber can therefore make a positive finding that Mr. Merhi ‘has not been handed over to the Tribunal by the State authorities concerned’ under Rule 106 (A) (ii). From this it follows that Rule 106 (B) is inapplicable.

82. The totality of the evidence before the Trial Chamber also establishes that Mr. Merhi has not ‘expressly and in writing waived his or her right to be present’ pursuant to Rule 106 (A) (i). There is simply no evidence of this.

83. The remaining basis upon which the Trial Chamber could order the proceedings to be conducted in absentia is under Rule 106 (A) (iii) – which mirrors Article 22 (1) (c), namely that he ‘has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance before the Tribunal and to inform him of the charges by the Pre-Trial Judge’.

84. The Trial Chamber has no positive information as to the whereabouts of Mr. Merhi, but the available evidence neither suggests nor establishes that he has left Lebanon since the indictment was transmitted to the representatives of the Government of Lebanon on 6 August 2013. The Trial Chamber is therefore proceeding on the basis that it should confine its analysis under Rule 106 to sub-rule (A) (iii), namely that an accused ‘has absconded or otherwise cannot be found’ and hence examine whether ‘all reasonable steps have been taken to secure his appearance before the Tribunal and to inform him of the charges by the Pre-Trial Judge’. As the information available to the Trial Chamber does not suggest that Mr. Merhi is not in Lebanon, the analysis is confined to the measures taken in Lebanon.

85. These measures, detailed at paragraphs 16-44, include attempted visits to Mr. Merhi’s last known places of residence, extensive inquiries of public registers, the circulation of a wanted notice against Mr. Merhi, and the publication in the Lebanese media of a poster containing biographical information and photographs of him, and describing the charges. Additionally, in determining whether Mr. Merhi is aware of the indictment, the Trial Chamber has examined the Lebanese media’s coverage connecting him with the indictment, both before and after its official publication by the Special Tribunal in October 2013. The Trial Chamber has also considered the

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extensive media coverage in Lebanon in 2011 and 2012 of the indictment of Mr. Ayyash, Mr. Badreddine, Mr. Oneissi and Mr. Sabra, in which the charges against the four accused in that case received near blanket coverage in the media.

86. The Trial Chamber has scrutinized the efforts made by the Lebanese authorities to apprehend Mr. Merhi and to notify him of the charges against him by using the personal and exceptional procedures for notification specified under the Lebanese Code of Criminal Procedure. The Trial Chamber notes with great concern that the CCIS was prevented from completing its task of attempting to notify Mr. Merhi in person by visiting his last known place of residence in South Beirut.

87. The Trial Chamber has considered all of the steps taken to inform Mr. Merhi of the charges as confirmed by the Pre-Trial Judge in the indictment, including the formal requirements for notifying an accused person of the charges specified in Rule 76 and requiring personal service, or where this cannot be effected, a form of alternative service that may be ordered under Rule 76 (E).

88. The Trial Chamber has also applied the standards identified at paragraph 31 of the Appeals Chamber’s decision of 1 November 2012, namely, that:

i) reasonable efforts have been taken to notify the accused personally;

ii) the evidence as to notification satisfies the Trial Chamber that the accused actually knew of the proceedings against them; and that,

iii) it does so with such degree of specificity that the accused’s absence means they must have elected not to attend the hearing and therefore have waived their right to be present.194

‘reasonable efforts have been taken to notify the accused personally’

89. ‘Reasonable efforts’ must be evaluated according to the totality of the circumstances. They may include a combination of the measures taken according

194 STL, Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra, STL-11-01/PT/AC/AR126.1, Decision on Defence Appeals against Trial Chamber’s Decision on Reconsideration of the Trial in absentia Decision, 1 November 2012, para. 31.

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to Lebanese criminal procedural mechanisms, those specified in the Statute and Rules of the Special Tribunal, and other measures which, although not set out in the Lebanese or Tribunal’s statutory instruments, may nonetheless be contextually considered. These could include publicity, advertisements, wanted posters and social and media reporting. The efforts must be reasonable; actual personal service is not required.

90. The following steps have been taken according to Article 147 of the Lebanese Code of Criminal Procedure in attempting the personal service required under Rule 76 (B):

• The Lebanese CCIS, acting on the instructions of Lebanon’s Acting Prosecutor-General has attempted to visit the last known address of Mr. Merhi in Dahyieh, Bourj-El-Barajneh, Beirut,

• The CCIS first went to this address in June 2012, but were informed by the local mukhtar that he no longer lived there,

• The CCIS attempted to return there in September and November 2013, but were denied access to the suburb due to security measures implemented by Hezbollah. They were also informed that Mr. Merhi’s family did not want the CCIS to go to the apartment because they were upset that his name had been connected with the assassination of Rafik Hariri,

• The CCIS returned to Dahyieh on 6 December 2013 searching for Mr. Merhi. They were, however, unable to locate him at his last known place of residence and were informed that he was not there, 195

• The CCIS made another visit to the Dahyieh area on 10 December 2013 searching for Mr. Merhi, but were unsuccessful in locating him there, 196 and,

• On 7 December, 2013, CCIS officers travelled to Ain Qana, South Lebanon, attempting to locate Mr. Merhi. Following searches and inquiries, they were informed that Mr. Merhi was not in his home village and does not live there. They returned to the village on 15 December 2013 with the same result. 197




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91. The subsequent additional steps were taken, pursuant to Article 148 of the Lebanese Code of Criminal Procedure, after the Tribunal’s President issued an order for alternative service under Rule 76 (E):

• The indictment was posted on a notice board at the Court of Cassation in Beirut and at the entrance to the Special Tribunal’s Beirut Office,

• The Acting Prosecutor-General unsuccessfully attempted to notify the mukhtars of addresses where Mr. Merhi may have been living – in South Beirut and in South Lebanon. The mukhtars, however, failed to attend scheduled interviews, and

• The Registrar of the Special Tribunal had the indictment and warrant of arrest sent by registered mail to the four mukhtars, on 17 December, 2013.

92. Additionally, the Trial Chamber holds that the following measures could be considered as part of ‘reasonable efforts’ to notify the Accused personally:

• the indictment has been widely publicised in the Lebanese media,

• an audio-recording of the charges against Mr. Merhi – issued by the Tribunal – was extensively circulated by the Lebanese media,

• an advertisement in the form of a ‘wanted’ poster was issued by the Tribunal and widely published in the Lebanese media and posted at the Court of Cassation, and

• two messages from the President of the Special Tribunal, on 21 October 2013 and 13 December 2013 – calling on Mr. Merhi to ‘face the Tribunal’ and ‘to get a lawyer and legal advice’ were extensively broadcast in the Lebanese media.

93. The Trial Chamber must view the steps taken by the Acting Prosecutor-General as a whole and within the prevailing circumstances. The Lebanese authorities were unable to complete some notification formalities normally employed under the Lebanese Code of Criminal Procedure law to inform an accused person of charges against them. This failure under Articles 147 and 148 does not of itself mean that the Trial Chamber could not be satisfied that ‘reasonable efforts have been taken to notify the accused personally’. ‘Reasonable efforts’ must be interpreted in the light of what is possible in the prevailing circumstances, but combined with whether Mr. Merhi actually knew of the charges against him.

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94. The Trial Chamber reiterates the former Lebanese Public Prosecutor’s assessment to the President of the Tribunal in respect of his attempts to notify the four accused in the Ayyash case of the indictment against them.198 He described what he termed the ‘delicate and sensitive political and security situation in Lebanon’, and ‘the difficulties faced by the Lebanese authorities in executing thousands of arrest warrants in absentia decades ago against persons who have committed different crimes and who have been secretly moving from one region to another. It is most likely that they are receiving help from their relatives and others who share common political views or religious or regional affiliations’.

95. The Trial Chamber is thus satisfied that the combination of these measures under the Tribunal’s Rules and Lebanese law constitutes ‘reasonable efforts’ to notify Mr. Merhi personally of the charges against him.

‘the evidence as to notification satisfies the Trial Chamber that the accused actually knew of the proceedings against them’

96. The Trial Chamber held in its decision of 1 February 2012 in the Ayyash case that the enormous publicity given to the indictment in that case had notified ‘almost every adult’ in Lebanon that four men were accused of acts of terrorism under Lebanese law in the explosion that killed Rafik Hariri and 21 others, and injured over 200. The widespread media publicity given to the Ayyash indictment from the second half of 2011 onwards, including after the decision of 1 February 2012, also served to notify Mr. Merhi, at least in a general sense, that an indictment had been issued against four men who were alleged in that indictment to be Hezbollah supporters.

97. Mr. Merhi was indicted on 31 July 2013. In February 2012, Prosecutor Bellemare had publicly announced that he wished to amend the indictment to add a fifth accused. In March 2012 – a month after Prosecutor Bellemare had filed an amended indictment in the Ayyash case, attempting among other things to add Mr. Merhi as an accused to that indictment – publicity started appearing in the Lebanese media stating that Mr. Merhi was the fifth Accused on the indictment – and linking

198 STL-11-01/I/TC, Decision to hold trial in absentia, 1 February 2012, para. 116.

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him to the crimes charged in relation to 14 February 2005. The publicity included a detailed report on one of Lebanon’s most popular television stations naming Mr. Merhi as the fifth accused in the case. Three weeks later, a Lebanese newspaper published a report naming Mr. Merhi as the ‘head of the purple network’, as alleged in the Ayyash indictment.

98. Seventeen months later, on 13 August 2013, and just thirteen days after the Pre-Trial Judge had confirmed the then confidential and ex parte indictment against Mr. Merhi, he was again named in the Lebanese media as the fifth accused. The Acting Prosecutor-General reported to the President of the Tribunal that CCIS officers had been prevented by Hezbollah’s Central Committee from entering the suburb in Beirut where Mr. Merhi had his last known address. Officers of Hezbollah’s Central Security Committee also reportedly told the CCIS that Mr. Merhi’s family were upset that his name had been circulated in the media as an accused in the case of the assassination of Prime Minister Rafik Hariri.

99. Since 11 October 2013, the Lebanese media has extensively covered both that Mr. Merhi has officially been indicted in relation to the crimes charged in the Ayyash case and what the charges against him are. These reports include – from 10 October, information about the indictment after it was made public; from 11 October, wanted posters published widely in the media; from 14 October, the audio broadcast; and, from 21 October and then 13 December 2013, the President’s statement in relation to the charges against Mr. Merhi.

100. The Trial Chamber is satisfied from the enormous publicity in Lebanon connecting Mr. Merhi to the Ayyash case that Mr. Merhi must have been aware that he had been indicted as a co-accused in the Ayyash case. This is derived from the combination of (a) the massive publicity surrounding the indictment in the Ayyash case from February 2011 onwards (b) that publicity connecting Mr. Merhi with the case as the fifth accused in March and June 2012, and then again in August 2013, and (c) the media publicity from 10 October 2013 naming him as an accused person and publicising the charges against him.

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101. Moreover, the mukhtar of Bourj-El-Barajneh knew that the CCIS had attempted to find Mr. Merhi at his last known residence in Bourj-El-Barajneh in Dahyieh in June 2012, just three months after it was widely broadcast in the Lebanese media that he was a possible fifth accused in the Ayyash case. The Trial Chamber is entitled to draw a reasonable inference that the mukhtar associated the CCIS’s visits to the apartment in Dahyieh with this publicity and that the visits were connected with the events of 14 February 2005. The CCIS were effectively prevented by Hezbollah officials from attempting personal service on Mr. Merhi between August 2013 and 6 December 2013 in Dahyieh, and until 7 December 2013 in Ain Qana, South Lebanon. When the CCIS officers were finally able to visit the possible last known addresses of Mr. Merhi in these two locations where he is registered as owning property – in December 2013 – they were informed that he lives in neither place. Return visits within days produced the same answers. The Trial Chamber is entitled, from this sequence of events, to draw the inferences necessary to conclude that Mr. Merhi ‘has absconded or otherwise cannot be found’.

‘it does so with such degree of specificity that the accused’s absence means they must have elected not to attend the hearing and therefore have waived their right to be present’

102. This condition does not require the express waiver specified Rule 106 (A) (i). Rather, it refers to a waiver derived from analysing the available evidence and concluding from the totality of the circumstances that an accused person must have positively decided not to attend the hearing, and thus waived their right to be present.

103. The Trial Chamber has reached that conclusion. The publicity in Lebanon of the charges against Mr. Merhi has been so great that he must have known of them. The fact that he has failed to appear to respond to the charges either in person or through a lawyer leads the conclusion that he has elected not to attend the hearing and has therefore waived his right to be present.

104. CCIS officers were able to go to Mr. Merhi’s apartment in Dahyieh, Beirut in June 2012 before he was indicted and to communicate with the relevant mukhtars, who informed them that he no longer lived there. At that time, however, his alleged

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connection with the Ayyash indictment as the fifth accused had been well-publicised in the Lebanese media, and he was not to be found there. The mukhtar must have known from the publicity in the Lebanese media that Mr. Merhi was alleged to have be the fifth accused.

105. Fourteen months later, and after Mr. Merhi was indicted, these same mukhtars failed to appear when summoned by the CCIS for an interview. This was before the indictment was made public in October 2013 but after the CCIS had attempted to go back to the same apartment in August 2013. The CCIS officers, who were able to go to the apartment in Dahyieh in June 2012 were prevented entry into the suburb between August 2013 and 6 December 2013.

106. The Trial Chamber is satisfied that Hassan Habib Merhi must be aware that he has been indicted as a co-accused in the case arising out of the attack on 14 February 2005. Mr. Merhi must know that he has been charged with conspiracy to commit a terrorist act relating to the deaths of Rafik Hariri and the others killed and those injured in the blast on that day. According to the CCIS, his family were upset that he had been indicted and did not want CCIS officers to approach their apartment in Dahyieh. Whether that was actually a ‘pretext’ for preventing their entry to Dahyieh, as the CCIS believed, is unimportant. The CCIS had been informed in June 2012 by the mukhtar that Mr. Merhi no longer lived in Dahyieh and they were thereafter prevented – until December 2013 – from ascertaining this fact for themselves.

107. Further, enormous publicity was given in Lebanon to the fact that a trial of those charged with committing the attack was occurring in Leidschendam, the Netherlands and that the trial was being held in the absence of the four accused. The publicity was such that Mr. Merhi must have known that if he did not come forward to defend the charges, the case against him too could be held in absentia. In these circumstances, the only reasonable conclusion available to the Trial Chamber is that Mr. Merhi has exercised a voluntary choice not to attend the trial. The size of Lebanon and the concentration of its media is such that the publicity given to Mr. Merhi’s alleged role as a fifth accused in the Ayyash case before his indictment was so extensive and comprehensive that he must have known that he was suspected of having participated in the attack of 14 February 2005, and that he could be indicted.

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CONCLUSION

108. Mr. Merhi is a Lebanese citizen. He is listed in the civil register of Zqaq-El-Blat, as living in an apartment in Bourj-El-Barajneh in Dahyieh, South Beirut. Lebanese entry and exit records reveal that he has not been recorded as leaving Lebanon since returning from a visit to Syria in October 2002. There is no information available to the Trial Chamber to suggest that he has left Lebanon. All attempts to personally serve him with the indictment and arrest warrant have failed. Alternative methods of service have been employed, including providing the relevant mukhtars with the indictment and arrest warrant, and posting and circulating wanted posters of Mr. Merhi. Lebanon is geographically compact with a vibrant and independent media that reports events connected with the Special Tribunal. An enormous amount of publicity has been given in Lebanon to Mr. Merhi’s indictment and the charges against him. Much media coverage has connected him with the Ayyash indictment and the attack of 14 February 2005.

109. The Trial Chamber therefore satisfied, according to the Appeals Chamber’s interpretation of Article 22 and Rule 106, that reasonable efforts have been taken to notify Mr. Merhi personally, the evidence of notification is such that he actually knew of the proceedings against them, and it does so with such specificity that Mr. Merhi’s absence means that he must have elected not to attend the trial and has therefore waived his right to be present.

110. The mukhtars of Bourj-El-Barajneh, Haret-Hreik, Zqaq-El-Blat and the village of Ain Qana in South Lebanon have refused to cooperate with the Acting Prosecutor-General’s attempts to serve the indictment and arrest warrants on them as required under Article 148 of the Lebanese Code of Criminal Procedure. Mr. Merhi could not be found in Dahyieh in June 2012 several months after his name had been publicised as the fifth accused in the Ayyash case. The CCIS reported that, between August 2013 and December 2013, Hezbollah prevented the CCIS to access to the apartment in Bourj-El-Barajneh in Dahyieh and the village of Ain Qana, but that when they went twice to these locations in December 2013 they were informed that Mr. Merhi lived in neither . The combination of these events permits the Trial Chamber to conclude that Mr. Merhi ‘has absconded or otherwise cannot be found’.

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111. The Trial Chamber is satisfied that under Article 22 (1) (c) Mr. Merhi has ‘absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance before the Tribunal and to inform him or her of the charges confirmed by the Pre-Trial Judge.’ The Trial Chamber will therefore order under Rule 106 (A) that the proceedings be conducted in absentia.

DISPOSITION

FOR THESE REASONS, the Trial Chamber:

DECIDES, pursuant to Article 22 of the Statute of the Special Tribunal and rule 106 (A) of the Rules of Procedure and Evidence, to proceed to try Hassan Assad Merhi in absentia.

Done in Arabic, English, and French, the English version being authoritative.

Leidschendam, The Net herlands 20 December 2013

Judge David Re, Presiding

Judge Janet Nosworthy Judge Micheline Braidy

381

INDEX 2013

The numbers referred to are the paragraph numbers of the decisions. The short titles of decisions are intended for ease of reference, they are not official titles.

THEME LOCATIONAbsconded Trial in absentia TC, 4, 63-65, 70, 83, 84, 101, 110, 111.

Abuse of power Reconsideration of a Decision AC, 10.

Abuse of process Reconsideration of a Decision AC. 11, 15.

Access to information Disclosure of Lebanese Case File PTJ, 22.

Accomplice Indictment of Mr Merhi PTJ, 26, 37, 39, 55, 56, 58, 59, 63, 67, 71, 77.

Accused, absence of Disclosure of Lebanese Case File PTJ, 22; Vacating Trial Date PTJ, 9; Trial in absentia TC, 63, 107; Pre-Trial Report PTJ, 40.

Accused, concerning personal information

Pre-Trial Report PTJ, 37, 38-53.

Accused, rights of Disclosure of Lebanese Case File PTJ, 6, 9, 12, 17, 21, 22; Vacating Trial Date PTJ, 19; Total Anonymity of Victims AC, 14, 21, 23-27, 31, 36-39 ; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 4-5, 15, 25-26, 28-29; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 13; Leave to Amend Indictment PTJ, 17, 20-21, 24, 26, 30-31, 33-34; Admissibility of Witness Statements TC, 16; Defects in Form of Indictment TC, 13, 15, 23; Inspection of Call Data Records AC, 15; Challenging Decision of the President AC, 10; Pre-Trial Report PTJ, 28, 34,129.

Ad hoc tribunals Vacating Trial Date PTJ, 17; Defects in Form of Indictment TC, 16.

Administrative decision Composition of the Trial Chamber PRES,12,15; Challenging Decision of the President AC, 9.

Admissibility criteria Admissibility of Witness Statements TC, 22, 23, 26.

Admissibility - into evidence Admissibility of Witness Statements TC, 1-3, 6-9, 13, 19, 22, 24-27, 30, 31, 33, 34, 37; Pre-Trial Report PTJ, 133, 134, 136, 137, 140.

Admissibility - of appeal Total Anonymity of Victims AC,7,10; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath) 1; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 1, 22; Challenging Decision of the President AC, 10.

Admissibility - of statements Admissibility of Witness Statements TC, 4, 7, 19, 22, ; Pre-Trial Report PTJ, 155.

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Index

Admissions of fact Disclosure of Documents AC, 3, 18, 20, 24, 31.

Adversarial principle Reconsideration of a Decision AC, 13.

Aggravating circumstances Indictment of Mr Merhi PTJ, 25-26.

Al-Jazeera Defects in Form of Indictment TC, 44-45-46; Indictment of Mr Merhi PTJ, 45, 51-53, 57; Pre-Trial Report PTJ, 121-127.

Alleged facts Defects in Form of Indictment TC,17.

Amended indictment Defects in Form of Indictment TC, 1, 2, 6-12, 19, 21, 22, 25, 27, 30, 31, 34, 36, 37, 41, 43-45, 47, 49, 50-52.

Amendments to the indictment

Leave to Amend Indictment PTJ, 1, 6, 17, 20, 27-28, 30-34, Disposition; Defects in Form of Indictment TC, 8; Indictment of Mr Merhi PTJ, 5, 78; Pre-Trial Report PTJ, 7-9,11, 13, 14, 18, 52.

Annulment of indictment Defects in Form of Indictment TC, 20-23.

Anonymity, definition of Total Anonymity of Victims AC, 22, 30.

Anonymity, of victims Total Anonymity of Victims AC, 3, 6, 19, 21, 22, 24, 26, 32, 34; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 3, 13, 16, 18-19, 21, 24.

Anonymity, of witnesses Total Anonymity of Victims AC, 35-36; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 21, 24.

Anonymity, permanent Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 3, 26.

Appeal, nature of Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 2.

Appeals Chamber, jurisdiction, powers

Total Anonymity of Victims AC, 8, 11; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 2-3, 5, 13, 18, 21; Defects in Form of Indictment TC, 38-39; Challenging Decision of the President AC, 10-11; Admissibility of Witness Statements TC, 9; Challenging Decision of the President AC, 8, 11.

Appeals Chamber, jurisprudence

Defects in Form of Indictment TC, 38-39; Challenging Decision of the President AC, 10-11.

Appellants, status of Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 2.

Appellate review, right to seek

Total Anonymity of Victims AC, 15-16, 19.

Applicable law Disclosure of Documents AC, 27; Indictment of Mr Merhi PTJ, 25, 27; Trial in absentia TC, 63-67.

Application of case law Disclosure of Documents AC, 27.

383

Index

Argumentum e contrario Total Anonymity of Victims AC, 13; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko),15.

Arrest warrants Leave to Amend Indictment PTJ, 1, 7, 17, 37-38; Indictment of Mr Merhi PTJ, 2, 21; Trial in absentia TC 12, 14, 18, 26, 28, 32-34, 85, 89, 91, 92, 99, 108.

Attack of 14 February 2005 Disclosure of Documents AC,31; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 16; Leave to Amend Indictment PTJ, 25; Inspection of Call Data Records AC,10; Indictment of Mr Merhi PTJ, 1, 34-35, 37, 57, 60, 74; Pre-Trial Report PTJ, 1, 5, 36, 37, 54-62, 65, 66, 83-95, 102-129, 146, 156-160, 163, 165, 173, 176, 178-180, 183, 188-190; Trial in absentia TC,5,35,96-97,106-108.

Attacks, Kuwait Pre-Trial Report PTJ, 44-46, 132, 139-141.

Attribution of phones Indictment of Mr Merhi PTJ, 34(ii), 35; Pre-Trial Report PTJ, 37, 54, 60, 62-65, 68-69, 72, 75, 77-83, 94, ,130, 156, 161-162.

Audi alteram partem, principle

Disclosure of Documents AC, 6, 7; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 10,18, 27.

Bagilishema case (ICTR) Inspection of Call Data Records AC, 28.

Bemba case (ICC) Disclosure of Lebanese Case File PTJ, 24; Total Anonymity of Victims AC, 26.

Briefs, of the Prosecution, Counsel for the Defence, LRV

Pre-Trial Report PTJ,1-2,15, 21, 23, 24, 32, 34, 35.

Broadcast Trial in absentia TC, 30,37, 39, 48, 59, 70, 99.

Call Data Records (CDRs) Vacating Trial Date PTJ, 14; Inspection of Call Data Records AC, 2; Indictment of Mr Merhi PTJ,46; Pre-Trial Report PTJ, 73, 82, 83, 163.

Call Data Report Pre-Trial Report PTJ, 100.

Call Sequence Tables (CST) Pre-Trial Report PTJ, 58.

Car bomb Trial in absentia TC, 19.

CCTV (closed circuit TV cameras)

Pre-Trial Report PTJ,112, 156, 178.

CDRs, temporal scope Inspection of Call Data Records AC,13.

CCIS, see Lebanese Central Criminal Investigation Section

384

Index

Canadian courts Inspection of Call Data Records AC, 31.

Case files (Lebanese) Disclosure of Lebanese Case File PTJ, 1, 2, 8, 10, 11, 14, 16-20, 26-29.

Case-law Vacating Trial Date PTJ, 17, 19; Disclosure of Documents AC,1, 27; Total Anonymity of Victims AC,17; Admissibility of Witness Statements TC, 10; Defects in Form of Indictment TC, 17, 29, 52; Inspection of Call Data Records AC, 21, 22; Pre-Trial Report PTJ, 134.

Cell site analysis Pre-Trial Report PTJ, 72, 73, 78-81, 83.

Certification, to appeal, threshold

Disclosure of Documents AC, 11, 13-16; Total Anonymity of Victims AC, 3, 7-10, 12, 14, 22; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 22; Inspection of Call Data Records AC,3; Challenging Decision of the President AC, 14.

Charging, cumulative Indictment of Mr Merhi PTJ, 24-26, 77. Chronology report Pre-Trial Report PTJ, 58, 60-64, 66, 86, 104, 111, 121, 122, 124.Circumstantial evidence Defects in Form of Indictment TC, 25, 26; Indictment of Mr Merhi

PTJ, 37; Pre-Trial Report PTJ, 36 ,83, 92, 94.Clarification Leave to Amend Indictment PTJ, 4, 5, 17, 19-21, 28-29, 33-35.Clarifications to the indictment

Defects in Form of Indictment TC, 6; Indictment of Mr Merhi PTJ,14.

Co-accused Trial in absentia TC, 45, 100, 106.Co-location Indictment of Mr Merhi PTJ, 34 (iv), 47-49; Pre-Trial Report PTJ,

69,73, 78, 79, 82-83, 130.Common law Disclosure of Documents AC, 20; Admissibility of Witness

Statements TC, 9, 30.Communications evidence, report

Indictment of Mr Merhi PTJ, 35-37; Pre-Trial Report PTJ, 58.

Compensation, before national courts

Total Anonymity of Victims AC, 32-34.

Complicity Indictment of Mr Merhi PTJ, 41.Composition of Chambers Challenging Decision of the President AC, 7-9, 13-16;

Reconsideration of a Decision AC, 6.Confidentiality Inspection of Call Data Records AC, 5; Indictment of Mr Merhi

PTJ,79-80; Trial in absentia TC, 8, 31, 35, 75.Connected cases Pre-Trial Report PTJ, 132,133, 136-138, 140.Conspiracy Leave to Amend Indictment PTJ, 25, 27-28, 32-33; Defects in Form

of Indictment TC,31-37,39-41, 49; Indictment of Mr Merhi PTJ, 26, 39, 41, 51, 54, 59, 72, 73, 75-77; Pre-Trial Report PTJ, 107, 118; Trial in absentia TC, 5-6,106.

385

Index

Consultation process Vacating Trial Date PTJ, 24.Co-perpetrator Indictment of Mr Merhi PTJ, 37, 39, 57, 59, 71, 73, 75.Counts Indictment of Mr Merhi PTJ, 38, 42, 43, 53-58, 60-75.Cumulative charging Indictment of Mr Merhi PTJ, 24-26,76.Defence Office Challenging Decision of the President AC, 17; Admissibility of

Witness Statements TC, 17; Reconsideration of a Decision AC, 4, 5, 13, 21; Trial in absentia TC, 41, 68, 74, 75.

Delays in the proceedings Leave to Amend Indictment PTJ, 17; Composition of the Trial Chamber PRES, 6; Reconsideration of a Decision AC, 15.

Disclosure Disclosure of Lebanese Case File PTJ, 5, 7-8, 10-11, 17, 19, 22-23, 28-29; Vacating Trial Date PTJ, 8-10, 12-15, 19; Disclosure of Documents AC, 1, 3, 8, 13-14, 16, 18-19, 27; Total Anonymity of Victims AC, 22, 30-31; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 16, 18, 27, 29.

Disclosure exemption Disclosure of Lebanese Case File PTJ, 7.

Disclosure obligationsVacating Trial Date PTJ, 8, 10, 12; Disclosure of Documents AC, 2, 7, 23, 25, 28; Total Anonymity of Victims AC, 22; Inspection of Call Data Records AC,12, 33.

Discretion Composition of the Trial Chamber PRES, 9; Admissibility of Witness Statements TC, 7, 10, 18-20.

Discriminatory, decision Reconsideration of a Decision AC, 12-14,18.DNA samples Pre-Trial Report PTJ, 158.El Sayed case Disclosure of Lebanese Case File PTJ, 8, 21; Total Anonymity of

Victims AC (Concurring Opinion of Judge Baragwanath), 8,9.Entitlement to appeal Total Anonymity of Victims AC (Concurring Opinion of Judge

Baragwanath), 9.Error of law Total Anonymity of Victims AC, 19, 34; Inspection of Call Data

Records AC, 6-7, 12.Estoppel Disclosure of Documents AC, 17, 19-22.Estoppel by deed Disclosure of Documents AC, 20-21.Estoppel by election Disclosure of Documents AC, 22.European Convention on Human Rights

Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 13: Defects in Form of Indictment TC, 13

European Court of Human Rights

Challenging Decision of the President AC, 15.

Evidence, prima facie Leave to Amend Indictment PTJ, 17, 33-34; Indictment of Mr Merhi PTJ, 36, 52.

Evidence, supporting Defects in Form of Indictment TC, 4, 16, 17, 25-27, , 40, 47-50; Pre-Trial Report PTJ, 58, 63, 64, 66, 77.

386

Index

Evidentiary analysis Leave to Amend Indictment PTJ, 19.Evidentiary materials, documents

Vacating Trial Date PTJ, 9; Indictment of Mr Merhi PTJ, 7, 11, 12, 16, 17,29-31, 33, 34, 38, 52, 59, ; Pre-Trial Report PTJ, 83, 90, 93, 134.

Ex parte proceedings Disclosure of Documents AC, 5, 7.Exceptional circumstances Admissibility of Witness Statements TC, 10, 32.Exculpatory evidence Vacating Trial Date PTJ, 15; Disclosure of Documents AC, 26, 28.Exhibit list Pre-Trial Report PTJ, 16, 17, 20, 151, 193.Expeditiousness of proceedings

Vacating Trial Date PTJ, 21, 24; Admissibility of Witness Statements TC, 14, 23.

Expert reports Vacating Trial Date PTJ, 10, 15.Expert witnesses Vacating Trial Date PTJ, 10.Expressio unius est exclusion alterius principle

Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 22.

Facts, relating to victims, not contested

Pre-Trial Report PTJ, 148.

Fair trial, right to Total Anonymity of Victims AC, 24, 28, 31, 38; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 4, 14-15, 28-29, 32, 34; Admissibility of Witness Statements TC, 23; Composition of the Trial Chamber PRES, 6.

Fair and expeditious trial Vacating Trial Date PTJ, 18; Total Anonymity of Victims AC, 2, 34; Admissibility of Witness Statements TC, 23; Defects in Form of Indictment TC, 13; Composition of the Trial Chamber PRES, 6; Pre-Trial Report PTJ, 28, 29, 31, 35; Reconsideration of a Decision AC, 23.

Fairness of the proceedings Vacating Trial Date PTJ, 20-21,24; Disclosure of Documents AC,11; Inspection of Call Data Records AC,15; Reconsideration of a Decision AC, 23; Pre-Trial Report PTJ, 34.

False claims of responsibility Leave to Amend Indictment PTJ,13, 25, 29, 31, 35; Defects in Form of Indictment TC, 44,46, 49; Indictment of Mr Merhi PTJ, 51-53, 59; Pre-Trial Report PTJ, 63, 84, 85, 95-103, 105, 118, 120,127,156, 165, 180.

Favor rei principle Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 15.

Forensic (and criminalistic) reports

Pre-Trial Report PTJ, 16, 108, 109, 117, 144, 147, 156-160.

Forensic examination Pre-Trial Report PTJ, 117.Fraudulent documents Pre-Trial Report PTJ, 59-60.Frivolous, application, filing or motion

Challenging Decision of the President AC, 17; Reconsideration of a Decision AC, 1, 3, 11-12,14-17-20.

387

Index

General principles of law, of international criminal law

Vacating Trial Date PTJ, 20; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 13; Defects in Form of Indictment TC, 15, 17-18.

Government of Lebanon Composition of the Trial Chamber PRES, 13; Trial in absentia TC, 7,12, 84.

Halilović case (ICTY) Inspection of Call Data Records AC, 29.Headquarters Agreement between theUnited Nations and the Netherlands, Article 22

Reconsideration of a Decision AC, 8.

Hezbollah, Central Security Committee

Trial in absentia TC, 26, 27, 61, 77, 98.

High Court of New Zealand Inspection of Call Data Records AC, 31.Homicide, attempted Indictment of Mr Merhi PTJ, 25, 26, 41; Trial in absentia TC, 6.Homicide, premeditated, intentional

Indictment of Mr Merhi PTJ, 25, 26, 39, 41, 60, 61-71, 77; Trial in absentia TC,6.

Human rights, international instruments, standards

Defects in Form of Indictment TC, 13, 15; Trial in absentia TC,66.

Identity of a victim Total Anonymity of Victims AC, 22, 24-26, 28, 32, Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 10, 16.

Identity of a witness Total Anonymity of Victims AC, 27; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 20.

Immunity Reconsideration of a Decision AC,7-8.Impartial, judge Pre-Trial Report PTJ, 31.Impugned Decision Disclosure of Documents AC, 3, 5, 10, 13-16, 24; Total Anonymity

of Victims AC, 7-8, 19, 21, 34, 37-38; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 25; Inspection of Call Data Records AC, 1-3, 5, 6, 8, 12-16, 18, 19, 36, 37.

In absentia, initiate proceedings (see Trials in absentia)

Defects in Form of Indictment TC, 25-27; Trial in absentia TC, 1, 2, 4, 10, 41, 46, 50, 53, 63-66, 68, 71, 73, 80, 83, 94, 107, 111.

Independent, judge Pre-Trial Report PTJ, 31.Indicia of reliability Admissibility of Witness Statements TC, 7, 22, 24-26, 29, 30, 31.Indictment, Ayyash, media coverage

Trial in absentia TC, 45, 46, 47, 85, 108.

Indictment, confidentiality of Trial in absentia TC, 8, 31.Indictment, confirmation of Indictment of Mr Merhi PTJ, 2,20; Pre-Trial Report PTJ, 5; Trial in

absentia TC, 7, 41, 54, 59.Indictment, deficiencies Defects in Form of Indictment TC, 49.Indictment, disclosure of Indictment of Mr Merhi PTJ, 1, 20.

388

Index

Indictment, operative Defects in Form of Indictment TC, 8, 22.Indictment, service of Trial in absentia TC, 11, 12, 15, 16, 18, 22, 23, 41.Inherent authority, jurisdiction, power

Composition of the Trial Chamber PRES,12; Challenging Decision of the President AC, 11-12; Reconsideration of a Decision AC, 15, 16, 19; Pre-Trial Report PTJ, 117.

Injustice Composition of the Trial Chamber PRES,10; Challenging Decision of the President AC, 11.

Inspection Disclosure of Lebanese Case File PTJ, 10, 19, 28; Vacating Trial Date PTJ, 15.

Inspection of Call Data Records (CDRs), right to

Inspection of Call Data Records AC, 1, 13, 15, 22.

Inspection, room Vacating Trial Date PTJ, 14; Inspection of Call Data Records AC, 2.Intentional homicide Pre-Trial Report PTJ, 89.Interests of justice Vacating Trial Date PTJ, 17, 21; Admissibility of Witness

Statements TC, 21, 27, 28; Total Anonymity of Victims AC, 37; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 25; Indictment of Mr Merhi PTJ, 22; Challenging Decision of the President AC, 8, 10.

Interlocutory appeal Total Anonymity of Victims AC, 7, 10, 12-13, 17; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 2, 5, 7, 13, 15-16.

Interlocutory decisions Disclosure of Documents AC,14; Total Anonymity of Victims AC, 9, 17; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 2; Indictment of Mr Merhi PTJ, 26, 77.

International Criminal Court (ICC)

Total Anonymity of Victims AC, 17, 26; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 11; Inspection of Call Data Records AC, 21-22.

Rule 77 (ICC RPEs) Inspection of Call Data Records AC, 22.International criminal law jurisprudence

Defects in Form of Indictment TC, 37.

International criminal procedure – standards of

Disclosure of Documents AC, 6; Admissibility of Witness Statements TC, 23, 30.

International Criminal Tribunal for Rwanda (ICTR)

Admissibility of Witness Statements TC, 15; Defects in Form of Indictment TC, 16, 28,38; Inspection of Call Data Records AC, 6, 21, 22, 28; Composition of the Trial Chamber PRES,14; Challenging Decision of the President AC, 12; Reconsideration of a Decision AC, 17; Pre-Trial Report PTJ, 134.

ICTR Rules of Procedure and Evidence (ICTR RPEs)

Rule 47 (C) (ICTR RPEs) Defects in Form of Indictment TC, 16.

389

Index

Rule 68 (ICTR RPEs) Inspection of Call Data Records AC, 28.ICTR Statute

Article 20 (4) (ICTR Statute) Defects in Form of Indictment TC, 16.

International Criminal Tribunal for the former Yugoslavia (ICTY)

Vacating Trial Date PTJ, 21; Total Anonymity of Victims AC, 12; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 17; Admissibility of Witness Statements TC, 15-16; Defects in Form of Indictment TC, 16, 28; Inspection of Call Data Records AC, 6, 21, 22,29, 30; Composition of the Trial Chamber PRES,14-15.

ICTY Rules of Procedure and Evidence (ICTY RPEs)

Rule 47 (C) (ICTY RPEs) Defects in Form of Indictment TC, 16.Rule 66 (B) (ICTY RPEs) Inspection of Call Data Records AC, 29.Rule 73 (ICTY RPEs) Total Anonymity of Victims AC, 12.Rule 92 bis (ICTY RPEs) Admissibility of Witness Statements TC, 15-16.

ICTY StatuteArticle 21 (4) (ICTY Statute) Defects in Form of Indictment TC, 16.

International Human Rights Law Trial in absentia TC, 66.

International media Trial in absentia TC, 36, 37, 50.Internet Trial in absentia TC, 30.Judicial brief Trial in absentia TC, 38.

Judicial decision Disclosure of Documents AC, 6; Composition of the Trial Chamber PRES, 11.

Judicial discretion Admissibility of Witness Statements TC, 7,19.

Judicial economy Disclosure of Documents AC, 16; Total Anonymity of Victims AC, 6.

Jurisdiction, Appeals Chamber Challenging Decision of the President AC, 8, 11-12.

Jurisdiction, PTJ Leave to Amend Indictment PTJ, 16, 28; Indictment of Mr Merhi PTJ,23; Pre-Trial Report PTJ, 1, 4, 133.

Jurisdiction, Tribunal Indictment of Mr Merhi PTJ, 28, 38, 40, 42.Leave to reply Total Anonymity of Victims AC, 3, 6.

Lebanese authoritiesDisclosure of Lebanese Case File PTJ, 11, 14, 16; Vacating Trial Date PTJ, 9, 12, 20; Disclosure of Documents AC, 2; Trial in absentia TC, 3, 7, 8, 18, 22, 29, 39, 41, 60, 69, 71-73, 86, 93, 94.

Lebanese case file Disclosure of Lebanese Case File PTJ, 1-2, 5, 8, 11.

390

Index

Lebanese Central Criminal Investigation Section (CCIS)

Trial in absentia TC, 16, 19-21, 24-27, 61, 77-78, 86, 90, 98, 101, 104-106, 110.

Lebanese Code of Criminal Procedure (LCCP)

Disclosure of Lebanese Case File PTJ, 9; Defects in Form of Indictment TC, 28; Trial in absentia TC, 12, 14, 86, 90, 93.

Article 131 Defects in Form of Indictment TC, 28, 29.Article 147 Trial in absentia TC, 15, 17, 23, 90, 93.Article 147 (6) Trial in absentia TC, 13.Article 147 (7) Trial in absentia TC, 7, 13.Article 148 Trial in absentia TC, 15, 23, 91, 93, 110.Chapter V Trial in absentia TC, 12.

Lebanese Court of Cassation Challenging Decision of the President AC, 16; Trial in absentia TC, 7, 32, 91, 92.

Lebanese Criminal Code (LCC)

Articles 188-189 Indictment of Mr Merhi PTJ, 26 (vii), 41.Articles 200-203 Indictment of Mr Merhi PTJ, 26 (iv), 41.Article 212-213 Indictment of Mr Merhi PTJ, 41.Article 219 (4) and (5) Indictment of Mr Merhi PTJ, 41, 56.Article 270 Indictment of Mr Merhi PTJ, 26 (ii),41.Article 314 Indictment of Mr Merhi PTJ, 26 (i),41.Articles 547, and 549 ((1) and (7)

Indictment of Mr Merhi PTJ, 26 (iii), 41.

Lebanese criminal procedure Disclosure of Lebanese Case File PTJ, 6, 12.Lebanese investigative file Vacating Trial Date PTJ, 11.Lebanese Investigative Judges

Disclosure of Lebanese Case File PTJ, 1, 7, 17, 26-27, 29.

Lebanese law Challenging Decision of the President AC, 16.Lebanese Law of 11 January 1958

Article 6 Indictment of Mr Merhi PTJ, 26 (vii), 41.Article 7 Indictment of Mr Merhi PTJ,26(ii), 41.

Lebanese media Trial in absentia TC, 3, 36, 40-44, 46, 48-52, 54, 62, 85, 92, 97-99, 101, 104.

Lebanese Prosecutor-General Disclosure of Documents AC, 25.Legal aid scheme, of the Tribunal

Reconsideration of a Decision AC, 12, 14-17.

Legal Aid Unit, Defence Office

Challenging Decision of the President AC, 17.

391

Index

Legal process Reconsideration of a Decision AC, 7.Legal Representative of Victims (LRV)

Total Anonymity of Victims AC, 1, 3-9, 12, 14-15, 19, 21-22, 25-27, 30, 32, 35-38; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 13, 16, 21, 25, 28; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 19, 21-22; Pre-Trial Report PTJ, 2, 12, 32, 35, 181, 186-193.

Legal standard Inspection of Call Data Records AC, 16, 19, 20.List of exhibits Vacating Trial Date PTJ, 10, 13.Litigation Disclosure of Documents AC, 8-9, 18.Material facts Defects in Form of Indictment TC, 17, 19, 40, 43, 45, 47-50.Material, preparation of the defence

Inspection of Call Data Records AC, 1, 6, 8, 10, 15, 16,18, 19, 21, 37.

Materiality Inspection of Call Data Records AC, 11, 14, 18-23.Media, media coverage, publicity

Trial in absentia TC, 3, 30-31,35, 45-49, 53, 85, 89, 96-100, 103-104, 107-108.

Merhi, information about Pre-Trial Report PTJ, 168-171; Trial in absentia TC, 1, 18, 25, 35, 54-55.

Methodology, of attribution Pre-Trial Report PTJ, 68-73, 83.Modes of responsibility Indictment of Mr Merhi PTJ, 24-26, 42.Modus operandi Pre-Trial Report PTJ, 114.National jurisdiction Disclosure of Lebanese Case File PTJ, 9.Necessity principle Challenging Decision of the President AC, 8.Network Analysis Report Pre-Trial Report PTJ, 58-62, 66, 74, 75, 77.Networks, secret, telephones Indictment of Mr Merhi PTJ, 35, 38, 46-50; Pre-Trial Report PTJ,

37, 54-67, 76, 117, 163.Non-disclosure Disclosure of Documents AC, 13, 16.Notice Vacating Trial Date PTJ, 8, 23.Notification, procedures Trial in absentia TC, 11-15, 17, 23, 29, 41, 66, 67, 86, 88, 93, 95,

109.Oral testimony, in lieu of Admissibility of Witness Statements TC,5,12; Pre-Trial Report PTJ,

155, 162, 165, 173, 182, 184, 185.Orders, transfer and detention (see Transfer and detention orders)Parties civiles Total Anonymity of Victims AC (Partially Dissenting Opinion of

Judges Riachy and Nsereko), 10, 13.Parties, rights of Total Anonymity of Victims AC (Partially Dissenting Opinion of

Judges Riachy and Nsereko), 2, 8-9, 13.Pattern of conduct Pre-Trial Report PTJ, 37, 132, 134, 136-137, 140, 156, 183-184.

392

Index

Personal notification Trial in absentia TC, 23, 87.Phone networks Inspection of Call Data Records AC,15; Indictment of Mr Merhi

PTJ, 35 (iii); Pre-Trial Report PTJ, 54-58, 65-67, 76, 163.Plenary of Judges Total Anonymity of Victims AC (Concurring Opinion of Judge

Baragwanath), 8.Popović et al. case (ICTY) Inspection of Call Data Records AC, 30.Postponement (start of trial) Vacating Trial Date PTJ, 5, 9, 13, 15, 20, 22.Practice Direction Admissibility of Witness Statements TC, 1, 3-11, 17-22, 24-29, 31-

33; Composition of the Trial Chamber PRES, 13.Prejudice, absence of Total Anonymity of Victims AC, 16.Prejudice, in the proceedings Total Anonymity of Victims AC, 32; Reconsideration of a Decision

AC, 10, 23.Prejudice, to a Party Admissibility of Witness Statements TC, 20, 23-24.Prejudice, to the Accused Total Anonymity of Victims AC, 25-26, 29, 34, 37-38; Total

Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 23, 25; Leave to Amend Indictment PTJ, 17, 25-26, 28, 31, 33-34; Defects in Form of Indictment TC, 21, 23.

Prejudicial Total Anonymity of Victims AC, 14, 27, 30-31, 35, 38-39; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 4, 21, 27.

Pre-trial brief Vacating Trial Date PTJ, 9,13; Defects in Form of Indictment TC, 27, 29, 50; Pre-Trial Report PTJ, 2, 15, 17, 21, 23, 34, 133.

Prima facie evidence (see Evidence, prima facie)Principle of equality before the law


Principles of international criminal law

Defects in Form of Indictment TC, 15, 17, 18; Pre-Trial Report PTJ, 27.

Proceedings - fairness, efficiency

Vacating Trial Date PTJ, 20, 21, 24; Disclosure of Documents AC, 11; Total Anonymity of Victims AC, 26, 36; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 10, 24; Inspection of Call Data Records AC, 15; Challenging Decision of the President AC, 12.

Proceedings - public Disclosure of Documents AC, 5, 9; Total Anonymity of Victims AC, 24.

Proportionality Total Anonymity of Victims AC,38.Protection of accused Total Anonymity of Victims AC (Concurring Opinion of Judge

Baragwanath), 2, 10.Protection of victims, witnesses

Total Anonymity of Victims AC, 22, 24, 36.

393

Index

Protective measures Total Anonymity of Victims AC, 1, 3, 9, 15, 20-22, 24, 31, 34, 37- 40; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 3, 25; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 5, 16.

Public advertisement, service announcement

Trial in absentia TC, 8, 14, 29, 32, 39, 41, 70, 72.

Publication Trial in absentia TC, 9, 30, 48, 85.Publicity, public hearing Disclosure of Documents AC, 9.Radio, message, broadcast Trial in absentia TC, 30, 36-40, 48, 54, 59, 70, 92, 99, 101.Raw data, raw materials Inspection of Call Data Records AC, 2, 9, 34-36.Reconsideration, Reconsider Defects in Form of Indictment TC, 10; Composition of the Trial

Chamber PRES,1,10-11,15; Reconsideration of a Decision AC, 1, 4, 6,7, 8-10, 12.

Redaction Disclosure of Documents AC, 9; Total Anonymity of Victims AC, 31; Leave to Amend Indictment PTJ, 40; Trial in absentia TC, 75.

Relevant facts Indictment of Mr Merhi PTJ, 43, 57, 62, 66, 70.Relevant time period Inspection of Call Data Records AC, 3, 9, 13, 15-19, 24-26, 34, 36.Reliability Admissibility of Witness Statements TC, 7, 9, 11, 22, 24-31, 35, 36.Rescind, rescission Composition of the Trial Chamber PRES, 1, 10, 15.

Right of appeal (see entitlement to appeal)

Total Anonymity of Victims AC, 9, 11, 15; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 6, 13-16, 21-22;

Rights of the accused (see accused, rights of)

Rights of the victimsTotal Anonymity of Victims AC, 16, 31, 38; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 15.

Rules of Procedure and Evidence (RPEs)

Rule 2 Total Anonymity of Victims AC, 9, Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 8;

Rule 3 Pre-Trial Report PTJ, 27.Rule 3 (A) Defects in Form of Indictment TC, 15.Rule 8(B) Total Anonymity of Victims AC, 4-5.Rule 9 Disclosure of Documents AC, 10.Rule 14 Indictment of Mr Merhi PTJ, 2.Rule 32 Composition of the Trial Chamber PRES, 13.Rule 32 (E) Admissibility of Witness Statements TC, 17.Rule 57 (H) Reconsideration of a Decision AC, 21.

394

Index

Rule 60 (H) Reconsideration of a Decision AC, 21.Rule 61 (iv) Indictment of Mr Merhi PTJ, 1-2.Rule 68 (D) Defects in Form of Indictment TC, 14, 16, 29.Rule 68 (E) Indictment of Mr Merhi PTJ, 14.Rule 68 (F) Indictment of Mr Merhi PTJ, 31.Rule 68 (G) Indictment of Mr Merhi PTJ, 24.Rule 68 (J) Indictment of Mr Merhi PTJ, 2.Rule 69 Vacating Trial Date PTJ, 5.Rule 71 (A)(ii) Leave to Amend Indictment PTJ, 16, 20, Disposition.Rule 71 (B) Leave to Amend Indictment PTJ, 17, 20, 31, 33-34.Rule 74 Indictment of Mr Merhi PTJ, 1, 80.Rule 76 Indictment of Mr Merhi PTJ, 2; Trial in absentia TC, 8, 11, 16, 23,

31, 87.Rule 76 (A) Trial in absentia TC, 11.Rule 76 (B) Trial in absentia TC, 11,16, 90.Rule 76 (C) Trial in absentia TC, 7.Rule 76 (E) Trial in absentia TC, 14, 29, 87, 91.Rule 76 bis Trial in absentia TC, 9, 30.Rule 77 (A) Vacating Trial Date PTJ, 5; Indictment of Mr Merhi PTJ, 1-2.Rule 79 Indictment of Mr Merhi PTJ, 2.Rule 84 Indictment of Mr Merhi PTJ, 2.Rule 86 Total Anonymity of Victims AC (Concurring Opinion of Judge

Baragwanath), 4.Rule 86 (C) Total Anonymity of Victims AC,13, 15; Total Anonymity of Victims

AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 14-15.

Rule 86 (D) Total Anonymity of Victims AC, 13; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 15.

Rule 86 (G) Total Anonymity of Victims AC,32-34.Rule 87 Total Anonymity of Victims AC, 23; Total Anonymity of Victims AC

(Concurring Opinion of Judge Baragwanath), 10; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 10.

Rule 88 Vacating Trial Date PTJ, 15.Rule 89 (B) Pre-Trial Report PTJ, 31.Rule 89 (E) Admissibility of Witness Statements TC, 3; Composition of the Trial

Chamber PRES,7; Pre-Trial Report PTJ, 133.

395

Index

Rule 90 (A) Defects in Form of Indictment TC, 4, 9, 20.Rule 91 Inspection of Call Data Records AC, 2-3; Pre-Trial Report PTJ, 17,

22.Rule 91(A) Vacating Trial Date PTJ, 4, 10.Rule 91(C) Vacating Trial Date PTJ, 1, 10, 16, 23.Rule 91 (G) Inspection of Call Data Records AC, 15.Rule 91 (G)(ii) Vacating Trial Date PTJ, 13; Pre-Trial Report PTJ, 153.Rule 91 (G)(iii) Vacating Trial Date PTJ, 15,20.Rule 91 (I) Pre-Trial Report PTJ, 15, 34, 152.Rule 93 Total Anonymity of Victims AC, 35-36; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath), 13, 20-24, 31, 33-34.

Rule 95 Leave to Amend Indictment PTJ, 16; Admissibility of Witness Statements TC, 33, 37; Pre-Trial Report PTJ, 22, 71.

Rule 95 (A) Pre-Trial Report PTJ, 4, 29.Rule 95 (A) (vi) Pre-Trial Report PTJ, 1.Rule 95 (A) (vii) Pre-Trial Report PTJ, 26-27,30, 150.Rule 95 (B) Pre-Trial Report PTJ, 4.Rule 101 (G) Indictment of Mr Merhi PTJ, 2.Rule 105 bis (A) Trial in absentia TC, 2, 10.Rule 106 Trial in absentia TC, 64, 69, 74, 76, 109.Rule 106 (A)(i) Trial in absentia TC, 80, 82, 102.Rule 106 (A)(iii) Trial in absentia TC, 65, 83, 84, 111.Rule 106 (B) Trial in absentia TC, 80-81.Rule 110 Inspection of Call Data Records AC, 2.Rule 110 (A)(i) Vacating Trial Date PTJ, 15.Rule 110(A)(ii) Vacating Trial Date PTJ, 10, 15, 20.Rule 110 (B) Disclosure of Lebanese Case File PTJ, 2, 10, 18-19, 28; Vacating

Trial Date PTJ, 10,15; Inspection of Call Data Records AC, 1-3,8,10-16, 19-23, 27, 29, 37.

Rule 111 Disclosure of Lebanese Case File PTJ, 6-8, 11, 21-23, 25, 27; Disclosure of Documents AC, 2, 13, 15, 25-29, 34.

Rule 112 bis Total Anonymity of Victims AC, 22.Rule 113 Vacating Trial Date PTJ, 10,15; Disclosure of Documents AC, 25-

26; Inspection of Call Data Records AC, 2, 28.Rule 115 Total Anonymity of Victims AC, 24.Rule 116 Disclosure of Documents AC, 7-8, 26, 28.Rule 117 Disclosure of Documents AC, 7-8, 26, 28.

396

Index

Rule 118 Disclosure of Documents AC, 7-8, 26, 28.Rule 121 (A) Inspection of Call Data Records AC, 1, 26, 33-35, 37, Disposition.Rule 122 Pre-Trial Report PTJ, 142.Rule 123 Admissibility of Witness Statements TC, 19.Rule 126 Total Anonymity of Victims AC, 7, 11, 14; Total Anonymity of

Victims AC (Concurring Opinion of Judge Baragwanath),9; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 5-7, 12, 18.

Rule 126 (A) Total Anonymity of Victims AC, 12.Rule 126 (B) Total Anonymity of Victims AC, 12.Rule 126 (C) Total Anonymity of Victims AC ,9, 12Rule 126 (E) Disclosure of Documents AC, 11; Total Anonymity of Victims AC,

9-10, 12, 18.Rule 126 (G) Challenging Decision of the President AC, 17; Reconsideration of a

Decision AC, 1, 7, 11-19, 21-22.Rule 133 Total Anonymity of Victims AC, 24.Rule 140 Composition of the Trial Chamber PRES,11; Reconsideration of a

Decision AC, 1,8-9.Rule 149 (C) Admissibility of Witness Statements TC, 10; Pre-Trial Report PTJ,

134.Rule 150 Pre-Trial Report PTJ, 153.Rule 155 Admissibility of Witness Statements TC, 2, 3-5, 9, 12, 15, 16, 19,

20, 22-25, 27, 28, 30, 31, 34, 37; Pre-Trial Report PTJ, 153, 155, 157-160, 162, 164, 165, 173, 174, 182, 184, 187-190.

Rule 155 (A) Admissibility of Witness Statements TC, 5, 12; Pre-Trial Report PTJ, 155.

Rule 155 (B) Admissibility of Witness Statements TC, 32.Rule 156 Pre-Trial Report PTJ, 153.Rule 157 Admissibility of Witness Statements TC, 3, 19.Rule 158 Admissibility of Witness Statements TC, 36; Pre-Trial Report PTJ,

153, 179.Rule 158 (A)(ii) Admissibility of Witness Statements TC, 36.Rule 159 (B) Total Anonymity of Victims AC (Concurring Opinion of Judge

Baragwanath), 22.Rule 176 (A) Inspection of Call Data Records AC, 6.

Sanctions Reconsideration of a Decision AC, 12, 13,15-17, 20, 22-23.Scheduling Order, on Mr Merhi

Trial in absentia TC, 76-77.

397

Index

Security Council Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 8.

Security Council, Document annexed to SC Resolution 1757, Article 13


Seized of the file Pre-Trial Report PTJ, 4.SMS (short message service) records

Inspection of Call Data Records AC, 2.

Special Court for Sierra Leone (SCSL)

Admissibility of Witness Statements TC, 15; Reconsideration of a Decision AC, 17.

Rule 47 (C) (SCSL RPEs) Defects in Form of Indictment TC, 16. Article 17 (4) (e) (SCSL Statute) Defects in Form of Indictment TC, 16.

SQL (structured query language) format, SQL CDRs Inspection of Call Data Records AC, 2, 9-11, 13, 24-27, 32-37.

Standard of (appellate) review

Total Anonymity of Victims AC, 19; Inspection of Call Data Records AC, 6.

Stanišić and Simatović case (ICTY)

Inspection of Call Data Records AC, 29.

Start of Trial Vacating Trial Date PTJ, 4, 9, 19, 22; Composition of the Trial Chamber PRES,7; Pre-Trial Report PTJ, 6, 12, 19.

Status Conference Vacating Trial Date PTJ, 3, 7.Statute (STL)

Article 2 Indictment of Mr Merhi PTJ, 39, 41.Article 2 (2)(d) Admissibility of Witness Statements TC, 29.Article 3 Indictment of Mr Merhi PTJ, 39, 41.Article 8 (1) (C) Challenging Decision of the President AC, 7.Article 8 (3) Composition of the Trial Chamber PRES, 2-3, 9.Article 10 Composition of the Trial Chamber PRES, 12-13.Article 10 (1) Composition of the Trial Chamber PRES, 6.Article 12 (4) Total Anonymity of Victims AC, 24; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath), 4, 32.Article 16 Vacating Trial Date PTJ, 5, 28; Defects in Form of Indictment TC,

16.Article 16 (2) Total Anonymity of Victims AC, 24.Article 16 (4) (a) Defects in Form of Indictment TC, 13, 16.Article 16 (4) (b) Vacating Trial Date PTJ, 19.Article 16 (4) (c) Composition of the Trial Chamber PRES, 6.

398

Index

Article 17 Total Anonymity of Victims AC, 14, 16, 23, 36, 38-39; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 4, 24, 34; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 10, 19-20.

Article 18 Pre-Trial Report PTJ, 31.Article 18 (2) Composition of the Trial Chamber PRES, 6; Indictment of Mr Merhi

PTJ, 1-2, 20, 28.Article 20 Pre-Trial Report PTJ, 31.Article 21 Composition of the Trial Chamber PRES,6; Reconsideration of a

Decision AC, 15.Article 22 Total Anonymity of Victims AC (Concurring Opinion of Judge

Baragwanath), 4; Trial in absentia TC, 2, 63, 64, 80, 109.Article 22 (1) (c) Trial in absentia TC, 83, 111.Article 25 Total Anonymity of Victims AC, 21, 32-34.Article 28 Admissibility of Witness Statements TC, 17.Article 28 (2) Composition of the Trial Chamber PRES, 6.

Suicide bomber Pre-Trial Report PTJ, 112, 117, 139.Supplementary filing Disclosure of Lebanese Case File PTJ, 5, 13.Surveillance, and observation Pre-Trial Report PTJ, 61, 84-95, 103, 104.Technical difficulties Vacating Trial Date PTJ, 11, 20.Telephone, communications Leave to Amend Indictment PTJ, 13, 19, 29, 35; Indictment of Mr

Merhi PTJ, 33, 37, 38,46-50, 76.Telephony, technical aspects Pre-Trial Report PTJ, 71.Temporal scope Inspection of Call Data Records AC, 13-14, 18.Tendering evidence Total Anonymity of Victims AC, 27; Admissibility of Witness

Statements TC, 9.Tentative date (new, start of trial)

Vacating Trial Date PTJ, 3, 18-24; Pre-Trial Report PTJ, 6, 12, 19.

Terrorist act Indictment of Mr Merhi PTJ, 25, 26, 39, 41, 51, 54-59, 72-77.Time limit Total Anonymity of Victims AC, 4.Time period, relevant Inspection of Call Data Records AC, 15-16.Transfer and detention orders, requests

Leave to Amend Indictment PTJ, 1, 7, 15, 37.

Transfer of case file Pre-Trial Report PTJ, 71.Transparency Disclosure of Documents AC, 9; Inspection of Call Data Records

AC, 5.Trials in absentia, to conduct, initiate proceedings

Trial in absentia TC, 10, 41, 63, 64, 67, 68.

Ultra vires Composition of the Trial Chamber PRES, 10.

399

Index

United Nations Charter Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 2.

United Nations International Independent Investigation Commission (UNIIIC)

Disclosure of Lebanese Case File PTJ, 7-8, 11, 21, 23; Disclosure of Documents AC, 2, 25.

United Nations Secretary-General

Composition of the Trial Chamber PRES, 2, 8, 13.

United States federal courts Inspection of Call Data Records AC, 31.Victim anonymity Total Anonymity of Victims AC, 1, 36; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath), 3, 24.Victims participating in the procedings (VPPs) - status

Total Anonymity of Victims AC, 3, 13, 15, 28-29, 34, 36; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath),4, 7, 15, 23-24, 32 ; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 8, 10, 13-15, 20.

Victims participating in the proceedings (VPPs) – (non)-disclosure of identity

Total Anonymity of Victims AC, 3, 22, 24; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 10, 18.

Victims participating in the proceedings (VPPs) – personal interests

Total Anonymity of Victims AC, 7, 14-15, 17, 23, 29; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 4; Total Anonymity of Victims AC (Partially Dissenting Opinion of Judges Riachy and Nsereko), 20-21.

Victims Participation Unit (VPU)

Total Anonymity of Victims AC, 3.

Victims and Witness Unit (VWU)

Total Anonymity of Victims AC, 24; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 4.

Video tape, cassette Defects in Form of Indictment TC, 44-46; Indictment of Mr Merhi PTJ, 45, 51, 53, 57; Pre-Trial Report PTJ, 118, 119, 122, 125, 127, 128.

Video-link Admissibility of Witness Statements TC, 13, 35.Vienna Convention on the Law of Treaties

Pre-Trial Report PTJ, 27-28.

Warrant of arrest (see Arrest warrant)Witness anonymity Total Anonymity of Victims AC, 35-36; Total Anonymity of Victims

AC (Concurring Opinion of Judge Baragwanath), 24.Witness list Vacating Trial Date PTJ, 13; Pre-Trial Report PTJ, 16-17, 20, 25,

150-155, 185, 187, 190.Witness protection Vacating Trial Date PTJ, 10; Leave to Amend Indictment PTJ, 40.Witness statements, admission into evidence

Vacating Trial Date PTJ, 15; Admissibility of Witness Statements TC, 1-3, 5, 7, 9, 13, 19, 22-24, 37.

400

Witness statements, non-compliance of

Admissibility of Witness Statements TC, 1, 3, 6, 9, 10, 25, 28, 31, 34

Witness testimony Total Anonymity of Victims AC, 35; Total Anonymity of Victims AC (Concurring Opinion of Judge Baragwanath), 21; Pre-Trial Report PTJ, 155, 162, 164, 165, 173, 182, 184, 185, 187, 188

Working plan Vacating Trial Date PTJ, 4, 19-20, 24.Work product - internal Disclosure of Documents AC, 2, 4.

9 789490 651114

ISBN 978-94-90651-11-4Special Tribunal for Lebanonwww.stl-tsl.org

Major rulings issued by the Special Tribunal for Lebanon in 2013

1 Order on the Defence Request to Compel Disclosure of the Lebanese Investigative Case Files (“Disclosure of Lebanese Case File PTJ”)

The Prosecutor v. Ayyash et al., Pre-Trial Judge Case No.: STL-11-01/PT/PTJ, 8 February 2013

2 Decision relating to the Defence Motion to Vacate the Date for the Start of Trial (“Vacating Trial Date PTJ”)

The Prosecutor v. Ayyash et al., Pre-Trial Judge Case No.: STL-11-01/PT/PTJ, 21 February 2013

3 Public redacted version of Decision on Appeal by the Prosecutor against Pre-Trial Judge’s Decision of 11 January 2013, Dated 28 March 2013 (“Disclosure of Documents AC”)

In the matter of El Sayed, Appeals Chamber Case No.: CH/AC/2013/01, 28 March 2013

4 Decision on Appeal by Legal Representative of Victims against Pre-Trial Judge’s Decision on Protective Measures (“Total Anonymity of Victims AC”)

The Prosecutor v. Ayyash et al., Appeals Chamber Case No.: STL-11-01/PT/AC/AR126.3, 10 April 2013

5 Decision Relating to the Prosecution Requests of 8 November 2012 and 6 February 2013 for the Filing of an Amended Indictment (“Leave to Amend Indictment PTJ”)

The Prosecutor v. Ayyash et al., Pre-Trial Judge Case No.: STL-11-01/PT/PTJ, 12 April 2013

6 Decision on Compliance with the Practice Direction for the Admissibility of Witness Statements under Rule 155 (“Admissibility of Witness Statements TC”)

The Prosecutor v. Ayyash et al., Trial Chamber Case No.: STL-11-01/PT/TC, 30 May 2013

7 Decision on Alleged Defects in the Form of the Amended Indictment of 21 June 2013 (“Defects in Form of Indictment TC”)

The Prosecutor v. Ayyash et al., Trial Chamber Case No.: STL-11-01/PT/TC, 13 September 2013

8 Public redacted version of 19 September 2013 Decision on Appeal by Counsel for Mr Oneissi against Pre-Trial Judge’s “Decision on Issues Related to the Inspection Room and Call Data Records” (“Inspection of Call Data Records AC”

The Prosecutor v. Ayyash et al., Appeals Chamber Case No.: STL-11-01/PT/AC/AR126.4, 2 October 2013

9 Decision on Defence Motion for Reconsideration and Rescission of Order Composing the Trial Chamber (“Composition of the Trial Chamber PRES”)

The Prosecutor v. Ayyash et al., President Case No.: STL-11-01/PT/PRES, 4 October 2013

10 Public Redacted Version of the “Decision Relating to the Examination of the Indictment of 5 June 2013 issued against Mr Hassan Habib Merhi” dated 31 July 2013 (“Indictment of Mr Merhi PTJ”)

The Prosecutor v. Merhi, Pre-Trial Judge Case No.: STL-13-04/I/PTJ, 11 October 2013

11 Decision on Application by Counsel for Messrs Badreddine and Oneissi against President’s Order on Composition of the Trial Chamber of 10 September 2013 (“Challenging Decision of the President AC”)

The Prosecutor v. Ayyash et al., Appeals Chamber Case No.: STL-11-01/PT/AC, 25 October 2013

12 Decision on Request by Counsel for Messrs Badreddine and Oneissi for Reconsideration of the Appeals Chamber’s Decision of 25 October 2013 (“Reconsideration of a Decision AC”)

The Prosecutor v. Ayyash et al., Appeals Chamber Case No.: STL-11-01/PT/AC, 10 December 2013

13 Redacted Version of the Corrected Version of the Pre-Trial Judge’s Report Prepared pursuant to Rule 95(A) of the Rules of Procedure and Evidence (“Pre-Trial Report PTJ”)

The Prosecutor v. Ayyash et al., Pre-Trial Judge Case No.: STL-11-01/PT/PTJ, 11 December 2013

14 Decision to Hold Trial in Absentia (“Trial in Absentia TC”) The Prosecutor v. Merhi, Trial Chamber Case No.: STL-13-04/I/TC, 20 December 2013