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SPECIAL TRIBUNAL FOR LEBANON

TRIBUNAL SPÉCIAL POUR LE LIBAN

STL CASEBOOK

2009 - 2010

Major rulings issued by the

Special Tribunal for Lebanon

STL


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STL CASEBOOK 2009 - 2010


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STL CASEBOOK 2009 - 2010

Major rulings issued by theSpecial Tribunal for Lebanon


Leidschendam


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Leidschendam

Netherlands

©2012 Special Tribunal for Lebanon

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

ISBN 978-94-90651-00-8

Printed in Lebanon


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TABLE OF CONTENTS

Preface 7

1. Order Directing the Lebanese Judicial Authority Seized with the Case ofthe Attack Against Prime Minister Raq Hariri and Others to Defer to

the Special Tribunal for Lebanon, Case No.: CH/PTJ/2009/01, 27 March

2009 (“Deferral”)

9

2. Order on Conditions of Detention, Case No.: CH/PRES/2009/01/rev, 21

April 2009 (“Conditions of Detention”)

19

3. Order Regarding the Detention of Persons Detained in Lebanon in

Connection with the Case of the Attack Against Prime Minister RaqHariri and Others, Case No.: CH/PTJ/2009/06, 29 April 2009 (“Release”)

33

4. Order Relating to the Jurisdiction of the Tribunal to Rule on the

Application by Mr El Sayed Dated 17 March 2010 and Whether Mr El

Sayed Has Standing Before the Tribunal, Case No.: CH/PTJ/2010/005,

17 September 2010 (“Jurisdiction and Standing PTJ”)

49

5. Decision on Mr El Sayed’s Motion for the Disqualication of Judge

Riachy from the Appeals Chamber Pursuant to Rule 25, Case No.: CH/PRES/2010/08, 5 November 2010 (“Disqualication Judge Riachy”)

77

6. Decision on Mr El Sayed’s Motion for the Disqualication of Judge

Chamseddine from the Appeals Chamber Pursuant to Rule 25, Case

No.: CH/PRES/2010/09, 5 November 2010 (“Disqualication Judge

Chamseddine”)

123

7. Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and

Standing, Case No.: CH/AC/2010/02, 10 November 2010 (“Jurisdictionand Standing AC”)

137

Index 169


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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 signicant 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 three major decisions issued by the Tribunal in 2009

and four in 2010. 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 rst tribunal of international character with jurisdiction over terrorism, the

signicance 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


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Order Directing the Lebanese Judicial Authority Seized with the

Case of the Attack Against Prime Minister Raq Hariri and Others

to Defer to the Special Tribunal for Lebanon

“Deferral”


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THE PRE-TRIAL JUDGE

Case no.: CH/PTJ/2009/01

Before: Judge Daniel Fransen

Registrar: Robin Vincent

Date: 27 March 2009

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

The Prosecutor:

Mr D.A. Bellemare

The Government of Lebanon


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I. – The application

1. On 25 March 2009, the Prosecutor of the Special Tribunal for Lebanon (the

“Prosecutor” and the “Tribunal” respectively) made an application to the Pre-Trial

Judge to “issue a request to the Lebanese authorities seized with the case of the

attack against Prime Minister Raq Hariri and others (the “ Hariri case”) to: 1)

defer to the Tribunal’s competence, 2) hand over to the Prosecutor the results of the

investigations, and a copy of the relevant court records and other probative material,

and 3) submit to the Pre-Trial Judge a list of all persons detained in connection with

the investigation” (the “Application”).

2. The Application is made pursuant to Article 4 (2) of the Statute of the

Tribunal (the “Statute”) attached to the Agreement between the United Nations and

the Lebanese Republic on the establishment of a Special Tribunal for Lebanon (the

“Agreement”), itself annexed to Resolution 1757 (2007) adopted by the Security

Council on 30 May 2007 (S/RES/1757 (2007)). The Application is also based on

Rule 17 of Procedure and Evidence which entered into force on 20 March 2009 (the

“Rules”).

II. – The applicable provisions

3. The provisions to be considered in connection with this order are Article 4 (2)

of the Statute, Rule 17 (A) and (B) and Article 15 (1) of the Agreement.

4. Article 4 governs in general the jurisdiction exercised concurrently by the

Tribunal and the national courts of Lebanon. Paragraph (2) thereof, which speaks

specically to the Hariri case, reads as follows:

Upon the assumption of ofce of the Prosecutor, as determined by the Secretary-

General, and no later than two months thereafter, the Special Tribunal shall

request the national judicial authority seized with the case of the attack against

Prime Minister Raq Hariri and others to defer to its competence. The Lebanese

judicial authority shall refer to the Tribunal the results of the investigation and

a copy of the court’s records, if any. Persons detained in connection with the

investigation shall be transferred to the custody of the Tribunal.


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5. Rule 17 implements the provisions of Article 4 of the Statute and provides

the practical modalities for the deferral of the Lebanese judicial authorities to the

Tribunal. Paragraphs (A) to D) address the Hariri case specically. Only paragraphs(A) and B) are relevant at this stage in the proceedings. They read as follows:

(A) Pursuant to Article 4 (2) of the Statute, no later than two months after the assumption

of ofce by the Prosecutor, the Pre-Trial Judge, upon request of the Prosecutor, shall

request the Lebanese judicial authorities seized with the investigation of the Hariri

Attack within 14 days to:

i. defer to the Tribunal’s competence;

ii. hand over to the Prosecutor the results of the investigations and a copy

of the relevant court records, and other probative material; and

iii. submit to the Pre-Trial Judge a list of all persons detained in connection

with the investigation.

(B) Once he receives the list referred to in (A) (iii), the Pre-Trial Judge shall forward it to

the Prosecutor. As soon as practicable, the Prosecutor shall le reasoned submissions

together with any supporting material stating, for each person on the list, whether he

requests the continuation of his detention or he does not oppose release by the Pre-Trial Judge and, in the latter event, whether the release should be subject to conditions

in accordance with Rule 102.

i. For each person on the list whose release the Prosecutor does not

oppose, the Pre-Trial Judge shall decide within a reasonable time whether

or not to direct the Lebanese judicial authorities to release the person with

immediate effect, subject to the necessary measures to ensure the safety of the

person in question, if requested. His decision shall be rendered in public in the

presence of the Head of Defence Ofce and the Prosecutor. The Prosecutor’ssubmission under paragraph (B) shall be made public at that time.

ii. For each person on the list whose release the Prosecutor opposes, the

Pre-Trial Judge shall hold, as soon as practicable, a public hearing, which

may include a videoconference for the person and his counsel, if appropriate,

to determine whether the person shall be transferred to the custody of the

Tribunal under Article 4 (2) of the Statute and may, after hearing the person

or his counsel, issue any appropriate order or warrant of arrest in this respect.


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6. Article 15 of the Agreement governs cooperation between the Tribunal and

the Lebanese authorities in general. Paragraph 1 thereof reads as follows:

The Government shall cooperate with all organs of the Special Tribunal,

in particular with the Prosecutor and defence counsel, at all stages of the

proceedings. It shall facilitate access of the Prosecutor and defence counsel to

sites, persons and relevant documents required for the investigation.

III. – Jurisdiction

7. Pursuant to Article 4 (1) of the Statute, the Tribunal and the national courts of

Lebanon have concurrent jurisdiction as regards the Hariri case. However, withinthe connes of its jurisdiction, the Tribunal has primacy over the national courts of

Lebanon. In order to exercise this primacy pursuant to Article 4 (2) of the Statute,

the Tribunal shall request the national judicial authority seized with the Hariri case

to defer to its competence, and shall do so upon the assumption of ofce of the

Prosecutor and no later than two months thereafter. Furthermore, pursuant to Rule

17 (A), it is the Pre-Trial Judge, upon request of the Prosecutor, who shall make said

request to defer.

8. With the commencement of the functioning of the Tribunal on 1 March 2009,

the Prosecutor assumed ofce. On 25 March 2009, he applied to the Pre-Trial Judge

to request the Lebanese authorities seized of the Hariri case to defer to the Tribunal’s

competence.

9. Pursuant Article 4 (1) and (2) of the Statute and Rule 17 (A), and as the

Prosecutor has assumed ofce and led his Application within the prescribed

timeframe, the Pre-Trial Judge is competent to rule on the Application.

10. Furthermore, it should be noted that the Minister of Justice of Lebanon

informed the Tribunal by a letter dated 27 February 2009 that Lebanon intended

“to cooperate and [...] meet its international commitments” and that “the judicial

authority [of that State] solemnly declare[d] [...] that it agree[d] to defer all les,

records and results of investigations [...]” related to the Hariri case to the jurisdiction

of the Tribunal. Although it bears witness to Lebanon’s intention to cooperate with

the Tribunal, this letter is nonetheless not a formal instrument of deferral by the


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national courts of Lebanon, as such a deferral may only take place following a

request by the Tribunal as stated in paragraph 7 of this order.

IV. – Discussion

11. The discussion commences with observations on the legal and logical bases

of Rule 17, in light of Article 4 of the Statute. It then addresses the merits of the

Application.

A. – Preliminary observations

12. In accordance with Article 4 (2) in ne of the Statute, “[p]ersons detained inconnection with the investigation shall be transferred to the custody of the Tribunal”.

13. These terms – which could give the impression that all persons detained

in connection with the investigation into the Hariri case are to be transferred

automatically to the seat of the Tribunal – must be interpreted in accordance with

Article 31 (1) of the Vienna Convention on the Law of Treaties (adopted on 23 May

1969 and which entered into force on 27 January 1980). That provision provides that

“[a] treaty shall be interpreted in good faith in accordance with the ordinary meaningto be given to the terms of the treaty in their context and in the light of its object and

purpose.”

14. When interpreted in the overall context of the Agreement and the attached

Statute, the purpose of Article 4 (2) in ne is to ensure that all persons whose continued

detention the Pre-Trial Judge orders, at the request of the Prosecutor, be transferred

to the Tribunal. However, this provision cannot reasonably be interpreted as also

applying to persons who the Pre-Trial Judge intends to release, at the request of theProsecutor. Indeed for these persons to be transferred to the seat of the Tribunal only

to be notied of their release and to be returned to their country would be against the

requirements of a fair trial and of efciency and judicial economy, inherent in the

spirit of the Statute.

15. As a result, Article 4 (2) of the Statute must be interpreted as drawing

a distinction between the request for deferral and referral of the results of the

investigation and a copy of the court’s records, on the one hand, and the transfer to


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the Tribunal of persons detained in Lebanon, if any, on the other. In fact, it is only

when the results of the investigation and the copy of the court’s records have been

referred to the Tribunal that the latter can seize itself of the Hariri case and then rule

on the transfer and continued detention of these persons.

16. In accordance with the interpretation of Article 4 (2) of the Statute set out

above, Rule 17 (A) and (B) make this distinction. It species the various stages of

deferral by the national courts of Lebanon seized with the Hariri case, i.e. a formal

decision to defer, the handover of the records and of the list of the persons detained

(Rule 17 (A)), and distinguishes them from the issue of detention, which can only be

submitted to the Tribunal after the Tribunal is seized (Rule 17 (B)).

B. – Consideration of the Application

17. The Application was led within a period of two months from the assumption

of ofce of the Prosecutor. It is therefore admissible.

18. Given that the terms of Rule 17 (A) are explicitly used in its operative part, the

Application has a valid basis. There is reason to grant it and to request the judicial

authorities of Lebanon to defer formally to the Tribunal in the Hariri case.

19. However, in the interests of the proper administration of justice and of

expeditious proceedings, it is appropriate that the procedure be conducted in two

successive phases, as set out in paragraphs 15 and 16 of this order, and in the

following manner:

i. handover of the results of the investigation and a copy of the court’s

records as well as a list of all persons detained in connection with the

investigation into the Hariri case, if any, as soon as possible; thus enablingthe Prosecutor to seek or not to seek continued detention of these persons and

their transfer to the Tribunal, if appropriate, in application of Rule 17 (B) ; and

ii. subsequently, in light of the order issued by the Pre-Trial Judge on the

application mentioned under item i), and after hearing the detained persons

and their counsel if appropriate, in accordance with Rule 17 (B), transfer to the

Tribunal of persons who are to be maintained in detention, or release.


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V. – Disposition

FOR THESE REASONS,

IN APPLICATION of Article 4 (2) of the Statute, Rule 17 (A) and (B) and Article

15 of the Agreement,

THE PRE-TRIAL JUDGE

DECLARES the Application to be admissible and founded; and

REQUESTS the Lebanese judicial authority seized with the Hariri case to:

defer to the Tribunal’s competence in this case;

i. as soon as possible and at the latest within 14 days of receiving this

order, refer to the Prosecutor the results of the investigation and a copy of the

court’s records regarding the Hariri case, if any;

ii. as soon as possible and at the latest within 14 days of receiving this

order, refer to the Pre-Trial Judge a list of all persons detained in connection

with the Hariri

case, if any ;iii. during the period elapsing between receipt of the results of the

investigation and the copy of the court’s records referred to under item ii)

above and the issuance of a decision by the Pre-Trial Judge pursuant to Rule

17 (B) on whether or not to continue the detention of those persons detained in

the Hariri case, detain those persons in Lebanon; and

iv. subsequently, subject to the order issued by the Pre-Trial Judge pursuant

to Rule 17 (B) on whether or not to continue the detention of those persons

referred to under item iv) above, transfer to the Tribunal those persons who areto be maintained in detention or release them with immediate effect.

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

Leidschendam, 27 March 2009

Daniel Fransen

Pre-Trial Judge


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Order on Conditions of Detention

“Detention”


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BEFORE THE PRESIDENT

Case No.: CH/PRES/2009/01/rev

President: Judge Antonio Cassese

Registrar: Robin Vincent

Order of: 21 April 2009

Date: 21 April 2009

ORDER ON CONDITIONS OF DETENTION

The Prosecutor:

D.A. Bellemare, MSM, QC

The Head of Defence Ofce:

François Roux

The Government of Lebanon


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1. In my capacity as President of the Special Tribunal for Lebanon (“Tribunal”),

I have been seized of a request by Mr François Roux, Head of Defence Ofce, in

relation to four persons currently detained by the Lebanese authorities.

I. PROCEDURAL HISTORY

2. On 1 March 2009, the Tribunal commenced its operations. The Plenary of

the Judges adopted the Rules of Procedure and Evidence (the “Rules”), the Rules

Governing the Detention of Persons Awaiting Trial or Appeal before the Special

Tribunal for Lebanon or Otherwise Detained on the Authority of the Special Tribunal

for Lebanon (the “Rules of Detention”), and the Directive on the Assignment of

Defence Counsel (the “Directive on Counsel”). These all entered into force on 20

March 2009.

3. On 27 March 2009, at the request of the Prosecutor of the Tribunal (the

“Prosecutor”), the Pre-Trial Judge issued an order directing the Lebanese judicial

authority seized with the case of the attack against Prime Minister Raq Hariri and

others (the “ Hariri case”) to defer to the Tribunal within fourteen days of receipt of

the order.1

4. The Order of 27 March 2009 requested, in accordance with Rule 17, the

Lebanese judicial authority seized of the Hariri case to continue to detain those

persons held in Lebanon in connection with the case from the time of the Prosecutor’s

receipt of the results of the investigation by the Lebanese authority and the copy of

the Lebanese court records until the issuance of a decision by the Pre-Trial Judge.2

5. On 8 April 2009, the Lebanese judicial authorities referred the list of persons

detained to the Pre-Trial Judge. According to this list, the persons detained are Mr

1 Order Directing the Lebanese Judicial Authorities Seized with the Case of the Attack against Prime Minister

Raq Hariri and Others to Defer to the Special Tribunal for Lebanon, Case No. CH/PTJ/2009/01, 27 March2009 (“Order of 27 March 2009”).

2 Id.


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Jamil Mohamad Amin El Sayed, Mr Ali Salah El Dine El Hajj, Mr Raymond Fouad

Azar and Mr Mostafa Fehmi Hamdan (the “detained persons”).

6. On 15 April 2009, the Pre-Trial Judge issued an order conrming that

since 10 April 2009 the detained persons have been under the legal authority of

the Tribunal, though they continue to be detained in Lebanon by the Lebanese

authorities. He ordered that, pursuant to international standards on human rights and

the general principles of international criminal law and procedure and considering

the complexity of the matter at hand, the Prosecutor must le no later than 27 April

2009 his reasoned application according to Rule 17(B) on whether he requests the

continuation of detention for the detained persons.3

7. On 20 April 2009, the Head of the Defence Ofce, after visiting the detention

facility where the detained persons are currently held pursuant to the Order of the

Pre-Trial Judge of 15 April 2009, addressed a letter (the “Request”) to me, in my

capacity as President of the Tribunal, requesting an order that:

(i) any meetings between the lawyers and their clients be privileged and

condential, without any prison staff or other persons being able to listen to, or

record, the communication.

(ii) the detainees be allowed to meet each other, subject to reasonable

security restrictions, for a period of two hours a day; and

(iii) the Registrar, who is responsible for the conditions of detention while

under the authority of the Tribunal, is requested to inform the relevant Lebanese

authorities of this decision.4

I have given an opportunity to the Prosecutor to voice his views on the matter andhe has done so.

3 Order Setting a Time Limit for Filing of an Application by the Prosecutor in Accordance with Rule 17(B) of the

Rules of Procedure and Evidence, Case No. STL/PTJ/2009/03, 15 April 2009 (“Order of 15 April 2009”).

4 Request, p. 2.


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II. COMPETENCE

8. According to the Rules of Detention (Rules 3 and 6 in particular), detention

of persons by the Tribunal is generally under the authority of the Registrar, with

the Chief of Detention being responsible for all aspects of the daily management of

detention. However, these provisions mainly apply when a person is detained in a

detention facility of the Tribunal.5

9. In the present circumstances, the Lebanese authorities are to conduct the daily

management of the detention regime of the detained persons. The Pre-Trial Judge

found that it would be contrary to the requirements of a fair trial and of efciencyand judicial economy to transfer the detained persons to the direct authority of

the Tribunal in the Netherlands until he has heard reasoned submissions from the

Prosecutor as to whether he requests their continued detention or whether he does

not oppose their release.6

10. In order to ensure that the detained persons have an effective remedy against

any violation of their rights during their detention by the Lebanese authorities on

behalf of the Tribunal, the Tribunal must be able to exercise some form of supervisionover their detention. Without such supervision by the Tribunal, the rights of the

detained persons may be gravely compromised and they may be left without any

effective remedy against a potential violation of their rights.7

11. Specically, the powers conferred on the President by Rule 32(D) (according

to which the President “shall supervise the conditions of detention”) render the

provisions of Rule 101(G) (which allows the President to “request modication of

the conditions of detention” when a person is detained in facilities outside the HostState) applicable to the present circumstances. Although the detained persons have

5 See, for example, Rules 83 and 101(G) of the Rules.

6 Order of 27 March 2009, para. 14.

7 On the necessity of an effective remedy for the violation of fundamental rights during detention under Article2(3) of the ICCPR, see, inter alia, Prosecutor v, Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May2005, paras 255 and 324.


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not themselves led a request, Rule 57(F) provides the Head of Defence Ofce with

a right of audience in relation to the rights of suspects or accused.

12. Under the circumstances, and considering that the detained persons are being

held in detention pursuant to the Order of 15 April 2009 under the authority of the

Tribunal, I nd that as President I am competent to entertain the Request.

III. APPLICABLE LAW

A) The Right Freely and Privately to Communicate with Counsel

13. The Statute of the Tribunal (“Statute”) provides in Article 16(4)(b) that an

accused is entitled, inter alia, “to communicate without hindrance with counsel of

his or her own choosing”. Moreover, Rule 163 – modelled upon Rule 97 of the

ICTY Rules of Procedure and Evidence – expressly describes communications

“made in the context of the professional relationship between a person and his legal

counsel as privileged”. Rule 65(F) of the Rules of Detention species that visits of

counsel shall be conducted within sight but not within the hearing of the staff of the

Detention Facility. The rights attaching to suspects or accused in detention under

these provisions are necessarily to be considered applicable, mutatis mutandis, to all

detained persons even if they have not formally been held to be suspects or accused.

14. The right of accused persons to communicate freely and privately with counsel

is laid down in international instruments on human rights. It is enshrined expressly in

the American Convention on Human Rights (Article 8 (2) (d)), and implicitly in the

UN Covenant on Civil and Political Rights (Article 14 (3) (b)) (“ICCPR”) and theEuropean Convention on Human Rights (Article 6 (3) (b)). When the right is simply

implied in the text of the international instrument, it has been subsequently spelled

out in the case law of the relevant supervisory body. This holds true in particular for

the European Court of Human Rights.8

8 In S . v. Switzerland , Judgment of 28 November 1991 (“S. v. Switzerland ”), the Court said that “unlike somenational laws and unlike Article 8 (2) (d) of the American Convention on Human Rights, the EuropeanConvention does not expressly guarantee the right of a person charged with a criminal offence to communicate

with defence counsel without hindrance. That right is set forth, however, within the Council, in Article 93 of


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15. Article 14(3)(b) of the ICCPR – which was ratied by Lebanon on 3

November 1972 and entered into force on 23 March 1976 – provides for the right

“to communicate with counsel of his own choosing”. The Human Rights Committeehas claried that this provision “requires counsel to communicate with the accused

in conditions giving full respect for the condentiality of their communications.

Lawyers should be able to counsel and to represent their clients in accordance with

their established professional standards and judgement without any restrictions,

inuences, pressures or undue interference from any quarter.”9 In a similar vein,

paragraph 93 of the UN Standard Minimum Rules for the Treatment of Detainees

provides that “[i]nterviews between the [untried] prisoner and his legal adviser may

be within sight but not within the hearing of a police or institution ofcial.”10

16. The very broad recognition of the right to communicate freely and privately

with counsel by the international community, and the general attitude taken by

States and international judicial bodies as to its importance, show that the right

is now accepted in customary international law as one of the fundamental human

rights relating to due process. Indeed, the right of an accused person to freely and

condentially communicate with his or her counsel is an indispensable condition for

the effective exercise of most his or her other rights. As the European Court has aptly

noted, “if a lawyer were unable to confer with his client and receive condential

instructions from him without [...] surveillance, his assistance would lose much of

the Standard Minimum Rules for the Treatment of Prisoners (…) The Court considers that an accused’s right tocommunicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in ademocratic society and follows from Article 6 para. 3 (c) (art. 6-3-c) of the Convention. If a lawyer were unable

to confer with his client and receive condential instructions from him without such surveillance, his assistancewould lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical andeffective” (para. 48). See also Brennan v. The United Kingdom, Judgment of 16 October 2001: “an accused’sright to communicate with his advocate out of hearing of a third person is part of the basic requirements of afair trial and follows from Article 6 § 3 (c). (...),The importance to be attached to the condentiality of suchconsultations, in particular that they should be conducted out of hearing of third persons, is illustrated by the

international provisions cited above.” (para. 38) and Lanz v. Austria, Judgment of 21 January 2002 para. 50.

9 HRC, General Comment No. 13: Equality before the courts and the right to a fair and public hearing by anindependent court established by law (Art. 14), 13 April 1984, para. 9.

10 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, heldat Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July

1957 and 2076 (LXII) of 13 May 1977.


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its usefulness”.11 The rights of the defence, of which this right is an indispensable

component, are one of the foundations of the concept of a fair trial.

17. The right to communicate freely and privately with counsel also accrues to a

person suspectedof having committed a crime. Such persons may also nd themselves

in need of condential legal assistance, particularly when held in detention.

18. The right at issue is not, however, unlimited. Other imperative exigencies

relating to the good administration of justice or to the need to prevent crimes may

make it necessary to temporarily restrict the right.12 Thus, for instance, the European

Court of Human Rights has acknowledged that restrictions may be justied when

there is a risk of collusion between the accused and a defence counsel,13 or when an

accused may use a defence counsel to inuence witnesses or tamper with evidence.

19. However, restrictions of the right may only be admissible if they full certain

conditions, namely, that: (i) they are envisaged by law; (ii) they are necessary (that

is, they are rendered indispensable by the need to countervail possible negative

effects); (iii) they are proportionate to the exigency that warrants them (that is, they

are commensurate to and do not exceed the fullment of such exigency – this may

imply that the restriction be of limited duration); and (iv) they are submitted to

regular and judicial scrutiny.

11 See Artico v. Italy, 13 May 1980, para. 33 as well as S. v. Switzerland , para. 48.

12 In Brennan v. United Kingdom, Judgment of 16 October 2001, the European Court of Human Rights stated that“[...] the Court’s case-law indicates that the right of access to a solicitor may be subject to restrictions for goodcause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, hasdeprived the accused of a fair hearing. While it is not necessary for the applicant to prove, assuming such were

possible, that the restriction had a prejudicial effect on the course of the trial, the applicant must be able to be

claim to have been directly affected by the restriction in the exercise of the rights of the defence” (para. 58).13 For instance, in Lanz v. Austria, Judgment of 21 January 2002, the Court said that: “However, the Court cannot

nd that these reasons are sufcient to justify the measure. Surveillance by the investigating judge of thecontacts of a detainee with his defence counsel is a serious interference with an accused’s defence rights andvery weighty reasons should be given for its justication. This was so in the case of Kempers v. Austria wherethe applicant was suspected of being the member of a gang and utmost condentiality was necessary in orderto catch the other members (No. 21842/93, Kempers v. Austria, Dec. 27.2.97, unpublished). In the present casesuch extraordinary features cannot be made out. The Court nds that the domestic courts essentially reliedon a risk of collusion, but this was the very reason for which detention on remand had already been ordered.The restriction on contacts with defence counsel for a person who is already placed in detention on remand

is an additional measure which requires further arguments. The Court cannot nd that the Austrian courts orthe Government have furnished convincing arguments in this respect. (para 52). There has, therefore, been a

violation of Article 6 § 3 (b) and (c) of the Convention” (para. 53).


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20. Likewise, for any detained person, this fundamental right can be restricted

only if such conditions as set out above in relation to accused persons are fullled.

This notion is clearly spelled out in Principle 18 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment,14 which

states that:

1. A detained or imprisoned person shall be entitled to communicate and

consult with his legal counsel.

2. A detained or imprisoned person shall be allowed adequate time and

facilities for consultation with his legal counsel.

3. The right of a detained or imprisoned person to be visited by and to consult

and communicate, without delay or censorship and in full condentiality,

with his legal counsel may not be suspended or restricted save in exceptional

circumstances, to be specied by law or lawful regulations, when it is

considered indispensable by a judicial or other authority in order to maintain

security and good order.

B. The Question of Segregation of Detainees

21. A distinction must be made between the segregation of a detainee from a co-

accused or a co-suspect, on the one hand, and the segregation of a detainee from all

other persons held in the same detention facility. The rationale behind, and the legal

regime for each of these two categories of segregation is different, as shown below.

22. As to the segregation of a detainee from all other detainees, according to the

general principle set out in Rule 41 of the Rules of Detention, a detainee shall not be

segregated from other detainees except for the reasons set out in Rule 42(A). These

are: (i) preserving security and good order in the Detention Facility; (ii) protecting

the detainee or detainees in question; or (iii) preventing any prejudice or otherwise

undermining the outcome of the proceedings against the detainee or detainees or

any other proceedings. While the Rules of Detention are not expressly applicable to

a person detained by State authorities, this provision enshrines a more general rule

relevant to the present circumstances.

14 Adopted by General Assembly resolution 43/173 of 9 December 1988.


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23. Segregation from all other persons detained in a detention facility, if prolonged,

may amount to inhuman or degrading treatment. Article 7 of the ICCPR provides that

“[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The Human Rights Committee’s General Comment on this provision

states that prolonged solitary connement of the detained or imprisoned person may

amount to cruel, inhuman and degrading treatment or punishment prohibited by

Article 7.15

24. The power of prison authorities to order the segregation of a detainee must be

justied on well-founded grounds and be proportionate to the need for the isolation.

Segregation must be reviewed on a frequent basis by a judicial authority and beterminated as soon as the exceptional grounds for imposing it have come to an end.

25. On the other hand, segregation of a detainee from a co-accused or a co-suspect

is often predicated on the need to prevent collusion between persons who may have

been involved in the same crime and may thus have a motive to concoct alibis or

to agree on other designs aimed at undermining their responsibility for the crime of

which they are suspected or accused. Another ground for segregating a detainee from

a co-accused or co-suspect may be the need to prevent one defendant from putting pressure on another co-defendant, or from conspiring to obstruct the proceedings.16

26. International case law has regarded as justied, under certain conditions, this

latter category of segregation. For example, in a recent decision, the International

Criminal Court held that “measures to restrict communication and contact” between

accused “constitute an important restriction of the rights” and “therefore can only be

imposed if the requirements of necessity and proportionality are met.”17 The Court

considered that in the case at issue there was no concrete evidence of collusion that justied segregation.

15 HRC, General Comment No. 20, Prohibition of torture and cruel treatment or punishment (Art. 7), 10 March1992, para. 6.

16 See in this respect, mutatis mutandis, the judgment of the European Court of Human Rights in Gorski v. Poland of 4 October 2005, at paras 56-58.

17 Situation in the Democratic Republic of the Congo in the Case Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01-07, Decision Revoking the prohibition of contact and communication

between Germain Katanga and Mathieu Ngudjolo Chui , 13 March 2008, in particular pp. 9-11.


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27. Likewise, the Co-Investigating Judges of the Extraordinary Chambers in the

Court of Cambodia, in an Order Concerning Provisional Detention Conditions issued

on 20 May 2008, held that “a pre-trial detention regime may be justied, inter alia, bythe need to prevent any collusion between co-accused”. Subsequently, the Pre-Trial

Chamber of the same Court held that “limitations of contacts can only be ordered to

prevent pressure on witnesses or victims when there is evidence reasonably capable

of showing that there is a concrete risk that the charged person might collude with

other charged persons to exert such pressure while in detention. With the passage

of time, the threshold becomes higher as the investigation progresses and the risk

necessarily decreases”.18

28. In summary, segregation of a detainee from another co-detainee allegedly

involved in the same crime may be justied as long as there is a serious risk of

collusion or of a joint attempt to tamper with the evidence or inuence witnesses or

obstruct proceedings. In these circumstances segregation may be warranted provided

it is necessary and proportionate to the risk. With the passage of time the risk may

diminish and the segregation may turn out to be unnecessary or disproportionate. At

that stage it shall be terminated.

IV. GROUNDS FOR THE DECISION

A. The Right to Freely and Privately Communicate with Counsel

29. For the fundamental right of a detained person to communicate with his

or her counsel to be effective, it is imperative that communication between the

detained person and his or her lawyer be privileged, unless the detaining authorities

demonstrate that extraordinary reasons exist to temporarily restrict the right.

30. Taking into account the legal considerations set out above in paragraphs 18 to

20, I nd that, whatever the nature and impact of the original reasons for restricting

the right to freely and privately communicate with counsel, at present any such

18 Extraordinary Chambers in the Courts of Cambodia, Case No. 002/19-09-2007-ECCC/OCIJ (PTC09), Decision

on Nuon Chea’s Appeal Concerning Provisional Detention Conditions, 26 September 2008, para. 21.


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restriction appears to be no longer justied. With the passage of time, and without

any new evidence, any such restriction would be unreasonable and disproportionate

to the need to prevent the risk of collusion, or further crimes.

31. In addition, the Prosecutor has not objected to restrictions of the detained

persons’ rights to freely and privately communicate with counsel.

B. The Question of Segregation of Detainees

32. It appears from the Request and clarications subsequently provided by the

Head of Defence Ofce, that the four detained persons are being held in a building

of the Beirut prison separated from other detention facilities. The four detainees

do not ask to be allowed to mix with the other detainees; they simply request to be

allowed to communicate with one another within the separate building in which they

are being held.

33. While it might be that the segregation of the detainees from each other was

initially justied by one of the grounds mentioned above in paragraphs 26 to 28, it

would seem that any reasonable need for such segregation has ceased to be relevant

at this point in time. Further, with regard to the issue of segregating the detained

persons from each other, the Prosecutor does not consider this regime necessary.

Thus, I nd that only compelling reasons of the type discussed above would justify

refusing the detained persons to meet with each other, if they so request.

V. DISPOSITION

On the strength of the above legal considerations, I hereby:

1) GRANT the request of the Head of Defence Ofce and accordingly;

2) REQUEST the Lebanese authorities

(i) to ensure that the right of the detained persons to freely and privately

communicate with their counsel be fully implemented. It is understood that the

Lebanese authorities may take all security measures they consider necessary


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under the circumstances, including visual surveillance through remote video-

camera, as long as the right to their privileged communication with counsel is

respected; and(ii) to terminate the regime of segregation of the detained persons and

to ensure that, in keeping with any security regime deemed appropriate, the

detained persons be allowed to communicate with each other upon request, for

a period of two hours per day; and

3) REQUEST the Registrar to notify the Lebanese authorities of this

Order and to request their assistance in notifying it to the detained persons.

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

Leidschendam, 21 April 2009

Antonio Cassese

President


34/190

Order Regarding the Detention of Persons Detained in Lebanon in Connection

with the Case of the Attack Against Prime Minister Raq Hariri and Others

“Release”


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THE PRE-TRIAL JUDGE


Before: Judge Daniel Fransen

The Registrar: Mr Robin Vincent

Date: 29 April 2009

ORDER REGARDING THE DETENTION OF PERSONS

DETAINED IN LEBANON IN CONNECTION WITH

THE CASE OF THE ATTACK AGAINST

PRIME MINISTER RAFIQ HARIRI AND OTHERS

The Prosecutor:

Mr D. A. Bellemare, MSM, QC

The Head of the Defence Ofce:

Mr F. Roux


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I. – Procedural Background

1. The Special Tribunal for Lebanon (the “Tribunal”) ofcially commencedfunctioning on 1 March 2009. The judges of the Tribunal, meeting in plenary,

subsequently adopted the Rules of Procedure and Evidence of the Tribunal (the

“Rules”), the Rules Governing the Detention of Persons Awaiting Trial or Appeal

before the Tribunal, and the Directive on Assignment of Defence Counsel. These

documents entered into force on 20 March 2009.

2. On 25 March 2009, the Prosecutor of the Tribunal (the “Prosecutor) applied

to the Pre-Trial Judge for an order directing the Lebanese authorities seized with

the case of the attack against Prime Minister Raq Hariri and others (the “ Hariri”

case) to: i) defer to the competence of the Tribunal; ii) hand over to the Prosecutor

the results of the investigations and a copy of the relevant court records and other

probative material; and iii) submit to the Pre-Trial Judge a list of all persons detained

in connection with the investigation (the “persons detained”). This application was

made under Article 4 (2) of the Statute of the Tribunal (the “Statute”), attached

to the Agreement between the United Nations and the Lebanese Republic on theestablishment of a Special Tribunal for Lebanon (the “Agreement”), itself annexed to

UN Security Council Resolution 1757 (2007) of 30 May 2007 (S/RES/1757 (2007)).

The application was also made under Rule 17 of the Rules.

3. In response to the Prosecutor’s application, the Pre-Trial Judge issued an order

on 27 March 2009 directing the Lebanese judicial authority seized with the Hariri

case to defer to the Tribunal. This order requested the said judicial authority: i) to

defer to the Tribunal’s competence in this case; ii) to refer to the Prosecutor the resultsof the investigation and a copy of the court’s records regarding the Hariri case, if

any; iii) to refer to the Pre-Trial Judge a list of all persons detained in connection

with that case, if any; and iv) between receipt of the results of the investigation and

the copy of the court’s records, and issuance of a decision by the Pre-Trial Judge on

whether or not to continue the detention of those persons detained, to detain those

persons in Lebanon.


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4. The Lebanese authorities referred the list of persons detained to the Pre-Trial

Judge on 8 April 2009. According to that list, the persons detained are: General

Jamil Mohamad Amin El Sayed, General Ali Salah El Dine El Hajj, BrigadierGeneral Raymond Fouad Azar and Brigadier General Mostafa Fehmi Hamdan, in

the framework of adversarial proceedings; and Mr Zuhair Mohamad Said Saddik,

in the framework of in absentia proceedings. This list was appended to a decision

of the Investigating Judge at the Lebanese Judicial Council in the Hariri case dated

7 April 2009, by virtue of which the judge, in addition to deferring to the competence

of the Tribunal, lifted the arrest warrants issued in the framework of adversarial

proceedings for the four generals and in absentia for the last person mentioned.

5. On 10 April 2009, the Lebanese authorities referred to the Prosecutor the

results of the investigation and a copy of the court’s records regarding the Hariri

case. Since that date, the Tribunal has been ofcially seized of this case and the

persons detained have been formally under its authority.

6. On 15 April 2009, the Prosecutor informed the Pre-Trial Judge, at the request

of the latter, that he wished to le his reasoned submissions on whether or not to

continue the detention of the persons detained, within three weeks of 15 April 2009.

The Prosecutor invoked the following circumstances in support of that timeframe:

i) the volume of the records in question, which consisted of 253 les and several

thousand pages, most of which were handwritten and in Arabic; ii) the need to record,

number and summarily translate each document received, before comparing them

with those gathered or received by the United Nations International Independent

Investigation Commission (the “Investigation Commission”) and appraising the

implications for the measures to be taken; iii) the need to proceed with the utmost

diligence; and iv) the gravity of the facts of the case. The Prosecutor did however

state that if his review was completed earlier than envisaged, he would promptly

apprise the Pre-Trial Judge of that fact.

7. On 15 April 2009, the Pre-Trial Judge issued an order setting a time limit

within which the Prosecutor was to le an application on whether or not to continue

the detention of the persons detained. That order stated that, given the fundamental

requirements of a fair trial, the exceptional circumstances of the case and the


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arguments put forward by the Prosecutor in his letter of 15 April 2009, the latter was

to submit his application by midday on 27 April 2009. In the event of exceptional

circumstances, the Prosecutor was, however, permitted to le a reasoned applicationfor extension of this time limit by midday on 22 April 2009. In the order, the Pre-

Trial Judge also noted the fact that, in a decision of 7 April 2009, the Investigating

Judge at the Lebanese Judicial Council in the Hariri case had lifted “[TRANSLATION]

the arrest warrant issued in absentia” for Mr Zuhair Mohamad Said Saddik.

8. No extension of the time limit was sought and the Prosecutor made his

submission to the Pre-Trial Judge by midday on 27 April 2009 under Rule 17 of the

Rules of Procedure and Evidence (the “Submission”).

9. On 27 April 2009, the Pre-Trial Judge scheduled the public hearing provided

for in Rule 17, at 2 p.m. on 29 April 2009.

II. – The Submission

10. Under Article 4 of the Statute and Rules 2, 17, 63, 68, 101 and 102 of the

Rules,1 the Prosecutor submitted that the Pre-Trial Judge order the release, with

immediate effect, of Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj,

Raymond Fouad Azar and Mostafa Fehmi Hamdan.2 He noted moreover that, given

the special circumstances of this case, it would be appropriate to order measures to

ensure the safety of these individuals, if released.3

11. In support of his Submission, the Prosecutor cited the fact that, under Rule 63

(D), a person may not be detained as a suspect for more than ninety days, unless an

indictment has been conrmed by the Pre-Trial Judge by the expiry of that period.4

1 Submission, paras 18 to 22.

2 Ibid ., para. 34.

3 Ibid .

4 Ibid , para. 19.


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The Prosecutor submitted therefore that he may not seek provisional detention of a

suspect, unless he is in a position to indict within a very short timeframe.5

12. Now, in the case in hand, having examined thoroughly all the material in the

case le, collected by the Investigation Commission, the Lebanese authorities, and

his Ofce, the Prosecutor considered that the information currently available to him

was insufciently credible to warrant indictment of the persons detained.6 In light of

these circumstances and of the principle of presumption of innocence, the Prosecutor

considered that there was no cause, at this stage in the proceedings, to hold them in

detention.

III. – Applicable Law

13. The provisions to be considered in connection with the present order are

Article 4 (2) of the Statute, Rules 17 (B), 63 (A) to (D), 101 (A) and (B), and 102 (A)

of the Rules, and Article 15 of the Agreement.

14. Article 4 of the Statute governs the jurisdiction concurrently exercised by theTribunal and the Lebanese courts. Paragraph 2 thereof addresses the Hariri case

specically and reads as follows:

2. Upon the assumption of ofce of the Prosecutor, as determined by the

Secretary-General, and no later than two months thereafter, the Special Tribunal

shall request the national judicial authority seized with the case of the attack

against Prime Minister Raq Hariri and others to defer to its competence.

The Lebanese judicial authority shall refer to the Tribunal the results of the

investigation and a copy of the court’s records, if any. Persons detained inconnection with the investigation shall be transferred to the custody of the

Tribunal.

15. Rule 17 implements the provisions of Article 4 of the Statute and sets out the

procedure regarding continued detention or release of persons detained. Paragraphs

5 Ibid ., para. 25.

6 Ibid ., paras 23 to 33.


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(A) to (D) address the Hariri case specically. Given that the Prosecutor is not seeking

continued detention of the persons detained, only paragraph (B) (i) is relevant. It

reads as follows:

(B) Once he receives the list referred to in (A) (iii), the Pre-Trial Judge shall

forward it to the Prosecutor. As soon as practicable, the Prosecutor shall le

reasoned submissions together with any supporting material stating, for each

person on the list, whether he requests the continuation of his detention or he

does not oppose release by the Pre-Trial Judge and, in the latter event, whether

the release should be subject to conditions in accordance with Rule 102.

i) For each person on the list whose release the Prosecutor does not oppose,the Pre-Trial Judge shall decide within a reasonable time whether or not to

direct the Lebanese judicial authorities to release the person with immediate

effect, subject to the necessary measures to ensure the safety of the person in

question, if requested. His decision shall be rendered in public in the presence

of the Head of Defence Ofce and the Prosecutor. The Prosecutor’s submission

under paragraph (B) shall be made public at that time.

16. Rule 63 addresses transfer and provisional detention of suspects. Paragraph

(D) thereof reads as follows:

(D) The provisional detention of a suspect shall be ordered for a period not

exceeding thirty days from the date of the transfer of the suspect to the seat of

the Tribunal. At the end of that period, at the Prosecutor’s request, the Pre-Trial

Judge may decide, subsequent to an inter partes hearing of the Prosecutor and

the suspect or his counsel, to extend the detention for a period not exceeding

thirty days, if warranted by the needs of the investigation. At the end of

that extension, at the Prosecutor’s request, the Pre-Trial Judge may decide,

subsequent to an inter partes hearing of the Prosecutor and the suspect or hiscounsel, to extend the detention for a further period not exceeding thirty days,

if warranted by special circumstances. The total period of detention shall in no

case exceed ninety days, at the end of which, in the event the indictment has

not been conrmed and an arrest warrant signed by the Tribunal, the suspect

shall be released or, if appropriate, delivered to the authorities of the requested

State.


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17. Rule 101 governs detention on remand. Only paragraphs (A) and (B) thereof

are relevant. They read as follows:

(A) Upon (i) the transfer of a suspect or accused to the Tribunal pursuant to

Rule 83 or (ii) the transfer of a detained individual to the Tribunal, including

transfer pursuant to Article 4 of the Statute, or (iii) upon the arrest of an accused

in accordance §zwith Rule 79 following his voluntary appearance before the

Tribunal, the Pre-Trial Judge or a Chamber, as appropriate, shall satisfy itself

that the person has been informed of the crimes of which he is accused or

suspected and of his rights under the Statute and the Rules, including the right

to apply for provisional release.

(B) A person transferred to the Tribunal, who is arrested and detained under

paragraph (A), or his counsel, may apply for provisional release. In deciding

such an application, the Pre-Trial Judge or a Chamber, as appropriate, shall

apply the test set out in Rule 102 and give reasons for his or its decision.

18. Rule 102 (A) enumerates the conditions that must be met if provisional release

is to be refused. It reads as follows:

(A) The Pre-Trial Judge or a Chamber, as appropriate, may refuse provisional

release only if satised that provisional detention is necessary: (i) to ensure

the person’s appearance at trial; (ii) to ensure that the person does not obstruct

or endanger the investigation or the court proceedings, for instance by posing

a danger to, or intimidating, any victim or witness; or (iii) to prevent conduct

of a kind of which he is suspected. Such release shall not be made in the Host

State without its consent.

19. Article 15 of the Agreement governs cooperation between the Tribunal and

the Lebanese authorities. Paragraph 1 thereof reads as follows:

1. The Government shall cooperate with all organs of the Special Tribunal,

in particular with the Prosecutor and the defence counsel, at all stages of the

proceedings. It shall facilitate access of the Prosecutor and defence counsel to

sites, persons and relevant documents required for the investigation.


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IV. – Jurisdiction

20. The Pre-Trial Judge is competent to rule on the merits of the Submission,

pursuant to Rules 17, 101 and 102 as referred to above.

V. – Discussion

A. – Preliminary observations

21. The following three preliminary observations are apposite.

22. Firstly, provisional detention is an exceptional measure, which is only

warranted where it proves strictly necessary7 and under the circumstances set out in

the Rules.

23. Secondly, the Pre-Trial Judge shall only address the matter of provisional

detention, at the current stage of the investigation, of persons detained, who are

presumed innocent. The order is also without prejudice to any possible future prosecution before the Tribunal.

24. Finally, it is important to note the exceptional situation in which the order is

being made: since 10 April 2009, the persons detained have been held not as the result

of a decision to arrest made by the Prosecutor, but as a consequence of the application

of Article (4) (2) of the Statute, which provides that deferral of competence by the

7 The Human Rights Committee has repeated afrmed that “pre-trial detention should be the exception” (HumanRights Committee, Hill v. Spain, Communication No. 525/1993, 2 April 1997, para. 12.3). Furthermore, itconsiders that remand in custody must not only be lawful, but also “reasonable ... and necessary in all

circumstances” (Human Rights Committee, Van Alphen v. The Netherlands, Communication No. 305/1988,23 July 1990, para. 5.9 and Human Rights Committee, Spakmo v. Norway, Communication No. 631/1995,5 November 1999, para. 6.3). Similarly, the case law of the European Court of Human Rights holds that“[TRANSLATION] The very essence of paragraph 3 [of Article 5 of the Convention] […] is the right tofreedom pending a criminal trial. […] Fundamentally, the purpose of Article 5 § 3 is to impose provisionalrelease as soon as detention ceases to be reasonable […]. In light of this, the Court considers that provisionaldetention should be seen as the last solution, that is to say only warranted when all the other available options

prove insufcient” (Judgment, Lelièvre v. Belgium, 21 March 2008, para. 97).


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Lebanese judicial authority results in those detained in connection with the Hariri

case being transferred to the custody of the Tribunal.

B. – The legal standards applied to the Submission

25. Pursuant to Article 11 of the Statute, the Prosecutor is responsible for the

investigation and prosecution of persons thought to be responsible for the crimes

falling within the jurisdiction of the Tribunal. As he rightly points out,8 in so doing,

the Prosecutor must act, not merely as a party to the proceedings, but also as an

agent of Justice, representing and safeguarding the public interest. In that capacity,

in accordance with Rule 55 (C), he shall “assist the Tribunal in establishing thetruth and protect the interests of the victims and witnesses. He shall also respect the

fundamental rights of suspects and accused”. Moreover, having directed the work

of the Investigation Commission, which began investigating in June 2005, having

conducted his own investigations and received the records provided by the Lebanese

authorities, the Prosecutor has an in-depth knowledge of the Hariri case le. That

knowledge enables him to determine, cognizant of the facts, whether or not the

persons detained must be placed or kept in detention.

26. Without prejudice to the investigative powers vested in him by the Rules,9

the Pre-Trial Judge should not substitute himself for the Prosecutor, to seek out, by

reviewing the case le, incriminating evidence which might or might not justify

the provisional detention of an individual. It is only in the event that the Prosecutor

applies for a person to be placed in provisional detention that the Pre-Trial Judge

must examine all relevant evidence in the case le, to ensure that the fundamental

rights of the person are safeguarded.

27. Given that the Prosecutor has requested the release of the persons detained in

the case at hand, it is not incumbent upon the Pre-Trial Judge to review the material

in the case le, collected by the Prosecutor and the Investigation Commission in

the course of their investigations, and provided by the Lebanese authorities on 10

April 2009. Rather, he must rule on the merits of the Submission for an order for

8 Submission, para. 23.

9 Cf . Rules 89 (I) and 92.


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release of the persons detained, solely based on the arguments put forward by the

Prosecutor in support of the Submission and with due regard to the discretionary

power of the Prosecutor in this domain. As such, the Pre-Trial Judge must connehimself to considering: i) the legal conditions which apply to provisional detention;

and ii) whether the way the Prosecutor has applied those conditions to the facts of the

case in hand is not manifestly unreasonable.10

C. – The legal conditions governing provisional detention

28. As recalled above, on 7 April 2009, the Investigating Judge at the Lebanese

Judicial Council seized of the Hariri case lifted the arrest warrants issued for GeneralJamil Mohamad Amin El Sayed, General Ali Salah El Dine El Hajj, Brigadier General

Raymond Fouad Azar and Brigadier General Mostafa Fehmi Hamdan. When these

persons ofcially came under the authority of the Tribunal on 10 April 2009, they

were placed in “custody” for the period of time required by the Prosecutor to review

the Hariri case le and to le submissions as to whether or not they should be placed

in provisional detention.

29. Rule 102 (A) provides that a person must only be placed in provisional detentionif it is necessary: i) to ensure the person’s appearance at trial; (ii) to ensure that the

person does not obstruct or endanger the investigation or the court proceedings, or

(iii) to prevent conduct of a kind of which he is suspected.

30. However, it should rst be established, in accordance with Rule 101 (A) and

current international standards and case law,11 whether the person is suspected or

accused of a crime within the jurisdiction of the Tribunal. Indeed, as the European

Court of Human Rights has emphasized “[t]he persistence of reasonable suspicion

10 Against this background, the Pre-Trial Judge’s power is broadly comparable to that exercised by the AppealsChamber of the Criminal Tribunals for former Yugoslavia and for Rwanda when called upon to reviewa decision made by a trial chamber exercising its discretionary power. Cf . In particular ICTY, Decision oninterlocutory appeal of the Trial Chamber’s decision on the assignment of defense counsel, Slobodan Milosevićv. The Prosecutor , IT-02-54-AR73.7, 1 November 2004, paras. 9 & 10; and ICTY, Decision on interlocutoryappeal of the Trial Chamber’s decisions on provisional release, The Prosecutor v. Zdravko Tolimir, Radivoje

Miletic and Milan Gvero, IT-04-80-AR65.1, 19 December 2005, para. 4.

11 Cf . Article 9 of the Covenant on Civil and Political Rights; Article 5 paras. 1 and 3 of the European Conventionfor the Protection of Human Rights; Article 7 of the American Convention on Human Rights. Cf . also Article107 of the Lebanese Code of Criminal Procedure.


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that the person arrested has committed an offence is a condition sine qua non for

the validity of the continued detention”.12 If that condition is not met, reviewing the

other conditions for provisional detention set out in Rule 102 becomes superuous.

31. Rule 2 denes a suspect as “a person who the Prosecutor has reasonable grounds

to believe has committed a crime” and an accused as “a person against whom one

or more counts in an indictment have been conrmed in accordance with Article 18

(1) of the Statute and Rule 68 (H)”. Rule 68 (B) provides that the Prosecutor submit

an indictment, together with supporting material, to the Pre-Trial Judge “if satised

in the course of an investigation that there is sufcient evidence that a suspect has

committed a crime that may fall within the jurisdiction of the Tribunal”.

32. Finally, it should be noted that, according to Rule 63 (D), a suspect may not

be placed in provisional detention for a period exceeding ninety days in total, unless

an indictment has been conrmed and an arrest warrant issued by the Tribunal by the

expiry of that period.

D. – Analysis of the merits of the case

33. In support of his Submission, the Prosecutor recalled that in order to apply

for the provisional detention of a suspect, he must be in a position to indict within

the timeframe set out in the Rules. However, the Prosecutor considered that the

information available to him at this point in time did not enable him to indict

the persons detained. He thus submitted that the question of whether provisional

detention was necessary did not arise.13

34. The Prosecutor stated that in arriving at this conclusion, he had:

12 ECHR, Judgement, Letellier v. France of 26 June 1991, para. 35. Cf . also ECHR, Judgement, Stögmüller v. Austria of 10 November 1969, para. 4, and ECHR, Judgement, Lelièvre v. Belgium of 21 March 2008, para. 94.This case law is in line with that of the Inter-American Court of Human Rights (Judgement, Acosta-Calderón v.

Ecuador , 24 June 2005, para. 75) and of the United Nations Human Rights Committee. In Communication No.16/1977, Monguya Mbenge v. Zaire of 25 March 1983 (para. 20), the Committee afrmed that, insofar as thestate had not alleged charges against the person, the latter was arbitrarily detained in violation of Article 9 of theCovenant.

13 Submission, para. 25.


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i. thoroughly reviewed all relevant material and information available at this

point in time, whether gathered by his Ofce, the Investigation Commission,

or received from the Lebanese authorities;14

ii. taken into account and reviewed the statements made by the persons

detained and by others that relate to the detained persons and had assessed

their credibility;15

iii. reviewed relevant communications data and all other material, including

physical evidence collected;16

iv. reviewed the forensic assessments made;17

v. reviewed the lings and decisions made in relation to motions for release

led by the detained persons and their counsel before the Lebanese authorities;18

vi. taken account, in light of a review of all this information, of inconsistencies

in the statements of key witnesses and of a lack of corroborative evidence to

support these statements;19 and

vii. taken account of the fact that some witnesses had modied their statements

and one key witness had expressly retracted his original statement incriminating

the persons detained.20

35. The Pre-Trial Judge considers that the Prosecutor could theoretically seek

provisional detention under Rule 63 of a person as a suspect, if he believes he has

sufcient evidence to do so. It would then be incumbent upon him, at the end of

a thirty-day period, which could be extended twice, to assess whether, in light of

the evidence collected by that date, there were grounds to indict the suspect and, if

appropriate, then apply for extension of the provisional detention.

14 Ibid ., para. 27.


16 Ibid .

17 Ibid .

18 Ibid .


20 Ibid .


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36. However, as pointed out in paragraph 26 of the present order, it does not

behove the Pre-Trial Judge to exercise, in the place of the Prosecutor, the power to

appraise, on the basis of the factual evidence available, whether a person is a suspectand whether it is appropriate to indict and, if so, to apply for provisional detention. In

other words, the Prosecutor alone is in a position to evaluate whether – and in what

timeframe – he is in a position to consider a person a suspect and, if necessary, to

indict that person.

37. In assessing the reasonableness of the Prosecutor’s conclusions in line with

paragraph 27 of this order, the Pre-Trial Judge notes the fact that the Prosecutor does

not intend to indict the persons detained within the timeframe set out in Rule 63. Healso notes that, in arriving at this conclusion, the Prosecutor has based himself on the

information listed above and, in particular, on the fact that he has reviewed the entire

le anew, notably in light of the documents provided by the Lebanese authorities, that

some witnesses have modied their statements and that a key witness has expressly

retracted his original statement, which incriminated the persons detained. Finally,

the Pre-Trial Judge notes the context in which the Submission is made, that is to say

the detention of these persons in Lebanon since 30 August 2005.

38. Against this background, and given the succinct, but sufcient, information

and considerations presented by the Prosecutor, the Pre-Trial Judge considers that

the conclusions reached by the Prosecutor are not unreasonable to the point that

he might have made a manifest error of judgement in exercising his discretionary

power.

39. In conclusion, the Pre-Trial Judge notes that the persons detained cannot, at

this stage in the investigation, be considered as either suspects or accused persons inthe proceedings pending before the Tribunal. As a result, in application of the Rules,

they do not meet the conditions sine qua non to be placed in provisional detention,

or even to be released subject to conditions.

40. Analysis of the conditions provided for in Rule 63 (B) (iii) and 102 (A) is thus

moot.


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Release

VI. – Disposition

FOR THESE REASONS,

IN ACCORDANCE WITH Article 4 (2) of the Statute, Rule 17 (B), 63 (A) to

(D), 101 (A) and (B) and 102 (A) of the Rules, and Article 15 of the Agreement;

THE PRE-TRIAL JUDGE

ORDERS, unless they are held on another basis, the release of Messrs Jamil

Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar and

Mostafa Fehmi Hamdan;

INSTRUCTS the Lebanese authorities immediately to take the measures necessary

to ensure the safety of Messrs Jamil Mohamad Amin El Sayed, Ali Salah El Dine El

Hajj, Raymond Fouad Azar and Mostafa Fehmi Hamdan, in compliance with their

obligation to cooperate with the Tribunal;

INSTRUCTS the Lebanese authorities to enforce the present order;

RULES that, unless the parties concerned, or any one of them, le a notice of appealat the Registry of the Tribunal or expressly waive that right in advance, the present

order shall take effect upon expiry of the time-limit for appeal as provided in Rule

102 (C), (D) and (E); and

DIRECTS the Registrar to notify this order to whom it may concern, to oversee

proper enforcement hereof, and to notify the Lebanese authorities of any appeal led.

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

Leidschendam, 29 April 2009

Daniel Fransen

Pre-Trial Judge


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Order Relating to the Jurisdiction of the Tribunal to Rule on the Application

by Mr El Sayed Dated 17 March 2010 and Whether Mr El Sayed Has

Standing Before the Tribunal

“Jurisdiction and Standing PTJ”


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THE PRE-TRIAL JUDGE


Before: Judge Daniel FransenActing Registrar: Mr Herman von Hebel

Date: 17 September 2010

Original language: French

Type of document: Public

ORDER RELATING TO THE JURISDICTION OF THE TRIBUNAL

TO RULE ON THE APPLICATION BY MR EL SAYED DATED 17MARCH 2010 AND WHETHER MR EL SAYED HAS STANDING

BEFORE THE TRIBUNAL

Counsel:

Mr Akram Azoury

Ofce of the Prosecutor:Mr Daniel Bellemare, MSM, QC

Defence Ofce:

Mr François Roux


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Jurisdiction and Standing PTJ

I. – Summary of the Proceedings:

1. On 17 March 2010, Mr Jamil El Sayed (the “Applicant”), represented by hisCounsel, Mr Akram Azoury, submitted an application before the President of the

Special Tribunal for Lebanon (the “President” and the “Tribunal”, respectively)

requesting the “release of evidentiary material related to the crimes of libellous

denunciations and arbitrary detention” (the “Application”).

2. On 15 April 2010, the President issued an order assigning the matter to the

Pre-Trial Judge in order that he may: i) pronounce on whether the Tribunal has

jurisdiction over the Application and whether the Applicant has standing before theTribunal; and ii) in the event of an afrmative response to these two questions, rule on

the merits of the Application.1 After stating that every individual has an inalienable

right, albeit not an absolute right, to have access to justice,2 the President noted that

according to the Applicant, the Lebanese courts have deprived him of this right by

nding that they have no jurisdiction to rule on the request for evidentiary material

related to libellous denunciations made against him and on which, according to him,

his arbitrary detention from 3 September 2005 to 29 April 2009 was based.

3

ThePresident also observed that, according to the Applicant, this material, which is now

in the possession of the Tribunal, is necessary to sue the authors of such accusations

before competent national courts.4

3. On 21 April 2010, in order to rule on the Application in accordance with the

President’s Order, the Pre-Trial Judge issued an order inviting the Applicant and the

Prosecution to put forward their respective arguments on the matters relating to the

jurisdiction of the Tribunal and the standing of the Applicant.

5

1 Order Assigning Matter to Pre-Trial Judge, 15 April 2010, para. 39.

2 Idem, paras 20 to 36.

3 Id. paras 7, 8 and 38.

4 Id. paras 9 and 38.

5 Scheduling Order for Determination of the Application of Mr Jamil El Sayed Dated 17 March 2010, 21 April2010, pages 3 and 4.


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4. In accordance with the time limits set out in the Scheduling Order of the Pre-

Trial Judge dated 21 April 2010, the Applicant led submissions on 12 May 2010 (the

“Applicant’s Submissions”) and the Prosecutor led his response (“Prosecution’sResponse”) on 2 June 2010. They then led submissions respectively on 17 June

2010 (the “Applicant’s Reply”) and on 23 June 2010 (“Prosecution’s Rejoinder”).

5. On 25 June 2010, the Pre-Trial Judge set 13 July 2010 as the date for a

public hearing to allow the Applicant and the Prosecutor to present their arguments

orally and notably to examine the possibility for the Applicant to have access to the

requested material during the investigation.6

6. During the public hearing on 13 July 2010, the Applicant and the Prosecutor

put forward their arguments and the Head of Defence Ofce also provided his views.

II. – Subject matter of the Application:

7. According to the Application,7 the Applicant requests the following documents:

- a certied copy of the records of the Applicant’s complaints that were

forwarded to the Tribunal by the Lebanese authorities on 1 March 2009;

- a certied copy of the records of the witness statements which allegedly

implicated him directly or indirectly in the assassination of Raq Hariri;8

- the reports provided to the Lebanese Prosecutor relating to the assessment of

the above-mentioned statements and in particular the report by Mr Brammertz

which was provided on 8 December 2006;

- the opinion of Mr Bellemare regarding the detention of the Applicant and the

other detainees, which was allegedly forwarded to the Lebanese Prosecutor

General; and

6 Scheduling Order for a Hearing, 25 June 2010, paras 8 and 9.

7 Application, 17 March 2010, pages 7 and 8.

8 For reasons of condentiality, the names of the persons cited in the Application are not mentioned in this Order.


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- any other piece of evidence “necessary for prosecution of the offences” that

the President might possess.

III. – The arguments of the Applicant and the Prosecution:

8. The Pre-Trial Judge shall summarise successively the arguments set out in the

Applicant’s Submissions (A), the Prosecution’s Response (B), the Applicant’s Reply

(C) and the Prosecution’s Rejoinder (D) as follows:

A. – The Applicant’s Submissions:

9. The Applicant presents three main arguments: i) between 30 August 2005 and

7 April 2009, his rights to have access to his own le and to a judge to rule on

the legality of his detention were continuously violated;9 ii) since 7 April 2009,

the Tribunal has had sole jurisdiction to rule on his request;10 and iii) having been

detained under the authority of the Tribunal from 7 to 29 April 2009, the Applicant

has standing before the Tribunal, one of the organs of which (specically, the Ofce

of the Prosecutor) has an obligation to hand over the material from his own le to

him.11

10. With regard to the rst argument, the Applicant adduces:

the following facts: i) on 29 August 2005, the Applicant was arrested and

then transferred to the headquarters of the United Nations International

Independent Investigation Commission (the “Investigation Commission”)

where he was detained for four days as a suspect on the basis of false witness

statements;12 ii) on 3 September 2005, the Applicant was heard by a Lebanese

Investigating Judge, then detained until 7 April 2009,13 on the basis of an arrest

warrant issued by that judge, without the documents on which his detention

9 Applicant’s Submissions, paras 3 to 29.

10 Idem, paras 30 to 33.

11 Id . paras 35 to 37.

12 Id . para. 9.

13 Id. paras 10 and 11.


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was based being passed on to him;14 iii) from 3 September 2005 to 7 April

2009, the Investigating Judge neither heard the witnesses referred to in point

i), nor did he take any investigative measures in respect of the Applicant;15

iv) during this same period, the Applicant was not able to have access to his

own case le or to a judge for him to rule on the legality of his detention,

despite repeated requests made to the Investigation Commission, the Lebanese

judicial authorities and to the United Nations Security Council (the “Security

Council”);16 v) the unlawful nature of the Applicant’s detention is illustrated by

the fact that on 27 and 29 April 2009, the Prosecutor and the Pre-Trial Judge

of the Tribunal respectively requested and ordered the release of the Applicant

and recognised that the witnesses mentioned above were not credible;17 vi)

the Applicant brought a civil action before other Investigating Judges in orderto bring proceedings against “[…] those responsible for the crimes against

him and closely connected to his arbitrary detention […]”18 but those Judges

all declared themselves to be without jurisdiction;19 vii) in breach of the

principle of the separation of powers, the Lebanese Justice Minister ordered

the competent courts not to rule on the applications led by the Applicant;20

viii) the Applicant’s detention was arbitrary, as recognised by the Working

Group on Arbitrary Detention set up within the United Nations Ofce of the

High Commissioner for Human Rights;21 and

the following points of law: i) the right to seize an independent judge and the

right of access to the case le are distinct and independent of each other, the

rst is an absolute right, the second “is separate from the charge on which the

detention is based and must be respected rigorously and absolutely, particularly

when detention is arbitrary”;22 ii) the European Court of Human Rights (the

“ECHR”) has stated on several occasions that the right to access the investigation

14 Id. para. 10.15 Id. para. 13.

16 Id. para. 16 to 18.

17 Id. para. 19.

18 Id. para. 24.

19 Id . paras 22 to 24.

20 Id. para. 26.

21 Id. para. 28.

22 Id. para. 5.


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le “[…] is of particular importance when the legality of detention is being

challenged”;23 and iii) “[d]espite the fact that the two aforementioned rights

are independent, it emerges that in the present case exercising the right to legalremedy is dependent on the right to access being respected. An infringement of

the right of the Applicant to access the investigation le automatically deprives

him of his right to seek legal remedy from a national judge.”24

11. With regard to the second argument, the Applicant sets out:

the following facts: although following the amendments made to its Rules of

Procedure and Evidence (the “Rules”), the Tribunal has no jurisdiction to rule

on the issue of the veracity of the witness statements on which the Applicant’s

detention was based, the Tribunal must allow him to access these documents

in order for him to be able to bring proceedings before the competent Lebanese

courts;25 there are several reasons for this: i) from 7 to 29 April 2009, he was

detained under the authority of the Tribunal without valid legal basis since, in

his deferral decision of 7 April 2009, the Investigating Judge had cancelled

the arrest warrant for him and the Prosecutor of the Tribunal had not opened

any investigation to charge him;26 ii) during that same period, the Applican

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