Special Tribunal for Lebanon (STL) acting registrar Herman von Hebel said that the tribunal’s indictment will not be revealed to the public for several months, as the court’s prosecutor, Daniel Bellemare, will submit it to the pretrial judge in the upcoming weeks.
In an interview with The Daily Star published on Tuesday, von Hebel confirmed that Bellemare would file his indictment with pretrial judge Daniel Fransen soon.
The acting registrar also said that Fransen is expected to be working on the indictment in January.
“Once Fransen has the indictment, he will likely launch proceedings with the court’s appeals chamber so that he can clarify legal issues raised by the indictment,” the daily quoted von Hebel as saying.
How does this work
According to STL sources the draft of the indictment includes a summary of the prosecutor’s evidence and the outlines of his case against the person (or people) he ( Daniel Bellemare) is accusing. It’s the job of the pre-trial judge, Daniel Fransen (who is not one of the judges that will decide on the case at the end of a trial) to review the prosecutor’s case and decide if it is strong enough to take to trial. There is no specified time-limit for the pre-trial judge’s review set out in the STL’s rules.
Review of the indictment is done on a prima facia (“at first glance”) basis, meaning the pre-trial judge will receive an overview of the prosecutor’s case, not the actual evidence. For example, the indictment might say, “We accuse John Doe of committing the crime because we can prove he bought explosives, purchased a van and was present in the area when the crime happened.”
The prosecutor does not have to provide his actual evidence (receipts, photographs, witnesses, fingerprints, etc.) to the pre-trial judge. The pre-trial judge, rather, reads the indictment and summary of evidence and decides that if all of this is true, the prosecutor does (or does not) have a case to bring to court. During a trial, of course, the prosecutor will have to provide all of his actual evidence, and winning a case is far harder than getting the pre-trial judge to confirm an indictment.
After reviewing the indictment and summary of evidence (called “supporting materials” by the STL), the pre-trial judge can request more information and evidence from the prosecutor if he is not convinced by the indictment, reject the indictment completely or in part, or confirm the indictment completely or in part.
If the indictment is completely rejected, the prosecutor will have to draft a new one. Depending on why the pre-trial judge rejected it, the prosecutor might have to continue investigating and finding additional evidence to build a case.
If only parts are rejected, the prosecutor can simply move on or re-submit amended versions of the rejected parts with more evidence to make his case. For example, if the draft accuses four people, but the pre-trial judge thinks the evidence against one is weak, the pre-trial judge will only confirm indictments against three people. The prosecutor can then try strengthening his case against the fourth person or go ahead with a trial against only three people.
Should the prosecutor want to indict a person (or people) for committing a crime other than the Hariri assassination committed between October 1, 2004, and December 12, 2005, he has to submit a motion to the pre-trial judge, similar to the draft indictment, laying out his basic case why the crime is connected to the assassination. The pre-trial judge then decides on whether or not the crime is connected based on the same prima facia basis used to confirm or reject an indictment. The prosecutor or defense can challenge this ruling before the Appeals Chamber.
If the prosecutor wants to indict a person (or people) for a crime committed after December 12, 2005, he has to alert the tribunal’s president who then alerts the UN “so that the Security Council and the government of Lebanon may determine whether or not to grant the tribunal jurisdiction over the alleged crime,” according to rule 12 of the tribunal’s rules of evidence and procedure.
Once an indictment is confirmed, the entire document is made public unless, “in exceptional circumstances,” the prosecutor or defense requests “in the interest of justice” that the indictment remain confidential, or sealed, according to rule 74. The party requesting confidentiality has to convince the pre-trial judge to keep the indictment sealed. If convinced, the pre-trial judge will seal it, and the indictment will not be made public until the pre-trial judge orders it to be unsealed.
After the indictment is confirmed and translated, if need be, the pre-trial judge will issue either a summons to appear for any person or people alleged to have committed a crime, or an arrest warrant, if the accused will not willingly appear at trial; to ensure the accused does not obstruct court proceedings; or to prevent the accused from committing more crimes similar to the one he or she is accused of committing.
Finally, the accused will be served with either a summons to appear, or an arrest warrant, as well as copies of the indictment and the “rights of the accused,” defined in the tribunal’s rules.
If the accused can be served court documents, he or she will then appear before the tribunal to be formally charged and the pre-trial phase of the proceedings will begin, which includes the prosecutor giving evidence and documents to the defense so the accused can prepare his or her case.
If after “reasonable attempts” the accused cannot be served, the president of the tribunal can, after consulting the pre-trial judge, decide to begin advertising the names of the accused in an effort to inform him or her of the need to appear before the tribunal, according to rule 76.
After 30 calendar days if the accused has still not been reached, the tribunal will proceed to conduct a trial in absentia, i.e. with the accused absent.
While anticipation and tensions in Lebanon are running high in the lead-up to the unveiling of an indictment, it will only be the first act in a play that could run for quite a while. Now lebanon