The Special Tribunal for Lebanon ( STL) has issued a press release on June 30 explaining the terms used in the the confirmed indictment relating to the assassination of former PM Rafik Hariri and others . The press release was issued after the Lebanese authorities announced that they have received a confirmed indictment.
A confirmed indictment
The confirmation of an indictment does not mean that the person(s) named in the indictment is/are guilty of the crimes of which they are accused. It simply confirms that the case put forward by the Prosecutor has met the burden of proof required at this stage of the process – prima facie evidence. In simple terms this means that if this evidence were presented uncontested at the trial, it would lead to a conviction.
The accused is innocent until proven guilty.
Trials at the STL
One of the great strengths of international tribunals is judicial independence. Trials at the STL will in principle be heard in public before highly experienced and independent judges.
The trials will be evidence-based and the prosecution must prove, beyond reasonable doubt, that an accused committed the crimes he/she are charged with. If an accused person does not have sufficient funds to pay for his/her legal representation, defence lawyers may be paid for by the tribunal.
The Pre-Trial Judge, Daniel Fransen, has issued arrest warrant(s) against the person(s) who are accused of the crime(s) set out in the indictment. This is in response to a request by the Prosecutor. There are several reasons for issuing arrest warrant(s), including:
• ensuring the appearance of an accused at the tribunal
• making sure that an accused person does not threaten the continuing investigations or court proceedings
• preventing an accused person from committing a similar crime to that of which he is accused.
The Registrar has submitted the warrant(s) of arrest to the Lebanese authorities. This request may also be sent to relevant international authorities including INTERPOL.
The Lebanese authorities must inform the President of the STL within 30 days after the confirmation of the indictment of the measures the state has taken to arrest the person(s) named in the indictment.
If after these 30 days no individual(s) is/are arrested and if the STL President considers that reasonable attempts to serve the indictment have been made, he may order a public advertisement after consulting the Pre-Trial Judge. The Registrar would then send an advertisement calling on the accused to surrender to the Lebanese authorities for publication in the media.
When an accused is arrested the Lebanese authorities with the assistance of the STL Registrar, will arrange the transfer of the individual to the detention facilities of the tribunal. He will then make an initial appearance in the STL courtroom to be formally charged. The judges will ensure that:
• the right of the accused to legal representation is respected
• the indictment has been read to the accused in a language he understands and that he understands the charges against him
• the accused has been informed that in this initial appearance he can plead guilty or not guilty to one or more counts. If he does not plea at this initial appearance he will be called upon to enter a plea of guilty or not guilty within seven days
• if the accused fails to enter a plea, the judge will decide whether to enter a plea of not guilty on the accused’s behalf
If the accused does not have the money to pay for a lawyer, the Head of the Defence Office will assign counsel to him, for which the tribunal will pay. Equally, if the accused has not chosen a lawyer yet, the Head of the Defence Office may assign him a duty counsel to represent him at the initial appearance.
Proceedings in absentia
The STL has the power to hold trials in absentia (trials that take place without the accused being present). However, the presence of an accused person in the STL courtroom is the best option for all, especially for the accused who will be given the opportunity to present his defence.
If the accused has not been arrested within 30 calendar days of the public advertisements the Pre-Trial Judge can ask the Trial Chamber to initiate in absentia proceedings. The Trial Chamber will then determine whether the accused is trying to avoid trial or if the accused is unable to attend. (See Rule 106 of STL Rules of Procedure and Evidence)
To ensure that a trial in absentia is fair and just many safeguards are included in the STL’s rules. The accused would be represented by a counsel appointed by the Head of the Defence Office. If the accused decides to present himself to the tribunal during trial proceedings or at any time after sentencing, he may request a new trial.
Disclosure and preparation for trial
Once these steps have taken place, whether or not the accused has surrendered to the tribunal, has been arrested or has not been found, the Prosecutor has to disclose to the defence copies of the supporting material accompanying the indictment. He will also provide the defence with the statements of all witnesses whom the Prosecutor intends to call to testify at the trial.
At this stage, the Prosecutor can apply to the Trial Chamber to prevent the disclosure of certain information if:
• it may prejudice ongoing or future investigations
• it may cause a risk to the security of witnesses or their families
• it may be contrary to the public interest or the rights of third parties
Before the Pre-Trial Judge hands the case file to the Trial Chamber any preliminary motions will be considered. These motions can challenge the jurisdiction of the tribunal, claim defects in the form of the indictment, seek the severance of some counts of the indictment, seek separate trials, or raise objections based on the refusal of a request for the assignment of counsel.
These motions must be presented in writing not later than 30 days after the disclosure of the supporting material to the defence.
Then, the Pre-Trial Judge will implement a working plan and set a tentative date for the start of the proceedings at least four months in advance of trial.
One of the most striking legal features at the STL is the possibility for victims to participate in the proceedings. Participating victims before the STL are not private claimants and they do not have the right to seek compensation from the tribunal. However, the victims could eventually file for damages before a national court on the basis of a judgment by the Tribunal.
Due to the potential impact of victims’ participation on proceedings, victims who wish to take part in proceedings must be screened beforehand by the Pre-Trial Judge. He may:
• exclude persons whose status as a victim is doubtful
• limit the number of victims who may participate in proceedings
• designate one legal representative to act on behalf of multiple victims.
These features are designed to ensure an effective right for victims to take part in the proceedings, whilst at the same time protecting the rights of the accused.