Al-Akhbar concerned with security conditions, requirements for fair trial

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Prosecutor Norman Farrell of Canada takes notes on the first day of the delayed trial into the murder of former Lebanese Lebanese premier Rafiq Haririo at the Special Tribunal for Lebanon in The Hague on January 16, 2014. (Photo: AFP-Toussaint Kluiters)

By: Ibrahim al-Amin

Published Wednesday, May 28, 2014

Dear Judge Nicola Lettieri,

I am writing to you in my personal capacity and in my capacity as Chairman of Al-Akhbar Beirut S.A.L.

First of all allow me to thank you for understanding the special circumstances associated with forming a logical, realistic defense team and for your decision to postpone the May 13, 2014 hearing until Thursday, May 29, 2014, considering that the amount of time granted to me is insufficient to do what is required of me. You are aware that the laws of Lebanon, as in other countries, stipulate that I be granted a time period not less than two to three months. Here we are, though, before a recently - established court subject to special rules and which is besieged by much questioning and uncertainty.

I would like to inform you of my legitimate doubts as to whether the conditions of ensuring security and a fair trial are being met. My feelings in this regard can be broken down as follows:

1. The legitimate feeling that there is a possibility that the accusation and measures taken in connection with the trial could be seized upon to jeopardize my safety and that of my family members and the employees of the company.

Firstly, I would like to draw your attention to the fact that the international tribunal concerned with the assassination of Rafik Hariri constitutes the most divisive issue in Lebanon, and every formal statement it issues, especially indictments, produces formidable negative repercussions. This has grave effects on anyone named as an accused in such indictments.

Therefore, the claims made against me and Al-Akhbar S.A.L. are having dangerous effects on my personal safety and that of my family.

2. The legitimate feeling that the tribunal is arbitrary in violating the principle of nulla poena sine lege.

The principle of nulla poena sine lege, enshrined in the Lebanese Constitution and in international treaties, is fundamental in the avoidance of arbitrary rulings and ensuring minimal sentiments of confidence in justice. This allows the accused to identify in advance the laws applicable to him and the penalties which could be imposed.

Contrary to this principle - without a doubt the cornerstone of justice, and after having read the indictment, I have a significant amount of legitimate doubts as to which laws must be applied and what penalties could be imposed on me and the company.

These are questions to which no legal expert can provide answers. This results from a complete conflict between the principles of international law and its rules, the statutes of the Tribunal and many of the Rules of Procedure and Evidence. At the top of the list of contradictions figures the very basis of the prosecution, i.e. Article 60 bis, which is in complete violation of the Lebanese Criminal Code and Law on Publications, which must be applied pursuant to the very statutes of the Special Tribunal for Lebanon. Naturally, it is not enough to content that the accused can present his defense arguments before the tribunal by challenging its jurisdiction and the legitimacy of Rule 60 bis. The logic of justice requires, in order to guarantee a fair trial, that the principles and rules of the trial be specified and known prior to its commencement, as opposed to being hidden behind hazy formulations which could be revealed or disclosed during the trial. The accusation against me and my company exposes us to grave dangers, and it is supposed to be founded on clear texts specified in advance. We are not in an area of field testing.

These feelings that the trial is arbitrary are compounded by the fact that the indictment goes so far as to contrive new legal precedents which give rise to confusion and shake trust in international law as a whole. Directing an explicit accusation against an artificial person (Al-Akhbar Beirut S.A.L.), which I represent, is a precedent unique in its kind internationally and which violates international and domestic laws. This is particularly worrisome to the accused and heightens his fear of an arbitrary trial, given his being subjected to decisions which are in complete contradiction with all legal and judicial precedents and with his legitimate expectations. These sentiments and questions are greatly exacerbated by the fact that this indictment was not issued by a prosecutor-general (who acts as the contending party vis-a-vis the accused or the defense), but, rather, by the president of the tribunal himself, who, one would assume, should reflect the working spirit of the tribunal and be the most keen to safeguard the principle of neutrality of the tribunal.

3. Legitimate feelings that critical and dissenting media are being singled out:
In light of the above, and given the selectiveness of prosecuting certain media companies and not others, I can not hide from you my strong feelings that there are latent intentions to target me and AI-Akhbar. In this regard, you can verify through the tribunal's Beirut office the amount of political and judicial proceedings brought against Al-Akhbar and against me personally. Behind these proceedings are government officials and powerful forces, all of which happen to be part of the Lebanese political group which supported the establishment of the Special Tribunal for Lebanon in violation of the Lebanese Constitution and the laws in force in Lebanon. This is the group that utilised politically all of the mistakes committed by the tribunal and international investigation teams against its political and media adversaries in Lebanon.

This selectiveness heightens the feeling that the tribunal seeks to silence critical and dissenting media and prevent it from performing the necessary monitoring of the work of the tribunal. This feeling is compounded by the huge number of faults and attacks on the personal freedoms of the Lebanese citizens committed by the investigation and prosecution teams which succeeded one another in the Hariri assassination case investigations.

It is worth pointing out that I am not the only one to have these feelings. They are shared by a large number of those employed in the Lebanese media sector. This support is driven by a belief that my being summoned threatens their freedom of expression and their right to know and publish. I am sure the STL Outreach Office has informed you of the magnitude of the campaign of solidarity with us and of the extent of the angry reactions to the indictment, in addition to the letters you have received so far taking exception to the indictment as a whole.

Esteemed Judge Lettieri,

Accordingly, reaffirming the necessity for all of the conditions of fair trial and realistic, logical defense to be met, I am sending you the following inquiries:

First: the security measures taken by the Special Tribunal for Lebanon to protect its employees and anyone directly associated with its activities, whether in Lebanon or abroad, are the best proof of the necessity to take particular security measures for anyone whose name becomes involved in the work of the tribunal, whether judges, lawyers, employees, administrative staff, witnesses or accused. I am therefore asking you about the security measures taken for the safety of me and my family during and after the proceedings, bearing in mind that I am considered, at this very moment, and after the issuance of the indictment, a person hostile to Lebanese forces, which deals with any criticism of the STL's work as a form of involvement in the attack on Hariri and others. These forces have their own uncontrolled security, military and militia arms.

Furthermore, I am in disputes with regional and international parties which possess significant capabilities to carry out dangerous acts and can, simply put, resort to the use of criminal gangs to carry out whatever acts it desires, using as a cover the proceedings being conducted by the tribunal seized with investigating a major political assassination.

I am therefore also entitled to ask what measures are being taken to protect all of the citizens working with me at Al-Akhbar, all of whom have felt concerned for their safety and future since the issuance of the indictment.

Second: the Special Tribunal for Lebanon is constantly seeking to make known its observance of the highest international standards in the pursuit of justice. In light of my legitimate feelings of doubt, and to counter the arbitrariness of the proceedings as evidenced by equivocal texts rife with contradictions, I am asking that you clarify the following matters:

a. Given my reservations that the Rules of Procedure and Evidence could contain a new offence and a new penalty (Article 60 bis), i.e. the offense with which the Prosecution has charged me, I am asking you directly: what is the extent of applicability of the Lebanese Code of Criminal Procedure and Law on Publications (Legislative Decree No. 104/77 and amendments) to this case, in particular to determine the criminal elements invoked and the penalties which could be imposed in case such elements are established. Are there limits on their application? In the event of a conflict between these criminal elements and penalties and those provided for in the above-mentioned article, which of the articles prevails?

b. Given my strong reservations vis-a-vis the accusation of a media company, and that the indictment contains equivocal wording in respect of the penalties which could be imposed, I suppose it is my natural right to have read in advance the legal basis and the mechanisms employed to identify the penalties which could be imposed on the company.

c. The Lebanese Law on Publications contains a complete, absolute guarantee as to the inadmissibility of detention on remand in respect of an offence enumerated in this indictment. Is this being enforced by the tribunal? If not, I ask that you inform me of the guarantees made by the Special Tribunal for Lebanon to ensure that I benefit from the same right enshrined in Lebanese law with regard to the inadmissibility of detention on remand.

d .What standards were observed in the appointment of the amicus curiae as prosecutor-general in the contempt case, in violation of the STL's statutes, which requires consultation with the Lebanese government prior to the appointment of the Prosecutor-General? Here I must reiterate my complete reservation as to the legitimacy and constitutionality of the establishment of this tribunal and the jurisdiction in which it operates.

e. What rights do I enjoy to ensure I have the right to defend myself and Al-Akhbar, to appoint one or more lawyers, or to reach an agreement with a specialised law firm, in particular given that the financial situation of the newspaper does not permit it to assume the tremendous fees charged by lawyers in such cases?

Esteemed Judge Lettieri,

Based on the foregoing, and until I receive satisfactory answers to these legitimate questions, I am requesting that the hearing scheduled to take place on May 29, 2014 be postponed by a serious, sufficient period of time to carry out what is required of me. On the basis of the eventual answers you provide to my questions set out above, I will be able to take the appropriate decision in defending myself and the newspaper.

I must also draw your attention up front to the danger of dealing with my letter and questions with excessive passion, or interpreting them as an evasion of responsibility. I am certain that any negative interpretation of my questions could prompt you to take erroneous steps, further weakening the credibility of the tribunal. Moreover, resorting to a trial in absentia could cause all those concerned with human rights to have serious doubts about the justice of your tribunal. I will categorically reject the appointment of any person or party to act in my defense against my will. I would hold you responsible for such a move, were it to occur. Furthermore, I would hold anyone who accepted such an appointment against my will fully liable for the damages arising therefrom.

I do not believe that you need anyone to draw your attention to the fact that satisfying the prerequisite moral, humanitarian and professional conditions for establishing a just tribunal presupposes, ipso jure, that the conditions of defense of the accused are met. And yet, we find ourselves before a tribunal whose image and credibility have suffered greatly in light of the major doubts surrounding the circumstances of its creation, its working methods, its selectiveness in penalizing contempt and its transgression of international precedents in prosecuting media companies in Lebanon.

With full reservations

Ibrahim AI Amine

Beirut, May 26, 2014

This article is an edited version of the STL’s translation of the letter.

Comments have been playing with the fire and then you want to blame the fire for the fact that you burned yourself?

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