PUBLIC RI 17782 STL-II-OIIPTIPTJ FOl3S/201202291R1 1 7782-Rl 1 7791lEN/nc BEFORE THE PRE-TRIAL JUDGE Special Tribunal for Lebanon Case Number: Before: Registrar: Date: Filing Party: Original language: Type of Document: STL-ll-Ol/PT/PTJ Pre-Trial Judge Mr. Herman von Hebel 29 February 2012 Defence Counsel English PUBLIC THE PROSECUTOR v. SALIM JAMIL AYY ASH, MUSTAF A AMINE BADREDDINE, HUSSEIN HASSAN ONEISSI & ASSAD HASSAN SABRA SABRA DEFENCE SUPPLEMENTARY FILING REGARDING VPU'S TRANSMISSION (AMENDMENT OF RULE 86(C) FILED BY: Mr. David Young Dr. Guenael Mettraux for Mr. Sabra DISTRIBUTION TO: Victims' Participation Unit: Mr. Alain Grellet, Chief ofVPU Defence Counsel: Mr. Eugene O'Sullivan, Mr. Emile Aoun for Mr. Ayyash Mr. Antoine Korkmaz, Mr. John Jones for Mr. Badreddine Mr. Vincent Courcelle-Labrousse, Mr. Yasser Hassan for Mr. Oneissi Office of the Prosecutor Mr. Daniel Bellemare, Chief Pros Defence Office Mr. Roux, Head of DO
Victims' Participation Unit: Mr. Alain Grellet, Chief ofVPU
Defence Counsel: Mr. Eugene O'Sullivan, Mr. Emile Aoun for Mr. Ayyash Mr. Antoine Korkmaz, Mr. John Jones for Mr. Badreddine Mr. Vincent Courcelle-Labrousse, Mr. Yasser Hassan for Mr. Oneissi
Office of the Prosecutor Mr. Daniel Bellemare, Chief Pros
Defence Office Mr. Roux, Head of DO
PUBLIC
I. BRIEF PROCEDURAL BACKGROUND
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1. On 10 February 2012, the Victims' Participation Unit (hereinafter, "VPU")
filed a "Transmission of Applications for the Status of Victim Participating in
the Proceedings" (hereinafter, "Transmission") with confidential and ex parte
annexes.
2. On 17 February 2012, the Defence of Mr. Sabra Uoined by all three other
Defence teams) filed a Motion for an Order to VPU to Re-File its Annexes
Inter Partes or to Seek Protective Measures from the Pre-Trial ,Judge
(hereinafter "the Motion").
3. In a memorandum dated 24 February, the Defence of Mr. Sabra was invited by
the Pre-Trial Judge to make supplementary submissions no later than 1 March
2012 regarding the pending entry into force of amendments to the Rules (in
particular, Rules 86 and 133).
4. The Defence will limit its submissions to the amendment of Rule 86(C).1
5. The Defence counsel for Mr. Ayyash, Mr. Oneissi and Mr. Badreddine join
and support the present submissions.
11. AUTHORITY TO AMEND THE RULES OF PROCEDURE AND EVIDENCE AND LIMITS THERETO
6. The Statute provides for the authority of the Judges to adopt and amend the
Tribunal's Rules of Procedure and Evidence.2 That authority, however, is not
unlimited.
I The Defence takes no issue with amendments to Rule 133. The Defence reserves Its right to challenge the legality and lawfulness of the Tribunal. 2 ArtIcle 28{l) of the Statute.
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7. First, the Rules are subject to the Statute. No rules may be adopted which are
ultra vires of or contrary to the Statute. The rules may not, therefore, restrict
any right guaranteed under the Statute or create a crime for which no statutory
basis exists. Nor can the rules be interpreted in a way which is inconsistent (or,
again, ultra vires) with the Statute.3
8. Secondly, the Rules must be drafted and be interpreted in a manner that is
consistent with and takes into account the fundamental rights of the accused.
In that sense, international Judges have no more authority to adopt a Rule that
would encroach upon the rights of the accused than they would be permitted to
render a Judgment or decision that would have that effect. The legislative
authority of international Judges cannot, therefore, be exercised to the
prejudice of the rights and interests of the accused.
9. The Defence submits that Judges of the Special Tribunal should exercise their
regulatory authority with particular caution. That is because, first, they
exercise their legislative authority under the Rules without involvement of
representative of the defendants. An important and valuable safeguard built in
the Rules provides that the Head of the Defence Office should be involved
(albeit in a non-voting capacity) in that process.4 However, and contrary to the
ICTY,5 those who represent defendants - i.e., those who will be required to
practice under the Rules - have no part in that process (whilst the Prosecution
- i.e., the opposing party in the proceedings - does6). In that sense, the Rules,
of the Tribunal are amended without the legitimate concerns of defence
practitioners, as might exist in some cases, having been given a hearing. The
Defence, therefore, submits that where a proposed amendment is capable of
affecting the position of the Defence in the proceedings, representatives of the
3 See, generally, Prosecutor v Haradmaj, Decision on Ramush Haradinaj's Modified Provisional Release, 10 March 2006, footnote 141; Prosecutor v Milosevlc, DeCIsion on Assigned Counsel's Motion for Withdrawal, 7 December 2004, par 13. 4 Rules 5(B)-(C). 5 See Practice Direction on Procedure for the Proposal, Consideration of and Publication of Amendments to the Rules of Procedure and Evidence of the International Tribunal (as amended), 24 January 2002. 6 See Rules 5(B)-(D).
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accused should be pennitted to offer their observations to the plenary of
Judges before that amendment is put to a vote. 7
10. A second reason requiring regulatory caution pertains to the fact that the
Tribunal's regulatory framework is, in significant respects, untested.
Procedural and evidential practices should be left to grow organically based on
the needs of those involved in the proceedings as will become apparent once
proceedings start in earnest. Pre-emptive amendments of the Rules (in
particular those resulting in a curtailment of the ability of the Defence to
participate) are bound to be regarded with suspicion.
11. Lastly, the fairness of proceedings before the Special Tribunal will depend, in
no small part, on the ability of the Defence to make a genuine and effective
'contribution to these proceedings.8 Any amendment that preemptively
interferes with that participation can only impact negatively on the
achievement of that goal.
Ill. AMENDMENTS OF RULES 86(C) OF THE RULES
Nature of the amendment and its legal basis
12. Prior to its amendment, Rule 86(C) provided that "[u]nless authorized by the
Pre-Trial Judge or a Chamber, as appropriate, a victim participating in the
proceedings shall do so through a legal representative. The Pre-Trial Judge,
after hearing the Prosecutor and the Defence, shall rule on the matter. [ ... ]".
There was, therefore, no limitation to the scope or nature of issues in relation
to which the Defence could be heard in relation to victims' applications.
13. As amended, Rules 86(C) restricts the scope of pennissible submissions by the
Defence (and Prosecution) to "legal issues" arising from victims' applications
and, thus, (negatively) affects the scope of its right to be heard. The amended
7 See, below, par 28. 8 Instances ofpreemptive exclusions of the Defence from the proceedings - as was recorded In the Motion (at pars 4-5) - should not be permitted to become a feature of this TrIbunal.
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rule deprives counsel of an opportunity to comment on "factual" issues
connected to those applications.9
14. The Statute provides no express basis for such curtailment. Furthermore, the
restriction built into amended Rule 86(C) arguably falls short of the dual
requirements of proportionality and necessity that must apply to any
curtailment of right. 10
15. The Defence submits, based on the above, that amended Rule 86(C) is ultra
vires of the Statute.
16. Furthermore, even if the Rule was said to be consistent with the Statute, it
could not apply in these proceedings for reasons given below.
Entry into force of amended Rule 86(C)
17. Pursuant to Rule 5(H) of the Rules of Procedure and Evidence of the Tribunal
"An amendment shall enter into force seven days after the date of issue of an official Tribunal document containing the amendment, but shall not operate to prejudice the rights of a suspect, an accused or of a convicted or acquitted person in any pending case."
Prior to their entry into force, amended rules therefore have no effect and are
not relevant to the proceedings. 11
18. At the time of VPU's Transmission, Rule 86 (as now amended) had not yet
come into force. 12 It is, therefore, inapplicable and without effect in these
9 Rule 86(C), as amended, reads as follows in its relevant parts: "The Pre-Trial Judge shall decide a request for the status of victim participating in the proceedings, after seeking submissIOns from the Parties and the Victims' Participation Unit on relevant legal issues." 10 See, e.g., Prosecutor v Mllosevic, Decision on Interlocutory Appeal of Trial Chamber's Decision on the ASSignment of Defense Counsel, 1 November 2004, pars 17-18 and references cited therein. Article 17 of the Statute also embeds the general principle that the involvement of victims In the proceedings must be organized In a manner that is not prejudIcIal to or inconsistent with the rIghts of the accused and afalr and impartIal tnal. 11 One should reserve the case where an amended rule is more favourable to the accused than its pre-amendment version.
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proceedings. 13 The Rule that was in force at the time when the Applications
were due to be filed - i.e. 31 October 2011 is applicable even if certain
applications were filed with the VPU after this deadline. 14 Depriving the
accused ex post facto of the possibility to be heard on (factual) issues would
retroactively deprive him of an acquired right (as existed at the time the
applications were filed with the VPU) and would violate the letter and spirit of
Article 5(H).
19. Accordingly, counsel for the accused in this case have the unrestricted rights
to be heard in re.lation to any factual or legal issues arising from the
applications. This, in turn, means that the Defence must have access to the
applications and other documents submitted so as to enable it to identify any
such issue and, where necessary and appropriate, to make submissions in
relation to those. 15
20. Furthermore, even if the amended Rules had entered into force before the 17
February Defence Motion, they could not have applied to these proceedings as
they would operate to the prejudice of the accused (see next).
12 The amendments will enter into force on 29 February 2012. See Pre-Tnal Judge Memorandum of24 February 2012. 13 The Defence notes, furthermore, that the victIms applYIng to participate were reqUIred, to file their applications with the VPU no later than 31 October 2011, i.e., long before the amendment of Rule 86(C). See Prosecutor v Ayyash et ai, Scheduling Order Regarding the Deadline for Filing Applications to Participate in the Proceedings as a Victim, 8 September 2011. The deadline was set by the Pre-Trial Judge "In order to ensure that the proceedings are not unduly delayed." The VPU may not, for that reason also, benefit from the retroactive application of Rule 86(C) when the delay in submitting the applications is the result of its own doing. Nor could the accused be deprived of a right (to be heard in relation to "factual" issues) as a result ofVPU's re-submItting most of the same material to the Pre-Trial Judge 14 See Transmission, par 4, whIch explaInS that 11 applications were filed after the deadline set by the Pre-Trial Judge. See also Transmission, par 24, where the VPU explaInS that, when assessmg whether the file was complete, it simply "considered whether sufficient eVIdence has been provided to enable a prlmafacie determination by the Pre-Tnal Judge in relation to each element of the Rule 2 definition." Even If the application does not fulfill this standard and as such is not complete according to the VPU, it was still transmitted to the Pre-Trial Judge. 15 See Motion, pars 7 et seq. This would still be the case even If the Pre-Trial judge grants the Motion filed on 17 February and requires the VPU to re-file the victim applIcatIOns inter partes, or seek protective measures for these applicatIOns before they are submItted to the Pre-Trial Judge. The law applicable at the tIme when VPU had been ordered to file the applications determines the conditions under which these must be filed (i.e., Rule 86(C) pre-amendment}. Applying amended Rule 86(C) retroactively to filings that were to be made months earlier would effectively circumvent and violate the letter and spirit of Rule 5(H). It would also result in a retroactive curtailment of the rights of the accused. See below.
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PUBLIC
A mendment of Rule 86 and prejudice to the accused
21. As presently drafted, the Rules do not provide for submissions on the
proposed Rule amendments to be made by Defence Counsel in advance of
their adoption. Conseqllently, representatives of the accused were not heard in
relation to the (now adopted) amendments of Rule 86. Had this been the case,
the Sabra Defence would have highlighted a number of factors militating
against the amendment of the Rule.
22. First, the amendment is unnecessary ("necessity" being a requirement of any
measure resulting in a curtailment ofright I6). Considering that (a) counsel for
the Defence were made to swear an oath to the Tribunal,17 that (b) they are
bound to perform their duties in accordance with the Code of Conduct, 18 that
(c) no prejudice to the applicants could possibly result from Defence
submissions regarding "factual" issues raised by the applications (if- any),19
that (d) victims' involvement might affect the course of proceedings and the
position of the accused,20 and that ( e) counsel for the Defence would be bound
by any and all confidentiality orders, in full equality to other Parties,
pertaining to non-disclosure of information, counsel for the accused should be
permitted to express their views regarding any legal or factual issue arising
from victims' applications, which might affect its rights and position in the
proceedings. There appears to be no valid legal justification to curtail a priori
their ability to do so.
16 See e.g. Prosecutor v M,[osev,c, DeCIsion on Interlocutory Appeal of Trial Chamber's DeciSIOn on the Assignment of Defense Counsel, 1 November 2004, par 17; Prosecutor v K atanga, Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence's Preparation for the Confirmation Hearing, 20 June 2008, par 4; Prosecutor v Lubanga, 13 June 2008 Trial Chamber Decision, ICC-OIl04-01/06-1401, par 80 ("only such measures restricting the rights of the accused, whIch are strictly necessary, ought to be adopted"). 17 Solemn Undertaking, Code of Professional Conduct for Counsel Appearing Before the Tribunal, STL-CC-2011-01, 28 February 2011. 18 Rule 58(B). . 19 The ability of counsel for the accused to make submissions in relatIon to "factual" issues raised by victims' applications could not reasonably be said In the abstract to present a risk for the security or well-being of victims-applicants. 20 Regarding the scope of procedural entitlements given to victims once they have been given that status, see, generally, STL, Explanatory Memorandum by the Tribunal's President of Procedure and Evidence) pars 15 et seq.
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23. Secondly, the amendment would result in a prejudice to the accused, namely,
an encroachment of his right to be heard on (factual) issues relevant to the
proceedings. Whereas the Defence might not take issue with any factual
proposition put forward on behalf of victims-applicants, it should be permitted
to determine whether any of them warrants a response. Considering that
victims' participation could have a significant impact the position
of the accused in these proceedings/I the Defence should be permitted to take
a position in relation to any factual proposition that might in turn affect its
position in the proceedings. A rule that bars this possibility as a matter of
course is of questionable validity and, the Defence submits, unnecessary. 22
24. Thirdly, the separation between factual and legal issues introduced by
amended Rule 86(C) is artificial and likely to impede the Defence ability to
make effective, focused and relevant submissions regarding victims'
applications. The Defence has no less interest (and, in fact, likely greater
interest) in being able to make submissions on factual rather than legal issues
pertaining to victims' applications. The artificial distinction, which has no
apparent basis in any relevant legal system, deprives the Defence of the
opportunity to be heard on what is likely to be the most relevant aspects of
victims' applications. The experience of the ICC suggests that victim's status
is often denied, not on legal, but on factual grounds. 23 It is, therefore, essential
21 See, in particular, Rule 87(A)-(C). 22 Regarding the meaning and scope of the right of the accused to be heard, see, generally, Prosecutor v Karemera, Decision in the Matter of Proceedings under Rule 15bis(D), 21 June 2004, pars 8-10. 23 See Prosecutor v Ruto et al. Decision on Victims' Participation at the Confirmation of Charges Hearing and in the Related Proceedings. 5 August 2011, par 59 In this decision, for instance, the Pre-Trial Chamber rejected the applications of 130 putatIve victims based on these factual criteria. Factual issues that have been found as a basis to reject the applicatIons by putative victims include the following: (i) the applicatIOns fail to provIde the required information such as: the identity of the applicant; the date of the crime(s); the locatIOn of the cnme(s); a descnption of the harm suffered as a result of the commission of [one of the crimes WIth which the suspects are charged]; proof of identity; if the application is made by a person acting With the consent of the Victim, the express consent of that victim; if the applicatIOn is made by a person acting on behalf of a victim, in the case of a victim who is a child, proof of kinship or legal guardianship; or, In the case of a victIm who is disabled, proof of legal guardianship; a signature or thumb-print of the Applicant on the document, at the very least, on the last page of the application. (ii) the applicants claim to have suffered harm as a result of the death of a family member without adequately proving either the existence of the direct VIctim or the link between the two or both; (iii) the lack of intrinsic coherence within the applications themselves casts doubts on the credibility of the applicants; (iv) the events described in the applications fail to meet one or more of the shaping the present case. See, e.g., ibld, pars. 26-32,46-49,55,57 and 59.
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that the Defence be given an opportunity to make submissions on those issues
most directly relevant to the acquisition of victim's status by the applicants.
25. Fourthly, if the limitation introduced by. amended Rule 86(C) on the scope of
permissible submissions (to "legal" issues only) means that the Defence is
denied access to some or whole of the material relevant to these applications,
its ability to make meaningful submissions even on "legal" issues is itself
likely to be undermined. Submissions on "legal" issues without all relevant
information could hardly be said to be properly informed and the value and
effectiveness of these submissions would be questionable. Any attempt to
limit the Defence ability to make submissions on "legal" issues might in fact
result in rendering those unhelpful at best and irrelevant at worse. What
matters most to the fairness of the proceedings is not the nature of the issue -
legal or factual - but its relevance to the proceedings. If the issue is relevant,
parties should be heard.
26. For these reasons also, amended Rule 86(C) should not apply to these
proceedings.
IV.
27.
CONCLUSIONS AND RELIEF SOUGHT
The Defence submits that, in accordance with Article 16 and 24(1) of the
Statute as well as Rule 5(H) of Rules, the Pre-Trial Judge should decide
the Defence Motion based on Rule 86 as existed prior to its 29 February 2012
amendment. Accordingly, the Defence should be permitted to be heard in
relation to any issue - legal or factual - raised by victims' applications (if it so
chooses).24 This, turn, requires that the Defence should have access to un-
redacted applications or, where redactions have been authorized by the Pre-
Trial Judge, applications that are redacted in such a way as to protect the
effectiveness of the accused's right to be heard on all legal and factual issues
relevant to the case.
24 These submissions are without prejudice to the position whIch the Defence might take ID relation to mdlvldual victim's applications and it might be the case that it will not need to object to any or most of those - whether on matters of law or fact.
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28. Judges of the Special Tribunal may also wish to consider amending Rule 5(H)
to allow Defence representatives to submit observations to the Plenary prior to
any amendment of the Rules in addition to the Defence Office.
Respectfully submitted on 29 February 2012,
Mr. DA VID YOUNG Dr. GUENAEL METTRAUX
Lead Counsel for Assad Sabra Co-Counsel for Assad Sabra
Word Count: 1 ,998
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