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Wednesday, 07 May 2014 00:00

Q & As on the contempt cases against New TV S.A.L./ Karma Khayat and Akhbar Beirut/ Ibrahim Al-Amin

What is meant by "contempt of court"?

All international criminal courts and tribunals have given their judges the power to impose criminal penalties for conduct that interferes with the administration of justice or threatens the integrity of the judicial proceedings. "Contempt of court" is defined in Rule 60bis of the Tribunal's Rules of Procedure and Evidence as the knowing and wilful interference with the Tribunal's administration of justice.

Contempt can take a number of forms. Under Rule 60bis, it may include:
 giving false evidence before the court;
 disclosing certain information in violation of a court order;
 failing to comply with court orders; or
 threatening, intimidating or offering to bribe witnesses and other individuals, such as the judges of the Tribunal.

The purpose of contempt proceedings is to protect the functioning of the Tribunal and the proper administration of justice.

Why are only Lebanese journalists and media organisations being charged with contempt even though confidential information that was published in the past by non-Lebanese media has not been addressed?

Efforts by individuals or the media to undermine the administration of justice are taken very seriously by the Tribunal, regardless of who the originator is.

The Contempt Judge has issued charges of contempt against New TV S.A.L. and Karma Khayat for having broadcast information relating to purported confidential witnesses in a series of programmes in August 2012. In addition, they are charged with violating a court order by failing to remove that information from Al Jadeed's website and YouTube channel despite an order of the STL Pre-Trial Judge to do so.

Similarly, the Contempt Judge issued charges of contempt against Akhbar Beirut S.A.L. and Ibrahim Al-Amin for having published information on purported confidential witnesses on 15 and 19 January 2013.

In both the Al Jadeed TV/Kharma Khayat and Al Akhbar/Ibrahim Al Amin cases, the indictments allege that through their actions the accused "knowingly and wilfully interfered with the administration of justice."

A third incident is still under investigation.

Whether the Tribunal initiates contempt proceedings depends on a number of factors. For instance, the proceedings currently before the Contempt Judge were triggered by requests from
the Tribunal's Head of Defence Office and its Prosecutor. No other such requests had been made before.

In addition, the Contempt Judge in each case weighs the advantages and disadvantages in bringing contempt charges. In his decision, the Contempt Judge specifically found "that the main proceedings before the Tribunal [in the Ayyash et al. case] concern a case of the gravest magnitude. The public interest in protecting such proceedings against undue outside influence is of the highest importance. Amicus charges that alleged criminal conduct in this matter had a detrimental effect on the Tribunal's administration of justice. It follows that this factor militates in favour of contempt proceedings" (para. 64). The Contempt Judge also held that "failure by the Tribunal to respond to the publication of alleged confidential witness names would encourage further similar conduct. Contempt proceedings would reduce the risk the public will lose confidence in the ability and will of the Tribunal to protect its witnesses" (para. 65). In doing so, he also considered special the circumstances of Lebanon.

What are the next steps now that two journalists and two media companies have been charged with contempt?

Any person charged with contempt is afforded the same rights given to any accused before the tribunal. This includes the assignment of counsel if the accused cannot afford to pay one (Rule 59 of the Rules of Procedure and Evidence).

After the initial appearances of the Accused, which are scheduled for 13 May 2014, a trial will take place at a future date before the Contempt Judge. The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal is a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both (Rule 60bis(J)). The decision of the Contempt Judge may be appealed to a bench of three judges designated by the President according to a pre-established roster.

Isn't this an attack on the freedom of the press in Lebanon?

No. The freedom of expression guarantees everyone's right to hold opinions and expressions, receive and impart information and ideas as long as they are in accordance with the applicable laws. The freedom of expression is not absolute and journalists and media organisations must comply with the law. The Contempt Judge stipulated that the "the criminal charge of contempt is not to be abused as a cudgel to silence an independent media acting within the law." The Tribunal welcomes any criticism that does not interfere with the administration of justice. As the decision mentions, "nothing is more fundamental to the rule of law than there must be no deliberate interference with the administration of justice" (para.16).

Publicising the names of protected witnesses – or even alleging such publication – may have serious consequences for the Tribunal's functioning. As the decision issued by the Contempt Judge points out: "the publication of purported confidential witness information must reduce the public's confidence in the Tribunal and thereby interfere with its administration of justice" (para. 37).

What does amicus curiae mean?

Amicus curiae (a Latin term, which means "friend of the court") is a third party that is not party to a case, but who is assigned to assist a court on a specific issue. An amicus curiae is appointed to ensure that a court decision is not shaped by only the parties involved in litigation. The amicus curiae is independent from the Office of the Prosecutor at the STL.

On 25 June 2013, after preliminary discussions on a working plan, the Acting Registrar appointed Mr Stéphane Bourgon amicus curiae to (i) investigate the allegations of contempt and (ii) provide two interim reports and a final report to the Contempt Judge on whether there were sufficient grounds for instigating contempt proceedings.

The STL Registrar, Mr Daryl Mundis, recently appointed Mr Kenneth Scott as the new amicus curiae to prosecute the contempt charges currently before the STL. The core staff of the amicus curiae team, who worked with Mr Bourgon, will continue to work for the new amicus.
Why is this case being prosecuted by an independent Prosecutor while the STL has its own Prosecutor?

The appointment of an amicus curiae is provided for in the rules of the STL (60bis). The Rules provide the Contempt Judge with a number of options, one of which is to consider the preferences of the Prosecutor (for instance with respect to the necessary recources) or whether there might be a conflict of interest between the Prosecutor's other duties and what the contempt case could require. In this case, the Contempt Judge instructed the Registrar to appoint an independent amicus curiae.

Why did Judge Baragwanath recuse himself as Contempt Judge?

Judge Baragwanath has recused himself as Contempt Judge due to his involvement in the investigation of this case. In the Decision he explained that "by this Order I am effectively indicting the accused and directing counsel to prosecute the case. In practical terms, this means I am the prosecutor of the contempt issues. I cannot now become judge of the same issues" (para. 69). Judge Nicola Lettieri – the judge rostered for the month of January 2014, during which Judge Baragwanath issued his order in lieu of an indictment – will now hear the case. This is in line with the practice of other Tribunals.

Did the investigations conducted by the amicus establish where the published information came from? The amicus did investigate, among other things, whether the published information about the identity of alleged confidential witnesses could have been disclosed by Tribunal personnel with access to confidential documents. The amicus concluded that while it was alleged that such information was leaked from inside the Tribunal, the evidence gathered during the investigation
leads to the conclusion that it is unlikely that any such information would have been made available by members of the Tribunal.

The investigation does not end with the issuance of an indictment or order in lieu of an indictment. If any evidence is presented to the amicus curiae or the Contempt Judge indicating who may have disclosed confidential information in violation of STL decisions, such evidence will be carefully examined and evaluated and the persons implicated prosecuted, if appropriate.

Why can't you make the identities of the witnesses in the Ayyash et al. case public?

The Tribunal will not comment on who is on the Prosecution's or the Defence's lists of witnesses. Making public the names of certain witnesses may create unnecessary risks for the persons in question. Neither does making public such information at an early stage advance the cause of justice in Lebanon.

Moreover, as the public was able to witness during the first month of trial in Ayyash et al., all testimonies – even those of protected witnesses – have been heard in public, and broadcast in three languages in Lebanon and all over the world. This ensures the transparency of the proceedings and ultimately of the Tribunal's findings.

In any event, in the current contempt case, the question is not whether the names published were those of actual witnesses. Rather, the charge is that publishing information on alleged confidential witnesses interferes with the administration of justice.

Are contempt cases common at other international courts?

All international criminal courts and tribunals have rules under which persons can be held responsible for contempt. Consequently, all such courts have held and continue to hold contempt cases. At the ICTY, for example, there were 20 such cases involving different kinds of prohibited behavior. Several individuals were convicted for disclosing confidential information about witnesses, including journalists, state officials as well as a person accused of war crimes before the Tribunal. Some were also convicted of intimidation of witnesses and others for refusal to testify.

More recently, the ICC initiated a case against individuals who are accused of corruptly influencing witnesses.

Can Lebanese institutions be involved in these proceedings in some way?

Yes, Rule 131 of the Tribunal's Rules of Procedure and Evidence states that the Trial Chamber may decide, after hearing the Parties, that it would assist the proper determination of the case to invite or grant leave to a State, organisation or person to make written submissions on any issue, or to allow a State, organisation or person to appear before it as amicus curiae."

In the proceedings on 13 May, Judge Lettieri said the following: "... I invite any interested party, such as media organizations, non-governmental organizations, or academic institutions to file an amicus curiae brief on the issue of the Tribunal's jurisdiction. Such briefs must be filed by the 16th of June 2014. They may not exceed 3,000 words...". This means that he would welcome focused legal submissions on issues related to the Tribunal's jurisdiction in this matter, including the applicable law and the Tribunal's jurisdiction on corporate entities. The invitation is not limited to Lebanese institutions, but to any State, organisation or person.All amicus briefs should be sent to the Court Management Support Section's e-mail address. Before any submissions, applicants are encouraged to read and comply with the Practice Direction on Amicus Curiae Submissions before the Special Tribunal for Lebanon. [LINK]

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Last modified on Tuesday, 20 May 2014 10:00