Prosecutor Informs Pre-Trial Judge He Does Not Oppose Release of Four Detainees in the Hariri Case

On 27 April at 11:40am,Prosecutor Daniel A. Bellemare presented his reasoned submission to the Pre-Trial Judge, Daniel Fransen, in which he stated that he does not seek the continued detention in Lebanon of four Generals in connection with the attack on former Lebanese Prime Minister Rafiq Hariri on 14 February 2005.

The individuals concerned and whose names were sent on 10 April 2009 as detained persons to the Pre-Trial Judge by the Lebanese judicial authorities are:

“General Jamil Mohamad Amin El Sayed,

General Ali Salah El Dine El Hajj,

Brigadier General Raymond Fouad Azar and

Brigadier General Mostafa Fehmi Hamdan.”

The submission was presented in response to the order of the Pre-Trial Judge dated 15 April 2009 directing Prosecutor Bellemare, no later than 27 April 2009 at noon and in accordance with Rule 17 (B) of the Rules of Procedure and Evidence of the Special Tribunal for Lebanon, to “file reasoned submissions together with any supporting material stating, for each person on the list, whether he requests the continuation of his detention or he does not oppose release by the Pre-Trial Judge and, in the latter event, whether the release should be subject to conditions in accordance with Rule 102.”

The scope of the submission was limited to responding to the Rule 17 order of the Pre-Trial Judge concerning those four individuals physically detained in Lebanon in connection with the Hariri case. The submission therefore did not concern a fifth individual, Zuhair Mohamad Said Saddik, whose name had also been on the list transmitted by the Lebanese judicial authorities to the Pre-Trial Judge. The Prosecutor did not consider Saddik relevant to his submission under Rule 17 since he was not physically detained in Lebanon and an earlier Lebanese arrest warrant issued against him had been lifted.

The submission required a review of the statements made by the detained persons; a review of statements made by others that relate to the detained persons; a review of credibility assessments of these statements; a review of communications traffic data and analysis; a review of other documents collected; and a review of forensic assessments made in relation to collected physical evidence. It also included a review of filings and decisions on motions for release filed by the detained persons or their counsel before the Lebanese authorities.

It is important to recall that that the files received from the Lebanese authorities and the files gathered by the United Nations International Independent Commission (UNIIIC) and the Office of the Prosecutor that pertain to the Hariri case are not limited to the four detained individuals and that the scope of the investigations carried out is far wider than the involvement or lack thereof of the four detained individuals who are subject of the Prosecutor’s submission.

Three basic legal principles guided the review.

The first principle is the presumption of innocence which places the burden upon the Prosecution to prove guilt beyond reasonable doubt.

The second principle is that detention of persons presumed innocent must always be exceptional and not the rule.

The third principle is that there must be a sufficiency of credible and admissible evidence. If not, then the Prosecutor cannot seek continued detention, as the detainees must otherwise be indicted within 90 days of falling under the authority and Rules of Evidence and Procedure of the Special Tribunal for Lebanon, which took formal responsibility from Lebanon for the detainees on 8 April. “Credibility of the evidence is a crucial factor in the decision of any Prosecutor to indict a person. Lack of credibility directly impacts on the sufficiency of the evidence”, the Prosecutor stated in his submission.

On the basis of these principles guiding his review of the material available, the Prosecutor has concluded that the evidence is insufficient at this time to warrant filing indictments against any of the four detained persons. The Prosecutor cannot, therefore, seek their provisional detention by the Tribunal under Rules 63 or 102.

As a result, as stated by the Prosecutor, he “does not oppose their release nor does he seek that their release be made subject to any conditions in accordance with Rule 102.”

The Prosecutor emphasized that the assessment process undertaken was part of a much larger investigative effort currently ongoing. “The scope of the investigation is broad and remains focused on its objective: to assist the court in establishing the truth by uncovering credible and legally admissible evidence that can lead to the filing of indictments and, later, trials” the Prosecutor wrote in his submission.

On the basis of these considerations, the Prosecutor indicated that his submission to the Pre-Trial Judge was made “without prejudice to any further action that the Prosecutor may wish to take in the future in relation to any person.”

“The investigation continues”, he stated.

“I am mindful of the fact that the Hariri case may have seemed only about the four detained officers in some people’s minds and that the case of the four officers has been portrayed in media reports as such since the investigation started probably because they have been the most visible individuals in the investigation.” said Prosecutor Bellemare in comments made prior to the rendering of the Pre-trial Judge decision on his submission. He emphasized however, that “people should not forget what has been said time and again, including by me, that the investigation is ongoing, that there has always been more than one lead being pursued, and that if I thought the case could not be solved I would be the first to say so.” “Not only should people understand that the investigation is bigger than the case of the four officers, they should also understand that should any of the investigative leads direct us back to them with sufficient credible evidence I will seek their detention and indictment”, the Prosecutor stressed.

“I stated in my submission to the Pre-Trial Judge that as a Prosecutor, I am guided by the evidence, by the interests of justice, and by recognized international legal standards”, Prosecutor Bellemare said.

Prosecutor Bellemare concluded his comments by stating: “this is how I explained my role to the Security Council and to the Lebanese people in all the public statements I made, and this is what should be expected of me. Every decision I will take in the course of my duties as Prosecutor will always be based on these principles, no more, no less.”

For further information, please contact Ms. Radhia Achouri, Senior Communications Advisor/Spokesperson, Office of the Prosecutor.

Tel: +31 (0) 70 800 3438, Mobile: +31 (0) 65 088 9203, Email: achouri@un.org