Confirmation of an indictment and the initial appearance of the accused
The Pre-Trial phase begins when the Pre-Trial Judge confirms an indictment. The indictment may remain sealed after confirmation to ensure the participation of the accused at Trial. The Pre-Trial Judge also has the power to issue arrest warrants or summonses to appear.
The accused is expected to appear before the Trial Chamber (or a judge designated by the president) without delay, either in person or via video-link. At this initial appearance, the charges against the accused are read out to him in public, and in the presence of his Defence counsel. The accused must plead guilty or not guilty within seven days.
- If he pleads guilty and the Trial Chamber is convinced of the validity and sincerity of the plea, the case moves directly to the sentencing phase.
- If he pleads not guilty the Pre-Trial Judge will prepare the case for Trial.
- If the accused does not appear before the Tribunal proceedings may take place in absentia.
Presumption of innocence
The presumption of innocence is a cornerstone of criminal justice. It is a fundamental right of suspects and accused who are considered innocent until proven guilty. The Prosecution must prove each element of the alleged crime, as well as the criminal responsibility of the accused. The accused does not have to prove his innocence. He also has the right to remain silent and is not required to present evidence or testify.
Taking into account the accused's right to liberty and the presumption of his innocence, the accused will not be placed in detention unless the Office of the Prosecutor can demonstrate that this is necessary. Pre-Trial detention may be necessary in order to guarantee that the accused will appear at trial, will not hinder the investigation or to prevent him committing a similar crime to the one he is accused of.
In the Tribunal's structure there is no investigating Judge. Once an indictment is confirmed the right and duty to investigate falls on both parties to the proceedings: this is a continuation of the Prosecution's investigations and the start of the Defence's.
The Defence may challenge evidence presented by the Prosecution. To this end they undertake to find any evidence that may suggest the innocence of the accused, that may mitigate his guilt or may affect the credibility of the Prosecution evidence.
Investigations by the Defence may include interviewing witnesses, visiting crime scenes, and collecting evidence. They may also request information and assistance from the Lebanese authorities or other states.
With the permission of the Pre-Trial Judge, the Defence may also summon witnesses and execute searches and seizures. The Tribunal's Defence Office helps with legal and logistical matters.
The Office of the Prosecutor must make available to the Defence relevant evidence in their possession (such as witness statements and depositions), including everything that is in the accused's favour. If information is considered highly confidential the prosecutor may ask the judges not to disclose it but the judges must be satisfied that this does not make the proceedings unfair.
Role of the Pre-Trial judge
After the confirmation of an indictment the Pre-Trial Judge is responsible for preparing the case for trial. He coordinates communications between the Prosecution and the Defence as well as taking any measures that are necessary to prepare for a fair and swift trial. The Pre-Trial Judge will ensure that the Pre-Trial proceedings are as prompt as possible whilst ensuring that this is a fair process. He will organise evidence to assist the Trial Chamber and will also help the parties to collect evidence.
The Pre-Trial proceedings will be held in public with a few exceptions (such as the issuing of arrest warrants, search warrants and subpoenas).
Pre-Trial Judge's file
The Pre-Trial Judge is responsible for producing a file containing several items including:
- all the filings of the parties and of the victims participating in the proceedings;
- all orders and decisions that he has made, as well as a summary of these rulings;
- suggestions about the witnesses to be called by the Prosecutor and the witnesses that the victims participating in the proceedings want to testify;
- points of agreement and disagreement between the Prosecution and Defence.
The file is given to the Trial Chamber Judges to start the actual Trial.