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2 October 2014

Appeals Panel decides on jurisdiction in Case STL-14-05

Leidschendam, 2 October 2014 -- The Appeals Panel of three judges appointed to consider an appeal relating to the STL's jurisdiction in Case STL-14-05 has decided by majority that the STL does have jurisdiction to hear cases of obstruction of justice against legal persons [corporate entities].

This means that the case against New TV S.A.L will proceed at the same time as the case against Ms Karma Al Khayat. This decision follows an appeal by the Amicus Curiae prosecutor against the Contempt Judge's decision of 24 July 2014 that ruled that the Tribunal does not have jurisdiction under Rule 60 bis to hear cases of obstruction of justice against legal persons.

A full written version of the decision in English, with headnotes in Arabic and English, may be found here. Full Arabic and French translations of the decision will be available on the Tribunal's website in due course.

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I. Headnote [1]

Headnote of the decision:

In this interlocutory appeal the Appeals Panel is tasked with determining whether or not the Contempt Judge erred in his ruling preventing legal persons from being prosecuted for contempt and whether such error, if any, led to the invalidation of his decision. The Appeals Panel examines: (1) whether the Contempt Judge erred in excluding legal persons when interpreting Rule 60 bis pursuant to Rule 3; and (2) whether the Contempt Judge erred in distinguishing between the Tribunal's material, temporal and territorial jurisdiction on the one hand, and its personal jurisdiction on the other. Upon consideration of the matter, the Appeals Panel, by majority, Judge Akoum dissenting, finds that the term "person" as set out within Rule 60 bis includes legal persons and therefore grants the appeal. As a result, the original order in lieu of indictment dated 31 January 2014 is reinstated.

The facts giving rise to this appeal originate from Judge Baragwanath, in his capacity as the initial Contempt Judge, issuing an order in lieu of an indictment containing charges against both New TV S.A.L., operating as Al Jadeed TV, and Ms Karma Al Khayat, Deputy Head of News and Political Programmes Manager at Al Jadeed TV. Judge Lettieri, as Contempt Judge, dismissed the charges against New TV S.A.L. having found that the Tribunal has no personal jurisdiction to hold contempt proceedings against legal persons and certified this issue for appeal. The Amicus Prosecutor filed an appeal challenging the decision of the Contempt Judge concerning the Tribunal's legal authority to proceed against legal persons for the crime of contempt. The Defence asserts that the decision of the Contempt Judge should be upheld as the Amicus Prosecutor has not established any errors in his decision.

The Appeals Panel considers that the appeal concerns the proper interpretation of the term "person" as contained in Rule 60 bis and the Tribunal's exercise of personal jurisdiction with respect to contempt proceedings. The Appeals Panel has been guided by the need for the Tribunal to protect the integrity of its proceedings.

Having found that there exists ambiguity with respect to the term "person" in Rule 60 bis, the Appeals Panel was guided by Rule 3 (A) which calls for an interpretation that is consonant "with the spirit of the Statute" together with the principles of interpretation laid down in customary international law, international standards on human rights, general principles of international criminal law and procedure and, as appropriate, the Lebanese Code of Criminal Procedure. The Appeals Panel finds that the Contempt Judge erred in resorting to Rule 3 (B) (that one should adopt the interpretation most favourable to the accused) as the ambiguity in Rule 60 bis should have been resolved by the application of Rule 3 (A). As a result, the Contempt Judge erred in determining that the term "person" in Rule 60 bis excludes legal entities.

In support of its conclusion, the Appeals Panel finds that the ordinary meaning of the word "person" in a legal context can include both natural human beings and legal entities.

With respect to the object and purpose of Rule 60 bis to hold accountable those who interfere with the administration of justice and to ensure that the exercise of the Tribunal's primary jurisdiction is not frustrated, the Appeals Panel finds that this object would be impeded should legal entities be excluded from prosecution as a rule.

Additionally, the Appeals Panel has examined evolving international standards on human rights and corporate accountability as well as trends in national laws. Current international standards on human rights support an interpretation that is consonant with imposing criminal liability on legal persons. Furthermore, since such an outcome has not created any new crime, the Appeals Panel does not consider this contrary to the rights of the accused pursuant to Rule 69.

With respect to the Lebanese Code of Criminal Procedure, the Appeals Panel considers it relevant that legal persons can be criminally liable under Lebanese criminal law. Accordingly, it considers that it is foreseeable under Lebanese law that legal entities could be subject to criminal proceedings.

Moreover, the Appeals Panel holds that the expression of the Tribunal's inherent contempt power under Rule 60 bis is not exhaustive and that the Contempt Judge erred in his reasoning in respect of the principle of effectiveness, resulting in the drawing of a distinction as regards the Tribunal's personal jurisdiction and its material, territorial and temporal jurisdictions in contempt proceedings.

In light of the Tribunal's inherent power to protect the integrity of its proceedings, the need to uphold the rule of law, execute and maintain the administration of justice; and domestic developments and evolving international law standards, the Appeals Panel considers that it is in the interests of justice to interpret the Tribunal's personal jurisdiction under Rule 60 bis as encompassing legal persons. Indeed, the existence of criminal responsibility for legal persons best enables the Tribunal to achieve its goals to administer justice in a fair and efficient manner by ensuring that no one is beyond the reach of the law.

The Appeals Panel concludes that the Contempt Judge committed the following errors: an interpretation of the word "person" in Rule 60 bis that was consonant with the letter of the Statute rather than its spirit; that the interpretation of the word "person" to include legal persons was only possible if the Tribunal's contempt jurisdiction was rendered "meaningless" without doing so; giving insufficient weight to the relevance of state practice on the criminalization of the conduct of legal persons in the interpretation of the word "person"; resorting to Rule 3 (B) when the principles of interpretation contained in Rule 3 (A) were sufficient. These errors of law are of such a nature that they invalidate the Contempt Judge's decision.

Accordingly, the Appeals Panel by majority, Judge Akoum dissenting, upholds the appeal and reinstates the order in lieu of an indictment of 31 January 2014 which includes New TV S.A.L. as an accused in this case.

Headnote of Judge Akoum's dissenting opinion: 

Judge Akoum considers that the decision of the majority of the Appeals Panel is contrary to fundamental principles of criminal law: crimes must be based on written provisions, the strict interpretation of criminal law and when in doubt, one must side with the accused. In his view, the majority's decision leads to an unreasonable result. Whereas a legal person can be held criminally responsible for contempt, it would be criminally immune for participation in the attack of 14 February 2005. Such a strange result should have been provided for explicitly and not arrived at through judicial interpretation.

With respect to the interpretation of the word "person n, Judge Akoum asserts that the evidence cited by the majority with respect to corporate criminal liability - either in domestic or international law - have all included express and clear provisions on the matter. None have relied on the mere existence of the word "person n. As such, without a clear written provision on the matter - which is not the case with Rule 60 bis - corporate criminal liability cannot be imposed.

In any event, Judge Akoum holds that where there is doubt as to the interpretation of legal provisions, one shouldfavour the interpretation thatfavours the accused. In the present case, that interpretation is the one that excludes legal persons from the personal jurisdiction of the Tribunal.

[1] This headnote does not constitute a part of the decision. It has been prepared for the convenience of the reader, who may find it useful to have an overview of the decision. Only the text of the decision itself is authoritative.

ADDITIONAL_INFORMATION