This blog of the Lebanese Center for Human Rights (CLDH) aims at granting the public opinion access to all information related to the Special Tribunal for Lebanon : daily press review in english, french and arabic ; UN documents, etc...

Ce blog du
Centre Libanais des droits humains (CLDH) a pour objectif de rendre accessible à l'opinion publique toute l'information relative au Tribunal Spécial pour le Liban : revue de presse quotidienne en anglais, francais et arabe ; documents onusiens ; rapports, etc...
.

PRESS REVIEW

Daily Star - Les droits de l'Homme dans le processus de creation du TSL

Daily Star - Importing human rights to the Hariri court's process, 28 march 2008

By Muhamad Mugraby

The proposal to set up a special quasi-international court to try the persons who may be eventually accused and indicted for the crime of murdering former Premier Rafik Hariri (commonly referred to as the "Hariri court") has already been dangerously infected with politics. Worse than that, it is increasingly being compromised with some of the most dangerous ailments of the Lebanese judicial system that it was meant to be freed from. What I mean is the practice of according conclusive evidentiary weight to primary police investigations to incriminate the accused.
The common reference in Lebanon to the successively appointed chiefs of the special UN investigation commission, such as Detlev Mehlis, as "judges" is wrong and serves to give their work, which is of the nature of a police investigation, far more weight than is recognized by law. In Lebanon, like in most countries, primary investigations, conducted by the police, are only one step in a series of processes leading in the end either to incrimination or acquittal. In serious crimes punishable by over three years of imprisonment such investigations are used by a prosecutor to refer the file to an investigating judge who will conduct further investigations and present his conclusions to a special chamber of the court of appeal that has the ultimate power to issue an indictment. The indicted persons are then tried before a criminal tribunal that has the power to acquit or incriminate them. Until a final judgment is adopted, the accused are unequivocally entitled to the presumption of innocence. This is the law, fully supported by the European Convention on Human Rights and articles 10 and 11 of the Universal Declaration of Human Rights, which is incorporated by reference into the Lebanese Constitution.
The purpose of a primary investigation is to collect raw evidence that may later be used for prosecution and indictment. Nevertheless, it is up to the tribunal, and to the tribunal alone, to consider the admissibility and effect of such evidence, if any, in open court under the statutory rules of evidence and with the full exercise by those accused of their right of defense. In Lebanon, primary investigations involve interviewing the suspects in closed interrogation rooms, without assistance by lawyers. The transcript is recorded by the investigators themselves in long hand and is signed by the suspects, often under duress and without knowledge of their legal rights. In many cases the investigators are heavily influenced by politics and/or by their own zeal and perception of justice. To some, such influences justify the use of duress and even torture.
Unfortunately, most Lebanese courts consider admissions under such circumstances, in spite of their subsequent retraction, as sufficient and conclusive evidence of guilt, without any corroboration. One such case against four young people came, on appeal, before the Sixth Chamber of the Court of Cassation. The high court unanimously rejected the defense, that admissions were obtained by the police during the stage of primary investigations under duress and were subsequently retracted before the investigating judge, and that such admissions were used to indict and incriminate the appellants in the absence of any other evidence, and upheld the convictions (Decision No. 320/2003, Case No. 274/2003).
The fact of the matter is that investigators are not judges and have no judicial power, and their closed interrogation rooms are not courtrooms open to the public. The safeguards embodied in internationally recognized human rights require that the process that could lead to the negation of the presumption of innocence be built on solid evidence presented in the court room where the accused have the assistance of lawyers and the fullest opportunities to exercise their right of defense. The locking of the process before the indictment and trial, on the basis of primary investigations, is a grave violation of human rights.
The raison d'etre of the Hariri court was lack of confidence in the capabilities of the Lebanese judicial system. It will be a great pity to import such a system, including the practice of convicting suspects on the basis of primary investigations conducted by the police, or, in the Hariri case, the investigators of the special UN commission. The recent interview of Mehlis and the conclusions that could be reached by the public based on his off-the-cuff comments, provide added reasons for grave concern that a zealous primary investigator has been openly trying to lock the process of the proposed Hariri court and destroy the human rights safeguards that are desperately needed to ensure that justice is not only done but also seen to be done.
Muhamad Mugraby is a lawyer and advocate of human rights and democracy.

No comments:

Background - خلفية

On 13 December 2005 the Government of the Lebanese Republic requested the UN to establish a tribunal of an international character to try all those who are alleged responsible for the attack of 14 february 2005 that killed the former Lebanese Prime Minister Rafiq Hariri and 22 others. The United Nations and the Lebanese Republic consequently negotiated an agreement on the establishment of the Special Tribunal for Lebanon.

Liens - Links - مواقع ذات صلة

The Washington Institute for Near East Policy, David Schenker , March 30, 2010 . Beirut Spring: The Hariri Tribunal Goes Hunting for Hizballah


Frederic Megret, McGill University, 2008. A special tribunal for Lebanon: the UN Security Council and the emancipation of International Criminal Justice


International Center for Transitional Justice Handbook on the Special Tribunal for Lebanon, April 10, 2008


United Nations
Conférence de presse de Nicolas Michel, 19 Sept 2007
Conférence de presse de Nicolas Michel, 27 Mars 2008


Département d'Etat américain
* 2009 Human Rights report
* 2008 Human Rights report
* 2007 Human Rights report
* 2006 Human Rights report
* 2005 Human Rights report



ICG - International Crisis Group
The Hariri Tribunal: Separate the Political and the Judicial, 19 July, 2007. [Fr]


HCSS - Hague Centre for strategic studies
Hariri, Homicide and the Hague


Human Rights Watch
* Hariri Tribunal can restore faith in law, 11 may 2006
* Letter to Secretary-General Kofi Annan, april 27, 2006


Amnesty International
* STL insufficient without wider action to combat impunity
* Liban : le Tribunal de tous les dangers, mai 2007
* Jeu de mecano


Courrier de l'ACAT - Wadih Al Asmar
Le Tribunal spécial pour le Liban : entre espoir et inquiétude


Georges Corm
La justice penale internationale pour le Liban : bienfait ou malediction?


Nadim Shedadi and Elizabeth Wilmshurt, Chatham House
The Special Tribunal for Lebanon : the UN on Trial?, July 2007


Issam Michael Saliba, Law Library of Congress
International Tribunals, National Crimes and the Hariri Assassination : a novel development in International Criminal Law, June 2007


Mona Yacoubian, Council on Foreign Relations
Linkages between Special UN Tribunal, Lebanon, and Syria, June 1, 2007