Apr 23, 2015

Interview with STL assigned contempt lawyer Abou Kasm

On 9 April, our intern Ms. Sivan Serbest interviewed Dr. Antonios Farouk Abou Kasm about his position as assigned defence counsel for Akhbar Beirut S.A.L. and Mr. Al Amin. The interview is published below.

[Screenshot of Dr. Abou Kasm in court, 12 September 2014.]

Can you briefly describe how you were assigned to this case?

At the initial appearance of the Accused Mr. Ibrahim Mohamed Ali Al Amin and Akhbar Beirut S.A.L. on 29 May 2014, he Mr. Al Amin, representing himself and Akhbar Beirut S.A.L., attended the first part of the hearing via video-link from Beirut, but then left before the hearing had concluded because of a misunderstanding with the Contempt Judge Nicola Lettieri, who interrupted him during the reading of his statement which considered beyond the Tribunal's jurisdiction. Before asked for permission to leave, Mr. Al Amin informed the Judge that due to his interruption, he would henceforth remain silent and would refuse to appoint any lawyer to represent him or Akhbar Beirut S.A.L. and indicated that he would remain silent adding that he did not recognize the Special Tribunal and that he was not willing to accept "oppressive and repressive measures".

Then and orally, the Contempt Judge ordered the Head of Defence Office to assign counsel to represent the two Accused in the proceedings under Rule 59 (F) of the Tribunal’s Rules of Procedure and Evidence. This order was followed by written reasons provided on 5 June 2014, where the Judge Lettieri stated that despite his order, which was made to safeguard the rights of the Accused, the Accused remained free to participate in the proceedings and to appoint counsel of their own choosing at any time.

Subsequently, on 18 June 2014, the Contempt Judge ordered the Accused to make submissions on (1) their intention to participate in the proceedings and, if so, (2) to state whether they would appoint counsel or represent themselves. One week later, on the 25th, the Accused filed a submission in which they raised a number of allegations with respect to the neutrality and impartiality of Judge Lettieri in hearing the case. 

When Mr AI Amin did not respond to the several requests for clarifications on whether he intends to 
participate in the proceedings, on 30 June 2014, and following a written order by the Contempt Judge, the Head of Defence Office, and being admitted on the list of the STL’s counsel since 2011, Me Francois Roux took the decision to assign me as a Lead Counsel to defend the interests of the accused under the legal aid programme of the Defence Office, he believes that I am the adequate person who can lead the defence of the Accused in that critical case. I accepted this assignment as a challenge after the consultation of the President of the Beirut Bar, who told me that it is an obligation to defend an accused who cannot or refuse to defend himself.

What would you say are the main problems in this case for you?

There are several major problems.

First, and as you may know, it is the first time that a legal person is sued before an international or internationalized criminal tribunal and because there is no legal provision within the Statute or the Rules of procedure and Evidence of the Tribunal or even within the jurisprudence of other international criminal courts, this involve to innovate with regard to the elements of the offense apply to a legal person.

Then, the Accusation did not make available to the Accused the exhibits accompanied the indictment and all the witness statements and all supporting material. It is not fair at all to charge an accused and to ask him to participate in to his trial without being informed of his charges because he is represented by an assigned counsel! 

For example, in Lebanese law (Code of the criminal procedures), if the Proceedings that are conducted without ensuring that the indictment and the list of witnesses for the prosecution have been served on the accused, as well as the resulting judgement, are liable to annulment. Indeed, it’s a violation of the principle of equal arms mentioned in the Article 6§3 of the European Convention on Human Rights, mainly that the accused are not judged in absentia. The Statute of the Tribunal accord to him minimum guarantees as the rights to examine all incriminating evidence produced during the proceedings, mainly to examine the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Because the Accused have not received this material, their rights are being violated, leading to prejudice and the lack of contact between me and the Accused should not deprive them of their rights to see the case file.

To date, the Accused have not had cognizance of the evidence disclosed by the Amicus and do not have in their possession other items from the case file. Under the current circumstances, the prejudice caused to the Accused is compounded in view of the seriousness of the charges laid against them and the sentences that might be imposed. Furthermore, in the absence of disclosure of all the evidence in the case file, the Accused are deprived of their right to consider an informed defence strategy which might encourage them to reconsider their position vis-à-vis their mode of participation in the proceedings.

As well, it is impossible for the Assigned Counsel to do an inquiry and to search for witnesses to defend the accused without his approbation, we are defending a free and innocent man, the accused shall be presumed innocent until proved guilty by the Judge and not by the Accusation. And till now, the Accused have, from the outset, respected the confidentiality of the investigation conducted by the Amicus and didn’t violate the confidentiality and protective measures imposed by the Judge's decisions. So, pretending that the Accused will divulgate the Prosecution’s exhibits is an inadequate presumption, as if we are judging the pre-intention of the Accused not based on any concrete fact.

You have a client who refuses all contact with you, but a judge who tells you it’s your responsibility to effect disclosure to him. How do you go about with this?

The judge has considered that Counsel's responsibility reaches its limits where an accused refuses to cooperate with him. But if the Accused decline to receive the material disclosed by the Amicus from Counsel, or even be in contact with Counsel, it is not up to the Court to dictate to them whether and how to exercise their right. This is the Accused's choice alone.
Such decision can be interpreted that the Tribunal prefers not to disclose the exhibits to the Accused, because they are aware that he will refuse to be in contact with the Assigned Counsel in order to examine his exhibits. In the light of this decision, I asked the cooperation of the Defence Office in order to give the chance to the Accused to examine the disclosed material.

Do you think the rights of the accused are safeguarded in this manner?

Not at 100%! In criminal justice, the role and the presence of the accused during the trials is essential and prominent, mainly that the Mens rea constitutes a basic element of the Defence strategy. But in case that an accused refuses to participate in his proceedings, to have an Assigned Counsel to defend his rights constitutes at least a guarantee that his rights and interests are protected during the proceedings. Despite the effectiveness of a Defence team, the presence of the accused still essential, an Assigned Counsel cannot pretend the Accused intentions.

How do you think the judge would have better solved this situation?

I think that the Judge should grant to the Accused or the Defence the certification of the Appeal of his decision on assignment of counsel in order to give them the opportunity to submit an appeal before an Appeal panel who can decide on this particular case of assignment before the STL. Mainly, that before my assignment, the Accused filed on 12 June 2014 a request in which they sought certification to appeal the Judge decision "Reasons for Decision on Assignment of Counsel" dated 5 June 2014, as well as suspension of that decision on a Decision. On 17 July 2014, the Judge rendered the decision entitled "Decision on the Request for Certification to Appeal Decision on Assignment of Counsel" by way of which he dismissed the Request of the Accused seeking leave to lodge an appeal of the contested decision. On August 1st and after my assignment, we submit a request for reconsideration of the Judge decision above. By its decision dated September 1st 2014, the Judge dismisses also our motion.

What further steps are you intending to take in this regard?

I am managing a delicate situation: I am defending momentarily the interests of the Accused, as if I am trying to rescue shipwrecked people of a sinking ship. The ultimate solution is the participation of the Accused to defend themselves or to appoint counsel from their choice. It is the ideal period to take such decision before the beginning of trials, mainly that the Defence Case file is ready and up to date. And if they still refuse to participate, I will think what decision I shall take to guarantee the safety of the Accused and to avoid any bad situation can be occur. For me, I respect the will of the Accused if they don’t want to participate, but also they are responsible finally of their decision’s effects.

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