In its judgment of 8 March 2016, the Appeals Panel partly granted the appeal by the Defence, and reversed the conviction for contempt of court of Ms Al Khayat. This results in a full acquittal of both accused (Ms Al Khayat and company Al Jadeed) for contempt of court.
In this case, Al Jadeed TV broadcasting corporation and its deputy head of news, Ms Al Khayat, were charged with two counts of contempt of court. The television station produced a series of episodes on supposed witnesses of the Tribunal. The two accused were charged with publishing information on purported confidential witnesses in the main case, thereby undermining public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, (potential) witnesses. Al Jadeed and Ms Al Khayat were also charged with failure to comply with a court order to remove that particular information from Al Jadeed's website and its YouTube Channel. In his Judgment (subject to the current appeal), the Contempt Judge acquitted Al Jadeed on both counts; Ms. Al Khayat was found guilty on the second count and sentenced to pay a fine of 10,000 euro.
[the accused Ms Al Khayat and her defence lawyers in court - screenshot taken on 18 June 2015]
Although the Appeals Panel identified a number of mistakes made by the Contempt Judge in evaluating the evidence, in its view none of these factual errors had any impact on the conclusions that could be drawn from the evidence. For example, the Appeals Panel was critical about the evaluation of the evidence of two witnesses who had been portrayed as Tribunal witnesses in the episodes, and who also testified that they had suffered negative consequences because of this (Appeals Judgment, paras. 99-102). However, the Appeals Panel still upheld the finding by the Contempt Judge that the Amicus Curiae Prosecutor had not proven beyond reasonable doubt (part of) the actus reus of count 1, namely the existence of an objective likelihood of the episodes undermining the public's confidence in the Tribunal's ability to protect confidential information (Appeals Judgment, para. 104). Further, the Appeals Panel also found that the Contempt Judge was not unreasonable in requiring the Amicus Curiae Prosecutor "to prove, as a distinct element of the offence, the objective likelihood of the public's confidence being undermined", which serves as a link between the purported disclosures by the Accused and the interference with the administration of justice (Appeals Judgement, para. 95). The Appeals Panel therefore upheld the acquittal for both accused on count 1.
Count 2 deals with a disclosure in breach of a court order; therefore, the undermining of the public's confidence is no element of the crime. The Contempt Judge found Ms Al Khayat guilty for her failure to comply with a court order to remove the episodes from the internet. He used circumstantial evidence to establish that Ms Al Khayat had received the court order by e-mail, as there exists no direct proof of receipt and Ms Al Khayat denies receiving this e-mail. The Appeals Panel explained that "when the prosecution relies on circumstantial evidence to prove the facts constituting the elements of an offence (here the mens rea) by inference, that inference must be the only reasonable conclusion available from the evidence" (Appeals Judgment, para. 167). Consequently, the Appeals Panel reversed the finding by the Contempt Judge because he failed to consider the existence of these other reasonable inferences; for example, that the e-mail did not reach Ms Al Khayat's e-mail without triggering any notification for the sender, or that the e-mail ended up in the junk folder of Ms Al Khayat's e-mail account (Appeals Judgment, para. 168). The Appeals Panel thus concluded that the Amicus Curiae Prosecutor failed to prove that Ms Al Khayat had the requisite mens rea for Count 2 (Appeals Judgment, para. 172).
An interesting aspect of the Judgment is that the Appeals Panel (with Judge Akoum dissenting) confirmed that the applicable law in relation to the elements for the attribution of criminal liability to legal persons is Lebanese law and that these were foreseeable to the corporate accused Al Jadeed (Appeals Judgment, paras. 188-196). The majority of the Appeals Panel found that the other main sources mentioned in Rule 3(A) on the interpretation of the Rules - principles of interpretation laid down in customary international law, international standards on human rights and the general principles of international criminal law and procedure - "are ill-suited, in the present case, to address the precise question of how the acts and conduct of natural persons are to be attributed to legal persons" (Appeals Judgment, para. 191). After the Appeals Chamber previously held that the Tribunal held jurisdiction over legal persons for contempt of court, emphasizing developing international standards on corporate criminal liability, the apparent failure to identify the elements of the crime through sources of international law seems to direct towards a different conclusion (see also one of our previous blogs criticizing the manner in which the Appeal Chamber came to its jurisdiction finding). Judge Akoum in his separate opinion also explained that "the absence of clear and unambiguous provisions setting out the elements of corporate responsibility" should result in Al Jadeed's acquittal, as required by the principle of legality. Previously, Judge Akoum also dissented the majority view that the Tribunal possesses jurisdiction over legal persons for contempt.
In another interesting, and completely different, dissenting opinion, Judge Nosworthy finds that a conviction of Al Jadeed should have been entered on count 2, but on the basis of the acts and conduct of Ms Al Bassam, Ms Al Khayat's direct superior officer. According to Judge Nosworthy, Ms Al Bassam was notified of the order, had the ability and authority to remove the episodes from Al Jadeed TV's online platforms, and her conduct is attributable to Al Jadeed (although for this last conclusion Judge Nosworthy has to adopt a purposive/teleological approach to the interpretation and selection of Lebanese case law, which seems to be quite a stretch in view of the legality principle). Interestingly, and Judge Nosworthy also refers to this in her opinion, Ms Al Bassam has not been charged before the Tribunal. Therefore, if this line of reasoning had been followed, Al Jadeed would have been convicted for the acts of a person who had not been given an opportunity to defend herself before a court of law. Strictly speaking this would not have been a violation of the rights of the accused, with Al Jadeed and not Ms Al Bassam being charged. However, one wonders whether this approach is the most favorable in view of these same fair trial rights, with Ms Al Bassam's acts and conduct being the only basis for the conviction of Al Jadeed. Her defence in person would then certainly constitute an important, if not essential, contribution to a fair and balanced outcome of the proceedings.