Mar 21, 2016

Full acquittal by STL Appeals Panel in first contempt case against journalist and media company

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.

January & February at the STL: Prosecution investigator Macleod and a representative of Alfa

Alasdair Macleod (12-14 January 2016)
Mr Macleod is an investigator for the Prosecution, who has previously worked for UNIIIC, the ICTY and the British government. The witness is called to court at the request of the Defence to be examined about his investigative work, including interviewing witnesses and taking statements. More specifically, the witness is questioned about the statements he took in relation to Abu Adass (the person who made the false claim of responsibility), the delivery of the video with the claim of responsibility to Al-Jazeera, and the Al Qaeda 13 group. The witness was tasked with finding evidence on what happened with Abu Adass. The Defence for Mr Sabra asked the witness about these investigations, which again led to discussions about the relevance of the witness confirming the content of statements given by other persons (see also the cross-examination of Ms Kamei, discussed in our previous blog).

Further, most of the cross-examination of this witness remains unknown or impossible to follow, as a large part of his evidence is in closed session, and in open session the names of the persons about whom the witness was questioned, were not revealed to the public. The Defence for Mr Sabra asked the witness to comment on his investigation work in relation to certain persons and information that seem relevant for the Defence case, for example their alternative theories on Abu Adass’ role. The cross-examination of this witness is still to be continued.

[screenshot of hearing at the STL - 28 October 2015]

Closed session
On 20-22 and 26-29 January the Court heard the evidence of a witness in closed session.

PRH707 (29 January, 9-12, 15-18 February 2016)
The evidence of PRH707 was heard in open session, although the witness’ identity was kept away from the public. PRH707 is an electrical engineer and has worked in telecommunication for about 25 years. The witness has worked at the Lebanese mobile network company Alfa since April 2012. He has been delegated as a representative witness of Alfa by the Minister of Telecommunications of Lebanon. Alfa is a company that manages the mobile phone network owned by the Lebanese state. At Alfa the witness deals with corporate reporting and the technical systems. 

PRH707 gave evidence about three types of records generated by Alfa in the ordinary course of business: call data records, cell site-related data and the database holding customer information (the so-called "subscriber database"). The Prosecution relies on these records to link certain telephones to the accused. A discussion was held in court if part of the witness' written statement could be tendered into evidence - in addition to the evidence he will give in court - with the Defence objecting to this. The Chamber still has to decide on this matter, but the amount of discussion shows that this is an important witness to the parties, with the telecommunication evidence constituting the core of the Prosecution's case. The witness explained that in order to create his statement, he consulted people from other departments within his company. These requests included confirming certain business records and procedures.

The unit in charge of the subscriber database does not fall under the authority of the witness and therefore he cannot say anything about its accuracy. The witness explained that two years ago they set up a new system to ensure that the database of subscribers is more reliable than it used to be. Identification papers, a photograph and personal collection of the card are now required to obtain a SIM card. The information in the subscriber database is for example used by the Alfa call centre dealing with customer complaints. The witness explained the procedure at Alfa in relation to the sale, activation, payment and recharging of pre-paid and post-paid SIM cards.

PRH707 further explained that the call data records were created for the billing system. Alfa only used the fields useful for this billing system, although other fields could be interesting for marketing for example. The witness explained the functioning of the data warehouse system, which is used to store information used for statistical or marketing purposes. This is the one of the three sources of call data records, in addition to the raw records themselves (with the main source being the switching centres, which create a call data record for each event passing through) and the billing system.

The cell site-related data is used by the team that is dealing with the coverage of specific areas (the radio team). The witness gave evidence about how new stations or new sites can be built to extend or improve the coverage. Various values were manually measured after the installation of the station, including the value of the azimuth, or the direction of the antenna. Customer complaints or the construction of additional stations occasionally required the modification of these antennae. The recorded values for 2004 and 2005 cannot be double-checked by Alfa.

About the functioning of the Alfa network, PRH707 explained that in principle a mobile phone will connect with the best serving cell or signal, although a low percentage of handsets will connect to another signal, causing complaints about the quality of the sound. Normally the best serving cell would be the closest geographically, although for example buildings blocking the signal or the station's limited capacity will create exceptions. Alfa used a software program called Aircom Asset to create maps showing the strength of the signal and maps showing the best serving cell for a certain location, the so-called shape files. These shape files were created using different models predicting the coverage. PRH707 and his colleagues have prepared a diagram of the structure of the Alfa network in 2004-2005. The witness testified about the functioning of this network. 

The witness further gave evidence about how the company dealt with the requests for data and records by the Tribunal. PRH707  commented on many of the documents provided by Alfa to the Tribunal, confirming their authenticity and explaining their content and origin. This includes documents about telephones that were part of the blue, green, yellow and red networks used by the accused according to the Prosecution.

The examination-in-chief by the Prosecution of this witness took more than two weeks (although there was quite some repetitive evidence). The cross-examination of PRH707 has been postponed, but, in view of the importance of this evidence, will be expected to take very long as well.