Jul 20, 2016

First Instance Judgment in Second Contempt Case

On 15 July 2016, Contempt Judge Lettieri issued his judgment in the case against the Lebanese newspaper Al Akhbar Beirut S.A.L. and its editor-in-chief, Ibrahim Al Amin. Both Al Akhbar - as a legal person - and Al Amin are accused of acting in contempt of the Tribunal by “knowingly and wilfully interfering with the administration of justice by: publishing information on purported confidential witnesses in the Ayyash et al. case, thereby undermining public confidence in the Tribunal's ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.” For further information on this case, see our other blog posts on this case (here, here, and here).

Applicable Law

To prove the actus reus of the contempt charge, the Amicus Prosecutor was required to demonstrate that the accused had knowingly published the confidential information and that its publication created an objective likelihood of undermining public confidence in the Tribunal’s ability to protect witness confidentiality. Such undermining of public confidence constitutes interference with the Tribunal’s administration of justice, which is prosecutable under Rule 60bis of the Rules of Procedure and Evidence. The “objective likelihood” standard requires the application of ascertainable facts, rather than common sense or the testimony of a small sample of witnesses.

The proper mens rea requires “knowing and wilful interference with the Tribunal’s administration of justice.” Thus, it must be proven that the accused deliberately published the confidential material and knew that in doing so, their conduct was objectively likely to undermine public confidence in the Tribunal’s ability to protect witness confidentiality.

In terms of the Tribunal’s corporate jurisdiction, Contempt Judge Lettieri looked to Lebanese law in order to establish the material elements of attributing liability to legal persons. These are: (1) the criminal responsibility of a specific natural person; (2) the relationship of the natural person with the corporate accused; and (3) the authorization of the natural person’s criminal conduct on behalf of the corporate accused.


Actus Reus

Based on the subsequent articles published by Al Amin and Al Akhbar on the topic of the confidential witnesses, the Contempt Judge was satisfied that both accused released “highly detailed information which fully identified a total of 32 individuals as purported confidential Tribunal witnesses.” The Judge noted that the full contents of the original article - published on 15 January 2013 - remained available until 19 February, by which time the sensitive information and images had been blurred. The articles appeared to have been completely removed by 29 February.

Several witnesses testified to the effects of these articles. Witness AP06 claimed that following their publication, “he was the subject of gossip and fielded daily questions from people inquiring about his relationship with the Tribunal, his political affiliation and what he had done to have his picture published.” This witness further testified that he suffered business losses after the leaks. Witnesses AP07 and AP09 claimed that they feared being harmed by forces opposed to the STL. Two witnesses called on by the Defense testified that their faith in the Tribunal was not undermined, but still seemed to inadvertently imply that they suffered some degree of harm after the Al Akhbar publications were released. The Contempt Judge also considered a multitude of evidence in the form of Lebanese news articles and public reactions with respect to the negative perception of the Al Akhbar publications.

The Contempt Judge ruled on the basis of the above evidence that Al Amin and Al Akhbar adopted the role of a “political advocate” rather than a “neutral observer simply reporting on the results of an investigative inquiry.” Moreover, it was not demonstrated that publishing the witnesses’ personal details served any “journalistic purpose.” The testimony provided by witnesses for both the Amicus Prosecution and the Defense suggests that the individuals whose personal details were published suffered objective harm, or actively took measures to prevent such harm from occurring (including the purported recanting of testimony). Thus, the Contempt Judge Ruled that the Amicus Prosecutor had proved the actus reus beyond reasonable doubt.

Mens Rea

Contempt Judge Lettieri ruled that, on the basis of statements issued by Al Amin, it can be concluded that the accused had deliberately published witness details in spite (and because) of their confidentiality. Furthermore, in the 19 January article specific reference was made to the possibility of being found in contempt of the court as a result of publishing the witness information. Further analyses of the STL’s Rules of Procedure and Evidence published by Al Akhbar - and approved by Al Amin - demonstrate that the accused are aware of the functions of the Tribunal and the scope of its inherent power to prosecute contempt. Thus, the accused’s mens rea was proved beyond reasonable doubt.

Defense of Free Speech

Contempt Judge Lettieri again noted that “the journalistic profession may not be used as an impenetrable shield; where different legitimate interests are involved, they must be weighed in light of the priorities in a democratic society.” He pointed to the ICCPR, the Human Rights Committee, the ECHR, and Lebanese jurisprudence to demonstrate that reasonable limits to the freedom of expression are generally recognized.

Though the Contempt Judge recognized the press’s right to report on and criticize the Tribunal, he held that “there is a clear distinction between criticizing the Tribunal’s work and publishing the names (…) of 32 purported confidential witnesses.” It was not shown that this publication “was consistent with journalistic standards or ethics” or that it served any “journalistic value or pressing social need.” Furthermore, the inaccuracies contained within the Al Akhbar publications suggest that no meaningful attempt to verify the contents of the alleged “leaks” were made. This was found to be inconsistent with the basic tenets of investigative journalism. Thus, the Contempt Judge was not satisfied that Al Amin’s right to free expression exonerated him from prosecution.

The Judge further held that the requirements for attributing corporate liability to Al Akhbar for the actions taken by Al Amin on the organization’s behalf were satisfied. Under the by-laws of Al Akhbar and Lebanese criminal procedure, Al Amin’s notable positions within Al Akhbar allow the Tribunal to hold Al Akhbar liable for the criminal conduct perpetrated by Al Amin under the corporation’s auspices.

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