As we previously reported,
Judge Lettieri recently convicted Ibrahim and Al-Amin and Al-Akhbar Beirut
S.A.L. of contempt and respectively issued each a fine of €20,000
and €6,000. This post will present an overview of the Contempt Judge’s written
reasons with respect to
sentencing and will provide additional commentary on a few matters.
Summary
Applicable
Law
In his
review of the applicable law, Judge Lettieri recalled that Rule 60bis of the Rules of Procedure and
Evidence provides that the maximum penalty for contempt shall be seven years’
imprisonment and a fine not to exceed €100,000. He also demonstrated that Rule
171(D), which requires that a sentence be issued with respect to each count on
the indictment, applies mutatis mutandis
to contempt proceedings. Judge Lettieri stated that he is guided by both Rule
172(B) and sentencing practice at the ICTY in contempt matters. He highlighted
the importance of the retributive and deterrent functions of criminal penalties
for contempt of court.
Ibrahim
Al-Amin
Judge Lettieri declared that Mr.
Al-Amin’s absence from the proceedings “will have no bearing on the
determination of the sentence in this case, except insofar that Mr. Al-Amin
will not receive mitigation for cooperating with the Prosecution.” The Judge
found Mr. Al-Amin’s crimes to be “particularly egregious” in light of their
gravity, as well as Mr. Al-Amin’s decision to publish a second article despite
public outcry in reaction to the first. The Judge reiterated that these
articles served no journalistic purpose in revealing these individuals’
identities and portraying them as “witnesses against Hezbollah.”
The various aggravating factors highlighted in the
written reasons include the fear experienced by witnesses, the overwhelmingly
negative public discourse surrounding the publications, witnesses’ loss of
confidence in the Tribunal’s ability to protect confidential information, and the
direct harm suffered by at least one witness as a result of the publications.
Al-Akhbar
Beirut
The
Judge rejected the Amicus Prosecutor’s argument that the continuous nature of
the Accused’s crimes allows the Tribunal to impose a separate fine for each day
the impugned material remained published. The Amicus had requested a two-year
prison sentence and a fine of €127,000. Judge Lettieri stated that the Rules of
Procedure and Evidence are unequivocal: the STL may only impose one sentence
for each count listed on the indictment, or issue a sentence that reflects a
totality of the counts. Al-Akhbar was convicted of only one count and thus may
only receive a maximum fine of €100,000.
In
light of the fact that a corporate accused had not previously been tried under
international criminal law, Judge Lettieri looked to Lebanese law in order to
determine an appropriate sentencing range. He noted that similar conduct in
Lebanon could carry a prison term of three months to two years and/or a fine of
€5,935-17,820.
Judge
Lettieri also noted the “separate penalty already imposed on Mr. Al-Amin as an
individual” when determining Al-Akhbar’s sentence.
Commentary
While the grounds for Mr. Al-Amin’s
sentence are predictable and seemingly uncontroversial, the reasoning behind
Al-Akhbar’s sentence leaves more questions than answers. To recap, Judge
Lettieri affirmed that:
I note that this is the first occasion in which a legal person has been convicted of the obstruction of justice in an international criminal setting. I find, however, that the same sentencing principles of retribution and deterrence that apply to natural persons, must equally apply to legal persons (emphasis added).
The Statute of the STL designates
the Lebanese Code of Criminal Procedure (LCCP) as the Tribunal’s primary source
of applicable law, and Rule 3(A) of the Rules of Procedure and Evidence (RPE) state
that its provisions should be interpreted - in order of precedence - in
consideration of customary international law, international human rights
standards, general principles of law, and, “as appropriate,” the LCCP. In coming to his sentencing judgment, Judge Lettieri decided to look to Lebanese law for a principle
source of guidance.
Article 24(1) of the STL Statute stipulates that,
“the Trial Chamber shall, as appropriate, have recourse to international
practice regarding prison sentences and to the practice of the national courts
of Lebanon.” The Appeals Chamber ruled - in
opposition to Judge Lettieri’s opinion - that the provisions of Rule 3(A)
constitute sufficient guidance with respect to the trial of corporate accused,
such that the principle of in dubio pro
reo (when in doubt, side for the accused) enshrined in Rule 3(B) need not
be activated. The Contempt Judge was led by Lebanese practice rather than international practice, and as acknowledged above, the practice of looking to Lebanese law with respect to
procedural matters is well-established at the STL.
A cursory review of corporate liability worldwide
suggests that it is unusual that another Accused’s sentence can be considered a
mitigating factor for the corporate accused’s sentence. Further research would
be required to determine sentencing practices for corporate accused in Lebanon
but of 12 European countries included in one overview, only the Netherlands was
described as forming no distinction between legal and natural persons with
respect to the imposition of fines. Several states, including Italy,
specifically maintain trials of legal and natural persons independent from the
other. Most simply give no indication that one accused’s sentence may
constitute a mitigating factor in the sentence of another.[1]
Finally, it
seems strange that the Tribunal issued an entire corporation - which presumably
enjoys access to larger than the average individual - such a low fine. This
penalty falls well below Al-Amin’s, and is actually the smallest fine ever
issued in a contempt case at an international tribunal by about €1,500. The Defense did argue that a harsh financial penalty could
punish Al-Akhbar’s employees and their families rather than the corporation
itself, but this was not discussed in Judge Lettieri’s written decision
