Oct 11, 2016

Reasons for Sentencing Judgment in the Case against Al-Amin and Al-Akhbar

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


[1] Clifford Chance LLP. (2012). Corporate Liability in Europe. London: Clifford Chance LLP.

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