The Prosecutor v. Ayyash et al.

Court	Special Tribunal for Lebanon (Trial Chamber), The Netherlands
Case number	STL-11-01/I/TC
Decision title	Decision to Hold Trial in Absentia
Decision date	1 February 2012
Parties	Salim Jamil Ayyash Mustafa Amine Badreddine Hussein Hassan Oneissi Assad Hassan Sabra
Categories	Terrorism
Keywords	human rights, in absentia, Special Tribunal for Lebanon, terrorism

Summary

Article 22 of the Special Tribunal for Lebanon permits the Tribunal to conduct trials in the absence of the accused, in absentia, if the accused has expressly waived his right to be present, has absconded, or cannot be found. Before a trial in absentia may proceed, however, all reasonable steps must be taken to secure the accused’s appearance before the Tribunal. In this decision, the Trial Chamber determined that all four of the accused had absconded or otherwise could not be found after Lebanese authorities employed numerous efforts to apprehend them in light of a several months long, comprehensive, and permeating media coverage of the indictment notifying the accused of the charges against them and their rights to participate in the trial. Thus, the Trial Chamber found that all reasonable steps had been taken to secure the presence of the accused, held that all four of the accused had absconded or otherwise could not be found, and ordered the trial to proceed in absentia.

Procedural history

In June 2011, the Prosecutor filed an amended indictment charging Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra with conspiracy to commit a terrorist act, among other charges, related to the 2005 bombing near the St. George Hotel in Beirut, Lebanon that killed a number of people including former Lebanese Prime Minister Rafik Hariri. See also ‘Confirmation of indictment shows that the Prosecutor’s investigation relies on credible evidence’, STL Press Release, 4 July 2011.

In August 2011, the President of the Tribunal released a public statement stating that Lebanese authorities were unable to personally serve the indictment on the accused or effect any arrests. The public statement was described as an “open letter to the four men accused” to inform them of their rights to participate in the trial, even by video conference, or the Tribunal could otherwise proceed in absentia.

In October 2011, the Pre-Trial Judge issued an order, pursuant to Rule 105 (A), seizing the Trial Chamber with determining whether to initiate proceedings in absentia because none of the accused had been apprehended or voluntarily submitted themselves to the Tribunal’s jurisdiction.

Related developments

The trial in the Ayyash et al. case began with opening statements on 16 January 2014 and concluded with closing arguments on 21 September 2018.

At the time of this writing, the judges have withdrawn to deliberate whether the prosecution has met its burden of proof beyond a reasonable doubt regarding the charges against them and will issue a judgment in due course. See ‘Conclusion of the closing arguments in the Ayyash et al. case’, STL Press Release, 21 September 2018.

Legally relevant facts

The four accused had not been seen at their last known place of residence since June 2011 when their names were publicised in connection with the indictment (para. 78-102). Lebanese authorities had unsuccessfully sought to arrest each on numerous occasions, ranging from 13 to 46 instances, at residences affiliated with each accused (para. 81, 88, 94, 102). The biographical details and photographs of each were widely publicised in both extensive news reporting and in the form of an advertising poster in Lebanese media in July, August, and September of 2011 (para. 52-70). Moreover, the media coverage included various Tribunal documents informing the accused of their rights to participate in a trial without being physically present (para 71-74).

Core legal questions

Under Article 22 of the Statute of the Tribunal, have all reasonable steps been taken to inform the accused of the charges and secure their appearance before the Tribunal such that a trial in absentia may proceed?
What, if any, obligations are imposed upon State authorities under international human rights law before proceeding to a trial in absentia?

Specific legal rules and provisions

Statute of the Special Tribunal for Lebanon (STL Statute), Art. 22, Doc. S/RES/1757, 29 March 2006
Rules of Procedure and Evidence of the Special Tribunal for Lebanon (STL RPE), Rule 105 (A) (iii), Doc. STL/BD/2009/01/Rev. 4, 20 March 2009

Court's holding and analysis

The Trial Chamber held, pursuant to Article 22 of the Statute of the Tribunal and Rule 106 of its Rules of Procedure and Evidence, to proceed to try Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra in absentia because “all reasonable steps” had been taken to secure the accused’s appearance before the Tribunal and that all attempts by the Lebanese authorities to apprehend them had failed (para. 111). Moreover, notice of the accused’s rights to participate in the trial was widely publicised in Lebanese media outlets such that it is “inconceivable that [the accused] could be unaware” of the indictment (para. 106). Thus, the Chamber determined that each had absconded and did not wish to participate in the proceedings. Accordingly, the Trial Chamber concluded that requirements under Rule 106 (A) (iii) to hold proceedings in absentia had been satisfied (para. 105-111).

Article 22 of the Statute of the Special Tribunal authorises a Trial Chamber to conduct trials in absentia if the accused has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his appearance before the Tribunal and inform him of the charges confirmed by the Pre-Trial Judge (para. 21).

Before initiating proceedings in absentia, the Trial Chamber must consult with the President to ensure that requirements under Article 22 (2) of the Statute have been met, and that all necessary steps have been taken with a view to ensuring the accused may, in the most appropriate way, participate in the proceedings (para. 22-23).

In determining what constitutes “all reasonable steps” under Article 22 (2), the Tribunal surveyed the differing requirements under ordinary Lebanese criminal procedure but noted that the ICTY and ICTR’s Rule 61 in absentia procedure offered the most guidance on the threshold issue of when “all reasonable steps” had been satisfied (para. 35-37). Specifically, the Tribunal agreed that Rule 61 decisions before the ICTY holding that reasonable time must be evaluated in respect of the circumstances specific to each case, was illustrative (para. 38).

In Martić, “all reasonable steps” had been satisfied when Croatian authorities stated that the accused was not located on Croatian territory, the Registrar had publicised an advertisement in the media, and the accused had acknowledged his indictment in a televised interview (para. 38). Similarly, in Rajić, the indictment was advertised on radio, television, and in popular newspapers such that the ICTY found such measures sufficient (para. 38). Moreover, in Karadzić and Mladić, publication of the indictment in three Bosnian newspapers sufficed (para. 38).

In this decision, publication of the indictment and the accused’s identities began in July 2011 in a variety of Arabic and English language newspapers and other media outlets (para. 52-56). In the months that followed, the media coverage had been “so frequent and extensive” and “overwhelming” as to notify the four accused of the indictment (para. 64-74). Additionally, sufficient measures had been taken by Lebanese authorities to secure the appearance of each and to inform each of the charges, and other tribunal documents (para. 74-104) as to be consistent with international human rights law (para. 32).

The Trial Chamber concluded that each of the accused had absconded and did not wish to participate in a trial despite being informed of the charges and possible methods of participating in trial (para. 106). Therefore, in the totality of the circumstances, the requirements under Rule 106 (A) (iii) to hold proceedings in absentia had been satisfied (para. 111).